Chevron Mining, Inc. f/k/a The Pittsburg & Midway Coal Mining Company

National Labor Relations Board - Board Decisions

Sep 29, 2010

355 N.L.R.B. 1210 (N.L.R.B. 2010)

PITTSBURG & MIDWAY COAL MINING CO.
355 NLRB No. 197
1210
The Pittsburg & Midway Coal Mining Company and
United Mine Workers of America. Cases 27–
CA–19566–1 and 27–CA–19567–1
September 29, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
Upon a charge and an amended charge filed April 6
and 7, 2005, by United Mine Workers of America, the
General Counsel of the National Labor Relations Board
issued an order consolidating cases, a consolidated com-
plaint, and a notice of hearing on October 28, 2005, al-
leging that The Pittsburg & Midway Coal Mining Com-
pany had violated Section 8(a)(3), (5), and (1) of the Act.
Specifically, the consolidated complaint alleges that the
Respondent violated Section 8(a)(3) and (1) of the Act
by modifying the terms of the employees’ bonus plan in
response to the Union’s exercise of its contractual right
to call “Memorial Period” work stoppages at the North
River Mine and to discourage employees from engaging
in future such work stoppages. The complaint further
alleges that because the modification of the bonus plan
adversely affected the Union’s contractual right to call
memorial days at the Respondent’s North River,
McKinley, Kemmerer, and York Mines, the modification
also violated Section 8(a)(5) and (1).
On August 18, 2006, the Respondent, the Union, and
the General Counsel filed with the Board a joint stipula-
tion of facts and a motion to transfer this proceeding to
the Board. The parties waived a hearing before an ad-
ministrative law judge and agreed to submit the case di-
rectly to the Board for findings of fact, conclusions of
law, and a Decision and Order, based on a record consist-
ing of the charge, the order consolidating cases, the con-
solidated complaint, the notice of hearing, the answers to
the complaint, the orders postponing the hearing, the
stipulated facts and exhibits, and the parties’ statement of
issues presented.
On January 16, 2007, the Board approved the stipula-
tion of facts and granted the motion. Thereafter, the
General Counsel, the Respondent, and the Union filed
briefs, and the General Counsel and the Union filed reply
briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and briefs, the Board makes the
following

1 The Board rejected the Respondent’s answering brief as untimely.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Missouri corporation with a prin-
cipal office and place of business in Englewood, Colo-
rado. At all relevant times, the Respondent was engaged
in the business of operating coal mines at the following
locations: the North River Mine in Alabama, the
McKinley Mine and the York Canyon Mine in New
Mexico, and the Kemmerer Mine in Wyoming. In the
course and conduct of its coal mining business, the Re-
spondent annually purchases and receives at its Kem-
merer Mine goods, materials, and services valued in ex-
cess of $50,000 directly from points and places outside
the State of Wyoming. The Respondent is a wholly-
owned indirect subsidiary of Chevron Corporation, a
multinational publicly-traded company in the energy
industry.
The parties stipulated, and we find, that at all material
times, the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
At all material times, the Union represented the Re-
spondent’s employees at the four mines, which are situ-
ated in two of the Union’s districts: District 20 (North
River Mine) and District 22 (Kemmerer Mine, McKinley
Mine, and the now-closed York Canyon Mine). Since
1978, the Respondent and the Union have operated under
successive collective-bargaining agreements containing
the following “Memorial Periods” clause:

The International Union, United Mine Workers of
America, may designate memorial periods not exceed-
ing a total of ten (10) days during the term of this
agreement at any mine or operation provided it shall
give reasonable notice to the Employer. (Emphasis
added.)

A memorial period or day is a work stoppage that re-
sults in the cessation of operations at the mine(s) at
which it is called. Arbitrators’ decisions included in the
parties’ stipulation indicate that the Union has called
memorial days to commemorate mine disasters, to allow
employees to take time off for union business, to support
the Union’s position in local disputes, and even to permit
employees to take a day off at the start of the hunting
season, among other reasons.
Since 1995, the Respondent and the Union have also
been parties to a letter of agreement (LOA), separate
PITTSBURG & MIDWAY COAL MINING CO. 1211
from the collective-bargaining agreement, under which
union-represented employees participate in Chevron
Success Sharing (CSS or bonus plan). The letter of
agreement states in pertinent part:

[The Respondent] may, without prior notice, modify,
amend or terminate CSS, but it is agreed that should
any changes be made, said changes shall be communi-
cated to the Union as soon as practicable.

. . . it is understood and agreed that any dispute as to the
interpretation or application of CSS or this letter of
agreement is not subject to the grievance and arbitra-
tion provisions of the collective bargaining agreements
of the Parties, and it is understood that the Union may
terminate this agreement if the Union disagrees with
any [Respondent] decision with regard to CSS.

During negotiations over the LOA, in response to the
Union’s objection, the Respondent removed proposed
language that would have given the LOA precedence
over the collective-bargaining agreement. The stipulated
record indicates that the Respondent has modified the
plan in certain years to change the percentage of the bo-
nus payout. Additionally, in 2001, it modified the bonus
plan to require forfeiture of the bonus by any employees
who engage in an unauthorized work stoppage. The Un-
ion did not object to any of those modifications.
In 2004, the Union called memorial days at the Re-
spondent’s North River Mine on February 26, 27, and 28,
and July 19, 21, and 30, in order to place economic pres-
sure on the Respondent with respect to ongoing griev-
ances that were being taken to arbitration. The stipulated
record does not reveal the nature of the grievances.
On February 3, 2005, the Respondent notified the Un-
ion that it had modified the bonus plan to include a pro-
vision requiring employees to forfeit the bonus at any
mine at which the Union called a memorial day, if the
memorial day was called on less than a districtwide ba-
sis. The modification states:

There will be no financial metric pay out at any mine
where the UMWA calls a memorial period or day for
such mine without having called such a memorial pe-
riod or day for all of the UMWA represented mines or
facilities within the UMWA District in which such
mine is located.

The Respondent acknowledges that the provision was
added in response to the Union’s calling the 6 memorial
days at the North River mine during the preceding year.
B. The Parties’ Contentions
The General Counsel and the Union contend that the
Respondent unlawfully modified the bonus plan in re-
taliation for the Union and the employees’ exercise of
their contractual right to call memorial days at individual
mines. The General Counsel and the Union also contend
that the unilateral modification was unlawful insofar as it
was intended to, and would, deter employees from the
exercise of their contractually guaranteed right to partici-
pate in memorial days. They further argue that the bonus
plan modification adversely affected the exercise of the
employees’ contractual rights, thereby undercutting the
Union’s status as bargaining representative.
The Respondent contends that its change to the bonus
plan was lawful because it acted without antiunion ani-
mus and because the Union’s work stoppages that trig-
gered the Respondent’s change were not protected by the
Act.2 It further contends that the memorial days that the
Union called at the North River Mine constituted eco-
nomic strikes, and that its modification of the bonus plan
was an economic weapon lawfully employed in response.
Finally, the Respondent asserts that the 1995 LOA ex-
pressly gave it the right to amend or terminate the plan
and, therefore, that its 2005 amendment of the plan did
not violate the Act.
C. Discussion
The parties stipulated that the alleged 8(a)(3) violation
should be analyzed using the Board’s Wright Line test.3
Having accepted the stipulation, we will use the Wright
Line framework for our analysis.
To meet his initial burden under Wright Line, the Gen-
eral Counsel must show, by a preponderance of the evi-
dence, that the employees’ protected conduct was a mo-
tivating factor in the employer’s decision. Shearer
Foods, Inc., 340 NLRB 1093, 1094 (2003); Manno Elec-
tric, 321 NLRB 278, 280 (1996). Once the General
Counsel carries his initial burden, the burden of persua-
sion “shift[s] to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct.” Wright Line, 251 NLRB at
1089.
Here, it is undisputed that the employees’ memorial
day work stoppages were a motivating factor in the Re-
spondent’s decision to modify its bonus plan. Therefore,
the only question to be decided is whether the employ-

2 The Respondent also suggests that the General Counsel’s argu-
ments that memorial days are protected activity are beyond the scope of
par. 5(b) of the complaint. However, pars. 5(a), (b), and (c) clearly
encompass those arguments.
3 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
ees’ participation in the memorial days constituted pro-
tected activity under the Act. If the General Counsel
establishes that the work stoppages constituted protected
conduct, the General Counsel has proved a violation of
the Act, absent some other affirmative defense. As dis-
cussed below, we find that the General Counsel has es-
tablished that the work stoppages constituted protected
conduct and that the Respondent did not meet its burden
of proving its affirmative defenses.
Did the Memorial Periods Constitute Protected
Activity under the Act
We begin our analysis with the principle that an em-
ployee’s exercise of rights provided for in a collective-
bargaining agreement constitutes protected activity under
the Act. NLRB v. City Disposal Systems, 465 U.S. 822,
831–832 (1984); Rogers Corp., 344 NLRB 504, 513
(2005); Wheeling-Pittsburgh Steel, 241 NLRB 1214,
1221 (1979), enfd. in rel. part 618 F.2d 1009 (3d Cir.
1980). Here, the parties’ contract explicitly granted the
Union the right to call memorial days and placed only
two restrictions on that right: the number of memorial
days called could not exceed 10 during the contract pe-
riod, and the Union was required to provide the Respon-
dent with advance notice. The Union violated neither of
those restrictions. It would appear, therefore, that by
exercising their right to participate in memorial days in a
manner consistent with the contract, the employees were
engaging in conduct protected by the Act.
The Respondent nevertheless argues that the Board
should find that the work stoppages did not constitute
protected conduct and, therefore, that its modification of
the bonus plan in response to the stoppages did not vio-
late the Act. Given the General Counsel’s showing, the
burden of proof shifted to the Respondent to demonstrate
that the work stoppages were unprotected. See Silver
State Disposal Service, 326 NLRB 84, 85–86 (1998).
First, the Respondent asserts that the Union’s invoca-
tion of the memorial day provision is distinct from the
exercise of Section 7 rights by employees. Further as-
serting that Section 7 protects employees and not unions,
the Respondent contends that the Union’s action in call-
ing memorial days was not protected by the Act. This
argument is without merit. Under the contract, the Un-
ion, acting as the employees’ representative, designates
the memorial days and then the employees, exercising
their contractual rights, take the memorial days. As the
parties stipulated, “the Union may designate ‘Memorial
Periods’ . . . to be taken by employees.” Here, moreover,
it was the employees at the North River Mine who peti-
tioned the Union’s president, Cecil Roberts, to call the
memorial days at issue. The Union’s contractual right to
designate memorial days has no meaning apart from the
employees’ ability to participate in those memorial days
and their participation is the exercise of a Section 7
right.4
Next, the Respondent argues that the memorial days
did not constitute protected conduct because they were
called in violation of the parties’ implied no-strike
agreement. Citing Gateway Coal Co. v. Mine Workers,
414 U.S. 368 (1974), the Respondent asserts that, be-
cause the parties’ collective-bargaining agreement con-
tained an arbitration provision, the Union implicitly
agreed not to strike over arbitrable matters. As a result,
the Respondent further asserts, the memorial days called
in support of grievances at the North River Mine were
effectively taken in derogation of the collective-
bargaining agreement, and therefore, were not protected.
For the following reasons, we disagree.
In Gateway Coal, the Court considered whether a dis-
trict court had the authority to enjoin a work stoppage
that had been called over a safety concern at a mine.
After finding that the safety dispute was arbitrable, the
Court concluded that the union was under an implied
contractual duty not to strike based on the broad arbitra-
tion clause contained in the parties’ collective-bargaining
agreement. Quoting Boys Markets, Inc. v. Retail Clerks
Union, 398 U.S. 235, 248 (1970), the Court reasoned,
“[A] no-strike obligation, express or implied, is the quid
pro quo for an undertaking by the employer to submit
grievance disputes to the process of arbitration.” Gate-
way, 414 U.S. at 382.
The Gateway Court nevertheless recognized that, al-
though “an arbitration agreement is usually linked with a
concurrent no-strike obligation, . . . the two issues remain
analytically distinct.” Id. As the Court concluded:

It would be unusual, but certainly permissible, for the
parties to agree to a broad mandatory arbitration provi-
sion yet expressly negate any implied no-strike obliga-
tion. Such a contract would reinstate the situation
commonly existing before our decision in Boys Mar-
kets. Absent an explicit expression of such an inten-
tion, however, the agreement to arbitrate and the duty
not to strike should be construed as having coterminous
application.

Id. Plainly, however, the parties to a contract are free to,
“expressly negate” any implied no-strike obligation in
whole or in part.

4 The Respondent’s reliance on language from Lechmere, Inc. v.
NLRB, 502 U.S. 527, 532 (1992), is misplaced. Lechmere involved the
question of whether nonemployee union organizers had a right of access
to employer’s private property. Here, by contrast, the employees’
exercise of their own contract right—to engage, subject to restrictions,
in work stoppages—is the issue.
PITTSBURG & MIDWAY COAL MINING CO. 1213
The question presented here is whether, based on the
parties’ agreement to arbitrate their disputes, the memo-
rial days called at the North River Mine violated an im-
plied no-strike agreement and, thus, constituted unpro-
tected conduct, or, instead, whether the memorial day
provision (at least where the Union satisfies its terms)
expressly negated the implied no-strike clause. We find
the latter reading of the contract persuasive, and thus
conclude that the memorial days remained protected.
Certainly, the parties’ collective-bargaining agreement
contains an implied no-strike agreement that, under
Gateway Coal, would generally prohibit work stoppages.
The memorial days called at the North River Mine were,
by definition, work stoppages. The parties’ agreement,
however, expressly allowed the Union to call up to 10
memorial day periods during the term of the agreement
upon reasonable notice to the Employer. And, on its
face, the memorial day provision places no restrictions
on the Union’s ability to call memorial days for whatever
reason it chooses.
Consistent with that reading, the stipulation, as well as
the court and arbitration decisions appended as exhibits
to the stipulation,5 show that, historically, the Union has
called memorial days for all sorts of reasons, including to
allow time off for local officers to attend union conven-
tions, to permit employees (more than an employer
would allow) to take advantage of the opening of hunting
season, and in support of grievances over safety issues.6
Indeed, one of the attached court decisions in which the

5 The stipulation states that “the history and purpose of the Memorial
Periods Clause was addressed” in the attached decisions.
6 Arch of West Virginia v. Mine Workers Local 5958, Civil Action
No. 2:96-2008 (S.D. W.Va. Nov. 25 1996); Eastern Associated Coal
Corp., Wells Plant and Mine Workers District 17, Local 781, Case No.
02-17-04-176 (Arb. Kauffman, Feb. 28, 2005); Mine Workers District
23, Local Union 3000 v. Peabody Coal Co. Martwick Mine, Case 88-
23-91-72 (Arb. Phelan, Nov. 8, 1991).
The arbitration decision in Mine Workers District 23, Local Union
3000 v. Peabody Coal Co. Martwick Mine, Case 88-23-91-72 (Arb.
Phelan, Nov. 8, 1991), is particularly instructive. There, the arbitrator
stated:
A memorial period is commonly understood to be a time set aside to
observe the memory of a particular event or person, but in recent
years, memorial periods under this provision have been used to pro-
vide employees with time off work to participate in certain activities
deemed important by the International Union, and have also been used
to provide a cooling off period in the course of a work stoppage in the
coal fields. There is no limitation in the contract which restricts the
purpose for which a memorial period may be used. . . . In effect, the
memorial period is an authorized stoppage of work which is specifi-
cally recognized by the contract. . . .
In another award, the arbitrator stated that the company took the po-
sition that “[t]here is no question that the union has a contractual right
to call memorial days without giving the company a reason for the
call.” United Mine Workers District 17, Local 781 v. Eastern Associ-
ated Coal Corp., Case 01-17-04-176 (Feb. 28, 2005).
“purpose of the Memorial Periods Clause was addressed”
is a United States District Court decision denying a mo-
tion for a preliminary injunction barring a local of the
Union from calling memorial days to further its position
in a dispute over a contractual attendance rule.7 The
company argued the stoppages were barred by the im-
plied no-strike clause. The court, relying on Gateway
Coal, held that the memorial day clause created an ex-
press exception to the implied prohibition because it
“gives the Union a unilateral right to call a memorial
period . . . as has been shown by the lengthy history of
memorial periods inclusion in . . . contracts, case author-
ity and arbitration decisions.” The court specifically
found that the contractual right to call memorial days “is
a bargaining chip that the Union can use in an often
‘fractious’ relationship that often exists between labor
and management in the coal industry.”
These stipulated facts clearly show that the “purpose
of the Memorial Periods Clause” was not limited to ad-
dressing issues other than grievances covered by the con-
tract’s arbitration clause. The Respondent makes no at-
tempt to show that the parties had a past practice under
which a memorial day could not be called in support of a
grievance. And, so far as the record shows, the Respon-
dent never asserted in 2004, when 6 such memorial days
were called, that the employees’ conduct was unpro-
tected.
In fact, the Respondent’s response to the North River
Mine memorial day stoppages negates its Gateway Coal
argument. The Respondent’s amendment of the LOA
permitted employees to continue to receive a bonus even
if they took a memorial day over an arbitrable grievance
so long as they did so districtwide. At the same time, it
deprived employees of a bonus based on taking a memo-
rial day on a less than districtwide basis even if it related
to a nonabitrable matter (such as the death of a miner).
The sanction is thus both under-inclusive and over-
inclusive in relation to the Respondent’s argument. In
the absence of evidence or argument that the memorial
day provisions of the contract should be construed in a
manner other than one consistent with their plain lan-
guage, i.e., as restricting memorial days only by limiting
their number and requiring reasonable notice, we are not
willing to interpret the implied no-strike clause so
broadly as to overcome the express contract language
authorizing these particular work stoppages.

7 Arch of West Virginia v. Mine Workers Local 5958, C.A. No. 2:96-
2008 (S.D.W.Va. Nov. 25, 1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
Additional Affirmative Defenses
In addition to arguing that the memorial day periods
did not constitute protected activity under the Act, the
Respondent raises additional affirmative defenses.
First, the Respondent argues that its modification of
the bonus plan did not violate the Act because the action
was motivated, not by animus, but by a desire to maxi-
mize its ability to share profits with employees. In sup-
port of this position, it notes that, at the same time the
bonus plan was modified in 2005, all employees, includ-
ing those at the North River Mine, received a 6-percent
bonus and that, as a result of the bonus, the North River
employees received more than $720,000.
We find this argument unavailing. Simply put, the Re-
spondent acknowledges modifying the employees’ bonus
plan, in a restrictive manner, as a result of the North
River employees’ protected activity. The modifications,
in turn, threaten to strip employees of any bonus under
the plan if they engage in similar protected activity.8 The
fact that this adverse action was accompanied by a bonus
payment is irrelevant. What is significant is the reason-
able and foreseeable effect the Respondent’s action
would have on employees continuing to assert their pro-
tected rights.9
Second, the Respondent argues that the 1995 LOA re-
served to it the unfettered right to modify the bonus plan.
Although the language of the LOA permitted the Re-
spondent to make changes to the plan over objections by
the Union, it does not follow that the Respondent re-

8 Under the bonus policy as it existed prior to the 2005 changes, em-
ployees would experience a diminution of their bonus directly propor-
tional to the number of days they ceased work as a result of a memorial
period. Under the new policy, employees who take even a single me-
morial day on a less than districtwide basis forfeit their entire bonus for
the year, regardless of the overall profitability of the Respondent or
whether the mine where the employees are employed meets its produc-
tion goals. Not surprisingly, the Union regarded that change as adverse
to employees’ interests. That the Union did not thereafter call a local
memorial day, and employees did not suffer the consequent loss of
bonus payments does not, as Respondent argues, compel a dismissal of
the complaint. It is long settled that actual loss is not necessary to
establish a violation. See e.g., Ford Motor Co., 131 NLRB 1462, 1487
(1961). Indeed, here, the lack of loss may speak to the chilling effect
the Respondent’s bonus change had on employees’ exercise of their
Sec. 7 rights.
9 Accepting the Respondent’s argument would permit employers to
nullify the right to strike contained in Sec. 7 of the Act and expressly
preserved in Sec. 13. An employer may believe that strikes cost it
money, may believe that threatening employees with adverse economic
action if they strike will increase its revenue, and may even intend to
share any increased revenue with its employees, but the Act rests on a
congressional judgment that it is up to employees and not their em-
ployer to decide when it is in their interest to exercise the right to strike
and the Act makes it an unfair labor practice for employers to coerce
employees in the exercise of their rights, as the change in the bonus
plan plainly did here.
served the right to amend its plan for unlawful reasons.
It is well established that a party cannot exercise its con-
tractual rights in violation of the Act. Reno Hilton Re-
sorts, 326 NLRB 1421 (1998), enfd. 196 F.3d 1275
(D.C. Cir. 1999); accord: RGC (USA) Mineral Sands,
Inc. v. NLRB, 281 F.3d 442 (4th Cir. 2002); NLRB v. Joy
Technologies, Inc., 990 F.2d 104 (3d Cir. 1993).
Finally, citing Central Illinois Public Service Co., 326
NLRB 928 (1998), request for review denied sub nom.
Electrical Workers Local 702 v. NLRB, 215 F.3d 11
(D.C. Cir. 2000), the Respondent asserts that its modifi-
cation of the bonus plan was the equivalent of locking
out striking employees, i.e., battling one economic
weapon with another.
Central Illinois involved the legality of an employer’s
lockout in response to its employees’ use of a variety of
pressure tactics short of a traditional, open-ended strike
during negotiations for a successor collective-bargaining
agreement.10 The Board assumed, without deciding, that
the inside game tactics were protected activity and ana-
lyzed the facts using the “inherently destructive” test set
forth in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26
(1967). After determining that the lockout was not in-
herently destructive of important employee rights and
that the harm was “comparatively slight,” the Board next
assessed whether the employer possessed a legitimate
business justification for engaging in the lockout. Con-
cluding that the lockout was a legitimate economic
weapon employed in response to the Union’s tactics in
support of its bargaining position, the Board majority
declined to find a violation. Central Illinois, 326 NLRB
at 929–934.
We decline to consider this argument. The parties
jointly moved the Board to decide this case based on a
stipulation that included a joint “statement of the issues
presented for review.” That statement asked the Board to
consider only “[w]hether, under Wright Line, the Em-
ployer violated Sections 8(a)(3) and (1).” In effect, the
Respondent is now asking us to apply the alternative
Great Dane analysis. In our view, the argument is in-
consistent with the terms of the stipulation.11

10 The tactics included refusing to work voluntary overtime, present-
ing grievances en masse, and parking company vehicles in the evenings
in a manner making it more difficult for the employer to respond to
after-hour service emergencies.
11 Even if we had been properly presented with this argument, we
would find it baseless. An employer can, under certain circumstances,
lockout all its employees as a defense against certain forms of protected
activity, see, e.g., International Shoe Co., 93 NLRB 907 (1951), and
cases cited in American Ship Building, 380 U.S. 300, 307 (1965), and
even, under appropriate circumstances, lockout all its employees in
order to pressure them to come to terms on an agreement. Id. at 318.
But what an employer cannot do is selectively lockout or otherwise
punish only those employees who engage in protected conduct. See,
PITTSBURG & MIDWAY COAL MINING CO. 1215
On the basis of all of the foregoing, we find that the
Respondent violated Section 8(a)(3) and (1) by modify-
ing its bonus plan in response to its employees’ exercise
of a protected, contractual right. Having so found, we
find it unnecessary to decide whether the same conduct
also violated Section 8(a)(5) because the remedy would
not be substantially different.
CONCLUSIONS OF LAW
1. The Respondent Pittsburg & Midway Coal Mining
Company is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Mine Workers Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. (a) The following employees of the Respondent
who are employed at the Respondent’s North River
Mine, herein called the North River Mine unit, constitute
a unit appropriate for the purpose of collective-
bargaining within the meaning of Section 9(b) of the Act:

All classified employees engaged in the production of
coal, including removal of overburden and coal waste,
preparation, processing and cleaning of coal and trans-
portation of coal (except by waterway or rail not owned
by Employer), repair and maintenance work normally
performed at the mine site or at a central shop of the
Employer and maintenance of gob piles and mine roads
and work of the type customarily related to all of the
above; but excluding coal inspectors, weigh bosses
where employees are paid by the ton, watchmen,
clerks, engineering and technical forces working at or
from a district or local mine office, essential supervi-
sors such as mine foremen or assistant mine foremen
who, in the usual performance of their duties may make
examinations for gas as prescribed by law and such
other supervisors as are in charge of any class of labor
inside or outside the mines and who perform no pro-
duction work.

(b) Since 1988 and at all material times, the Union, by
virtue of Section 9(a) of the Act, has been the designated
exclusive collective-bargaining representative of the
North River Mine unit.
4. (a) The following employees of the Respondent
who are employed at the Respondent’s Kemmerer Mine,
herein called the Kemmerer Mine unit, constitute a unit

e.g., Schenk Packing Co., 301 NLRB 487 (1991). Such a selective
lockout was not in any way upheld in Central Illinois and it is precisely
such a selective sanction that is at issue here. Central Illinois simply
does not provide the form of broad immunity for economic retaliation
or the threat of such retaliation against employees who engage in pro-
tected activity of the form sought by the Respondent in this case.
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:

All classified employees engaged in the production of
coal, including removal of overburden and coal waste,
preparation, processing and cleaning of coal and trans-
portation of coal in and around the mine to a screening,
crushing, washing or other preparation facility, or other
mine-related operation, repair and maintenance work
normally performed at the mine site or at a central shop
of the Employer, maintenance of mine roads, rough
grading in mine reclamation work and work customar-
ily related to all of the above; but excluding coal in-
spectors, weigh bosses where employees are paid by
the ton, watchmen, clerks, engineering and technical
forces working at or from a district or local mine office,
essential supervisors such as mine foremen or assistant
mine foremen who, in the usual performance of their
duties may make examinations for gas as prescribed by
law and such other supervisors as are in charge of any
class of labor inside or outside the mines and who per-
form no production work.

(b) Since 1988 and at all material times, the Union, by
virtue of Section 9(a) of the Act, has been the designated
exclusive collective-bargaining representative of the
Kemmerer Mine unit.
5. (a) The following employees of the Respondent
who are employed at the Respondent’s McKinley Mine,
herein called the McKinley Mine unit, constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:

All classified employees engaged in the production of
coal, including removal of overburden and coal waste,
preparation, processing and cleaning of coal and trans-
portation of coal in and around the mine and to a
screening, crushing, washing or other preparation facil-
ity, or other mine-related operation (except by water-
way or rail not owned by P&M) and maintenance of
gob piles and mine roads, and work customarily related
to all of the above; but excluding watchmen, clerks,
engineering and technical forces of P&M working at or
from a District or Local mine office, and supervisors
such as mine foremen, assistant mine foremen, and
such other supervisors as are in charge of any class of
labor inside or outside of the mine and who perform no
production work.

(b) Since 1988 and at all material times, the Union, by
virtue of Section 9(a) of the Act, has been the designated
exclusive collective-bargaining representative of the
McKinley Mine unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
6. (a) At all material times, the following employees
who were employed at the Respondent’s York Canyon
Mine, herein called the York Canyon Mine unit, consti-
tuted a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:

All classified employees engaged in the production of
coal, including removal of overburden and coal waste,
preparation, processing and cleaning of coal and trans-
portation of coal (except by waterway or rail not owned
by the Employer, repair and maintenance work nor-
mally performed at the mine site or at a central shop of
the Employer and maintenance of gob piles and mine
roads and work of the type customarily related to all of
the above; but excluding coal inspectors and weight
bosses where employees are paid by the ton, watch-
men, clerks, engineering and technical forces of the
Employer, working at or from a district or local mine
office, and supervisors such as mine foremen and assis-
tant mine foremen who, in the performance of their du-
ties may make examination for gas as prescribed by
law and such other supervisors as are in charge of any
class of labor inside or outside the mines and who per-
form no production work.

(b) Since 1988, the Union, by virtue of Section 9(a) of
the Act, was the designated exclusive collective-
bargaining representative of the York Mine unit.
7. By discriminatorily modifying its Chevron Success
Sharing plan in response to the Union’s calling of memo-
rial periods at the North River Mine, the Respondent has
engaged and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(3) and (1) of the Act by modifying the Chevron
Success Sharing plan to require that employees forfeit
bonuses in the event that the Union calls contractually
sanctioned memorial days on other than a districtwide
basis, we shall order that it cease and desist and take cer-
tain affirmative action designed to effectuate the policies
of the Act. In the event that the Respondent has withheld
bonuses in response to the calling of memorial days pur-
suant to the collective-bargaining agreements then in
effect, we shall order that the Respondent make employ-
ees whole for the amount of the bonuses, with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The Respondent, Pittsburg & Midway Coal Mining
Company, Englewood, Colorado, it officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily modifying its Chevron Success
Sharing plan to require that employees forfeit bonuses if
the Union calls contractually sanctioned memorial peri-
ods on less than a districtwide basis.
(b) In any like or related manner interfering with, re-
training, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Rescind the discriminatory modification of its
Chevron Success Sharing plan that requires employees to
forfeit of bonuses in the event the Union calls memorial
days on less than a districtwide basis.
(b) Make employees whole for any lost bonuses occa-
sioned by the implementation of the discriminatory
modification of the Chevron Success Sharing plan, with
interest.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, records relating to the calculation and
payment of the bonuses, and all other records, including
an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its North River Mine in Alabama, Kemmerer Mine in
Wyoming, McKinley Mine in New Mexico, and, if re-
opened, its York Canyon Mine in New Mexico, copies of
the attached notice marked “Appendix.”12 Copies of the
notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Within 14 days of service by the Region, duplicate
and mail, at its own expense and after being signed by
the Respondent’s authorized representative, copies of the
notice to all current employees and former employees
employed by the Respondent at any time since February

12 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
PITTSBURG & MIDWAY COAL MINING CO. 1217
2005 at the former York Canyon Mine in New Mexico,
and at any other mine involved in these proceedings if
during their pendency the Respondent has gone out of
business there or closed it.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discriminatorily modify our Chevron
Success Sharing plan to require that you forfeit bonuses
if the Union calls contractually sanctioned memorial pe-
riods on less than a districtwide basis.
WE WILL NOT in any like or related manner interfere
with, retrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the National Labor Relations
Act.
WE WILL rescind the discriminatory modification to the
Chevron Success Sharing plan.
WE WILL make you whole for any lost bonuses occa-
sioned by our implementation of the discriminatory
modification of the bonus plan, with interest.
THE PITTSBURG & MIDWAY COAL MINING
COMPANY