Clinchfield Coal Co.

National Labor Relations Board - Board Decisions

Aug 7, 1985

275 N.L.R.B. 1384 (N.L.R.B. 1985)

1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clinchfield Coal Company and Local Union 7950,
United Mine Workers of America . Case' 5-CA-
15666
7 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON, AND' MEMBERS
HUNTER-AND DENNIS
On 20 April 1984 Administrative Law Judge
William N. Cates issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations 'Board has delegat-
ed its authority in this proceeding to a three-
member panel..
The Board, has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions only to the extent consistent with this
Decision and Order.
The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing
to provide certain requested information to 'the
Union. The judge found that the dispute was not
an appropriate matter for deferral to arbitration
and that the requested information was relevant
and necessary to the Union's performance of its
collective-bargaining responsibilities. The judge dis-
missed the complaint, however, finding that several
portions of the parties' collective-bargaining agree-
ment established that the Union clearly and unmis-
takably waived its statutory, right to the informa-
tion it requested.2
We agree with the judge that deferral is inappro-
priate in this case and that the requested informa-
tion concerning the contracting out of maintenance
or repair work customarily performed by unit em-
ployees at the Respondent's central 'shop is relevant
and necessary. Contrary to the judge, we find that
the parties' contract does not establish that the
Union waived its statutory right to request the in-
formation from the Respondent.
As stated by the judge, an employer has a statu-
tory obligation to supply requested information
which is reasonably necessary to the exclusive col-
lective-bargaining representative's performance ' of
t In sec IV,A, par 5 of his decision the judge refers to the' "National
Bituminous Coal Wage Agreement of 1979 " The record shows that the
agreement was executed in 1978 Also in sec IV,A of his -decision the
judge found that "Fogg stated that although he may have mentioned one
or two things he thought was being subcontracted out that he did not
describe -at all the work at the step 2 meeting " The latter portion of the
sentence should read Fogg "did not describe all the work at the step 2
meeting "
2 The contractual provisions relied on by the judge are set forth in Ap-
pendix B
its responsibilities. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956). These responsibilities include the
administration of the contract and the processing
and evaluating of grievances. Thus, an employer is
obligated to provide information requested for-the
purpose of handling grievances. T.R. W., Inc., 202
NLRB 729 (1973); Safeway Stores, 236 NLRB, -1126
(1978).
A union may contractually relinquish a statutory
bargaining right if the relinquishment is expressed
in 'clear and - unmistakable terms. - Metropolitan
Edison Co. v. NLRB, 460 U.S. 693 (1983); Timken
Roller Bearing Co., 138 NLRB 15, 16 (1962). In
Procter & Gamble Mfg. Co. v. NLRB, 603 F.2d
1310, 1318 (8th Cii. 1979), the court stated..that
"[f]or there to be a waiver of a right to-informa-
tion, the language used must be clear and unmistak-
able. Likewise, there must - be a conscious relin-
quishment by the Union, clearly intended and ex-
pressed to give up the right." The mere existence
of a grievance procedure is not sufficient to consti-
tute a waiver of a union's right to request informa-
tion: Timken' Roller Bearing Co., supra; Hekman
Furniture Co., 101 NLRB 631, 632 (1952).
Reading article XXIII, section (c), and- article
XXVII of the contract in conjunction, the judge
concluded that all differences between the parties
are to be resolved by the machinery of. the collec-
tive-bargaining agreement. The judge noted that
the Supreme Court in Gateway Coal Co. v. Mine
Workers, 414 U.S. 368 (1974), broadly interpreted
similar contractual language contained in the Na-
tional Bituminous Coal Wage Agreement of 1968.
In finding a waiver, the judge further relied on ar-
ticle XXIII, section (e)'s provision for disclosure of
information with respect- to grievances, and addi-
tional contract language stating that the settlement
of any dispute at any stage of the grievance proce=
dure is final and binding on the parties.'
We find that the language in the parties' contract
does not constitute a clear and unmistakable waiver
by the Union of its statutory right to request infor-
mation. Article XXIII, section (c), does not address
the Union's right to information in connection with
the preparation and processing of grievances. Al-.
though' the prefatory language in article XXIII,
section (c), broadly defines the differences the par-
ties shall strive to settle "at the earliest practicable
time," the next sentence introduces the mechanics
of the grievance procedure by stating that
"[d]isputes arising under this Agreement shall be
resolved as follows . . . ." The grievance proce-
dure itself speaks of complaints filed by employees.
The contract further provides that the mine com-
mittee has the authority on behalf of the grievant
275 NLRB No. 189
CLINCHFIELD COAL CO 1-385
to settle or withdraw any grievance at step 2 or
proceed to step 3. *The duties of the mine commit-
tee,-however, are "confined to the adjustment of
disputes arising out of this Agreement and that the
mine management and the Employee or Employees
fail to adjust."3 •
Article XXVII does not mention the furnishing
of information with respect to grievances. The bar-
gaining history of this provision shows that it was
adopted to set forth the parties' responsibilities re-
garding work-stoppages. Article XXIII, section (e),
contains a "full-disclosure" provision whereby the
parties are obligated • throughout all stages of the
grievance procedure to disclose to each other the
facts and contractual provisions relied on. Howev-
er, this clause applies only when the grievance' pro-
cedure has been initiated, and requires the parties
to disclose data in support of their own positions.
The provision does not mention situations where ,a
party is seeking to police the contract and obtain
information from the other party to determine if a
violation has occurred. That, in essence, is what
the Union is attempting to do with respect to the
Respondent's handling of repair and maintenance
work.
Based' on our review of the parties' collective-
bargaining agreement, we are unable to find that it
establishes a clear ana unmistakable waiver by the
Union of its statutory right to. request information
from the Respondent.4 We- find that the Union is
entitled to the information it requested regarding
the contracting out of repair and maintenance
work, and we shall order the Respondent to pro-
vide the Union-with the information in accordance
with the complaint. -
In Gatewdy Coal, supra, the Supreme Court concluded that the pre-
sumption of arbnrabdtty announced in the Steelworkers Trilogy applies to
safety disputes, and that the grievance and arbitration provision in the
parties' contract encompassed the safety dispute involved in that case
However, in Acme Industrial, supra, the Supreme Court stated that the
employer's obligation to provide information that is needed by the bar-
gaining representative presents different considerations, vis-a-vis, the
policy of the Steelworkers Trilogy The Court held that the Board acted in
accordance with the national labor policy favoring arbitration when it or-
dered the respondent to furnish the union with information necessary to
the policing of the contract
' 4 We note in this context that the Board has been reluctant to defer to
arbitration issues raised by information requests in the process of resolv-
ing grievances As stated in General Dynamics Corp, 268 NLRB 1432 fn
2 (1984)
[T]he procedural issue of disclosure of the [information] is merely
preliminary to the resolution of the parties' substantive dispute over
the [issues raised by the grievances] In these circumstances, we find
no merit in encumbering the process of resolving the pending
grievances with the inevitable delays attendant to the filing, process-
ing, and submission to arbitration of a new grievance regarding the
information request Such a two-tiered arbitration process would not
be consistent with our national policy favoring the voluntary and ex-
peditious resolution'of disputes through arbitration Nor would it be
consistent with prior Board decisions in this area See, e g , Safeway
Stores, 236 NLRB 1126 fn 1 (1978), St Joseph's Hospital, 233 NLRB
I 1116 fn 1 (1977) -
AMENDED CONCLUSIONS OF LAW.
Substitute the following for Conclusion of Law 3
and delete Conclusion of Law 4 of the judge's de-
cision.
_ "3. By refusing to furnish requested information
regarding the contracting out of repair and mainte-
nance work, the Respondent has engaged in unfair
labor practices affecting ' commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act."
THE REMEDY
Having' found that the' Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act. _ • '
The Respondent is' directed forthwith to turn
over to the' Union 'the information -requested, 'as set
forth in the complaint, in connection with the con-
tracting out of repair and maintenance work.
ORDER -
The National Labor Relations Board orders that
the Respondent, Clinchfield Coal Company, Dante,
Virginia, its officers, agents, successors, and as-
signs, shall -
1. Cease and desist from
(a) Refusing to bargain with Local Union 7950,
United Mine Workers of America, .as the exclusive
bargaining 'representative of bargaining unit em-
ployees, by refusing to furnish it with information
that it requests which is relevant and reasonably
necessary to the processing of grievances.
(b) In - any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the 'policies of the Act.
(a) Furnish, in timely fashion, to the Union, the
information set forth in the complaint regarding the
contracting out of repair and maintenance work.
(b) Post at its facility, in Dante, Virginia, -copies
of the - attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive' days in
5 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board '• - -
"1386 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the . Respondent to
ensure'that the notices are not' altered, defaced, or
covered by any other material.
(c) Notify the. Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
'APPENDIX A
. NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has' found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local
Union 7950, United Mine Workers of America, as
the exclusive bargaining representative of the em-
ployees in the bargaining unit, by refusing to fur-
nish it with information that it requests which is
relevant. and reasonably necessary for the process-
ing of grievances.,
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 furnish, _ in timely fashion, to the
Union, the information ' -requested by the Union in
connection with' the contracting out of repair and
maintenance work.-
CLINCHFIELD COAL COMPANY
• APPENDIX B
Article XXXIII, section (c) Grievance Procedure
Should -differences arise between the Mine Workers and
an Employer as to the meaning and application of the
provisions of this Agreement, or should differences arise
about matters not specifically. mentioned in this Agree-
ment, or should any local trouble of any kind arise at the
mine, an earnest-effort shall be made to settle such differ-
'ences at the earliest practicable time.
Disputes arising under this Agreement `shall' be re-
solved as-follows:
--(I)-(1) The Employee will make his complaint to his im-
mediate foreman who shall have the sdthority to settle
the matter . The foreman will notify the Employee of his
decision within ' 24- hours following the day when the
complaint is made. Settlements or withdrawals at this
step shall • not constitute a precedent in the handling of
other grievances.
(2) If no agreement is reached between the Employee
and his foreman, the complaint shall be submitted,on the
BCOA-UMWA Standard Grievance Form and shall. be
taken up within five working days of the foreman's deci-
sion by the Mine Committee and mine management.
Where the committee consists of more than three (3)
members, the Employer shall have the right to meet with
a maximum of three (3) (to be chosen by the Mine Com-
mittee). Within five working days after the complaint"is
taken up by them, the committee and management will
complete the standard grievance form and if the com-
plaint is not settled, the grievance shall be referred to it
representative of the UMWA district, designated by the
Union, and a representative of the Employer.
(3) Within seven working days of the time the griev-
ance is referred .to them, the district representative and
the representative of the Employer shall meet and
review the facts and pertinent contract provisions in an
effort to reach agreement. Members of, the Mine Com-
mittee shall have the right to be present. No verbatim
transcript of the testimony shall be taken. Neither the
district representative nor the Employer representative
shall be persons who participated in steps 1 or 2 of this
procedure.
(4) In cases where the district representative 'and the
representative of the Employer fail to reach agreement,
the matter shall, within 10 calendar days after referral to
them, be referred to the appropriate district arbitrator
who shall decide, the case without delay. Cases shall be
assigned to district arbitrators in rotation. The parties
agree that the expeditious processing of grievances is a
major function of this Article, and that consolidation of
cases before a single arbitrator can aid in achieving that
goal, and where applicable, this procedure should be
given serious consideration.
Therefore, in order to expedite the processing of
grievances awaiting arbitration, 'the parties may agree
that grievances pending-'arbitration concerning the same
-operation of the Employer for which an arbitrator has
not been assigned, shall be assigned to a single arbitrator
if such cases can be heard on the same day, at the same
place. Hearings shall take place it a location mutually
agreed upon by the parties. If the parties are unable to
agree upon a hearing place, the umpire shall select-the
place. At the earliest possible time, but no later than 15
days after referral to him, the arbitrator shall conduct a
hearing in order to hear testimony, receive evidence, and
consider arguments.
In cases in which the parties have agreed that there is
no question of fact involved in the grievance, the arbitra-
tor may decide the case upon the basis of a point state-
ment of the parties and such exhibits as they shall submit.
The hearing shall be recorded by the arbitrator and shall
be closed upon the completion of testimony. The arbitra-
tor shall render his decision as soon after the close of the
hearing as may be feasible To avoid delays in the issu-
ance of decisions, post hearing briefs will not be permit-
ted except in- cases where the arbitrator determines that
such briefs are necessary for. a full understanding of the
matter before him. If the. arbitrator is unable to make his
decision within 30 days of the close of the hearing, he
shall. promptly advise the parties of the reasons for the
delay and the date when his decision will be submitted.
The arbitrator's decision shall be final and shall govern
CLINCHFIELD COAL CO . , 1387
only the dispute before him. Expenses and fees, incident
to the service of an arbitrator shall be paid equally by
the Employer affected' and by the UMWA district affect-
ed.
Article XXII, section (e) Earnest Effort to Resolve
Disputes
An earnest effort shall be made to-settle differences at
the earliest practicable time Where an Employee makes
a complaint during work time, the foreman shall, if re-,
quested to do so, and if possible, consistent with continii-
ous production, discuss the matter briefly on the spot
At all steps of the complaint and grievance procedure,
the grievant and the Union representatives shall disclose
to the company representatives a full statement of the
facts and the provisions of the Agreement relied upon by
them. In the same manner the company representatives
shall disclose all the facts relied upon by the company.-
Article XXVII Maintain Integrity of Contract and
Resort to Courts
The United Mine Workers of America and the Employ-
ers agree and affirm that, except as provided herein, they
will maintain the integrity of this contract and that all
disputes and claims which are not settled by agreement
shall be settled by the machinery provided in the "Settle-
ment of Disputes" Article of this Agreement unless na-
tional in character in which event 'the parties shall settle
such disputes by free collective bargaining as heretofore
practiced in the industry, it being the purpose of this
provision to provide for the settlement of all such dis-
putes and claims through the machinery in this contract
and by collective bargaining without recourse to the
courts.
The Employer, however, expressly authorizes the
Union to seek judicial relief, without exhausting the
grievance machinery, in cases involving successorship.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. The
hearing in this case held January 10, 11, and 12, 1984, is
based on an unfair labor practice charge. filed by Local
Union 7950, United Mine Workers of America (Union)'
on August 12, 1983,2 and' a complaint issued on October
13 on behalf of -the General Counsel of the National
Labor Relations Board (Board) by the Regional Director
for Region 5 alleging that Clinchfield Coal Company
(Respondent) has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the National Labor Relations Act (Act). Specifical-
I granted the General Counsel 's unopposed motion at the trial herein
to substitute in place of the Union at par 3 of the complaint the United
Mine Workers of America, International Union, United Mine Workers of
America, District 28, United Mine Workers of America, • Local Union
7950 The General Counsel asserted the substitution was necessary be-
cause the International is a party to the collective-bargaining agreement
as is the District and that the Local is an agent of the International and
District in enforcing the agreement I shall refer to them collectively as
the Union
2 All dates are 1983 unless otherwise indicated
ly, the complaint alleges that the Respondent refused to
bargain in good faith with the Union by refusing to pro-
vide the Union certain requested and specified informa-
tion necessary for the performance of the Union's func-
tions as the exclusive collective-bargaining representative
of certain of the Respondent's employees in an appropri-
ate"unit for which the.Union was the exclusive represent-
ative. Respondent filed a timely-answer which it amend-
ed at trial in-which-it admitted various allegations of the
complaint but denied the commission of any unfair labor
practices within the meaning of the Act.
On the entire record3 made in this proceeding, includ-
ing • my observation of each witness who testified herein,
and after due consideration of briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I., JURISDICTION
Respondent; a Virginia corporation with an office and
place of business - in Dante, Virginia, is engaged in the
mining and processing of bituminous coal at various
mines and preparation plants in the States of West Vir-
ginia , Kentucky, and Virginia. During the calendar year
ending December - 31, -1982 , Respondent , in the course
and conduct of its business, sold and shipped from its
Virginia facilities products,. goods,. and materials valued
in excess of $50,000 directly to points outside the State
of Virginia. Respondent admits and I find that it is-an
employer engaged in-commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, the record- reflects, and I find that the
Union is, and at all times material has been , a labor orga-
nization within themeaning of Section 2 (5) of the Act.
III. APPROPRIATE BARGAINING UNIT
The complaint alleges, the parties admit, and I find
that the following - employees constitute a unit appropri-
ate for collective bargaining within the meaning of Sec-
tion 9(b) of the Act: - •
All employees of Respondent engaged in the pro-
duction of coal, including removal of overburden
and coal waste , preparation, processing and clean-
ing of coal and transportation ' of coal (except by
waterway or rail 'not owned by Respoident), repair
and maintenance work normally performed, at the
mine site or at a central shop of Respondent and
maintenance of gob ,piles and mine roads, and work
customarily,related to.all of-the above.
I grant the General Counsel's unopposed - motion to substitute a cor-
rect ; and complete copy.of G C Exii -12 for the copy previously intro-
duced at the trial - _ - • - . '
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent, a division of the Pittston Company,
is engaged in the mining, processing,'and preparation of
bituminous coal. At material times herein, the Clinchfield
Division of Respondent operated at least 12 underground
coal mines,4 two strip mines-Sycamore No.-4 and Syca-
more No. 5,5-three-preparation plants,6 three direct ship-
ment docks, a central shop, central laboratory, and vari-
ous engineering support facilities. - -
,The central shop- has been operated for an extended
number of years.? It was originally located at McClure,
Virginia, and employed approximately 40 employees at
that location The central shop primarily rebuilds, re-
pairs, and performs maintenance work on mining equip-
ment, machinery, and related items: From the earliest
days of the central shop, similar type work has been con-
tracted out by the Respondent- to outside contractors.
Contracting out and work jurisdiction at the shop have
been a matter of concern between the parties for a
number of years. -
On October 16, 1975, the parties (Local Union 9750
along with District 28 and Respondent) entered into a
local or side agreement pertaining to the central shop (R.
Exh. 5). The. agreement came about as a result of griev-
ances arising at the central shop concerning work being
"sent to -outside shops." By the terms of the agreement
the central shop employees would work 8 hours per shift
day instead of -7-1/4 hours and they would work every
other Saturday. The Union in turn agreed to drop cer-
tain work jurisdiction grievances and to go along with
the agreement until a new shop was placed in oper-
ation.8 •
On July 11, 1977, the Respondent notified the Union
in writing that the local agreement of October 16, 1975,
would, in accordance with the terms of that agreement,
be terminated 'in 30 days (R. Exh. 5). The central shop
employees returned to working the normal 7-1/4 hour
workdays. At approximately this same time frame Re-
spondent moved into its new facility which had addition-
al equipment' and a larger work area. The work force
grew to its current strength of approximately 90 employ-
ees and 13 supervisors. The central shop at its current lo-
cation has 10 departments.9' .
" The 12 underground mines are McClure No 1, McClure 2, Moss No
4, Moss No 4-A, Moss 4-D,• Lamber Fork, Open Fork, Maple House,
Splash Dan, Kilgore Creek, Hurricane, and Wilder
3 A third strip mine Sycamore No 6 went out of existence approxi-
mately 1 month prior to the Respondent in •1979 The Sycamore mines
are within the geographic area serviced by the central shop and the cen-
tral shop has performed some,repair work for the Sycamore mines . -
6 The three plants are Moss No I preparation plant, Moss No, 3 prep-
aration plant,'and McClure River preparation, plant.
7 Current Shop-Foreman Lee Monday commenced work at the shop in
1948 and became foreman in 1958
8 Around the first of 1976 the Respondent discontinued alternating Sat-
urday work and the Union filed grievances concerning the discontinu-
ance of the work The grievances were thereafter arbitrated and the
Union was awarded two 8-hour shifts per each shop employee employed
at the time (G C Exh 5) -
e The 10 departments of the central shop are electric department, ma-
chine shop,"supply department, hydraulic shop, components rebuilt, truck
drivers, panel board department , and custodians
Following the termination of the 1975 local agreement
(R. Exh. 5), the Union again commenced to file griev-
ances regarding work jurisdiction at the central shop
Following the execution of the National Bituminous Coal
Wage Agreement of 1979 (R. Exh. 3), which was execut-
ed on March 25 of that year, a 5-day strike took place in
part over work jurisdiction at the Respondent's central
shop. Thereafter a second local agreement was entered
into by the parties on June 9, 1978 (G.C Exh. 14). The
terms of the agreement called for all central shop em-
ployees to be on an 8-hour-per-day work shift and to
work every other: Saturday. The Union agreed to with-
draw all pending work jurisdiction grievances and
agreed there would be no more work jurisdiction griev-
ances filed, including but not limited to, grievances con-
cerning contracting out repair work. The agreement was
effective by its terms from. July 10, 1978, until March 27,
1981. During this period of time the Respondent con-
tracted out similar work to that being performed at the
central shop - The parties -honored the terms of the agree-
ment at least until approximately mid-1982. In approxi-
mately mid-1982 the Respondent informed the Union
that Saturday 'work would be discontinued as a result of
the closing of certain mines and a reduction in work 10
In late January 1983 the Respondent notified the
Union that the hours of work for the 'central shop em-
ployees would revert back to 7-1/4 hours per day and
there would be no Saturday work. The Union informed
the Respondent that it would be taking a "strong look"
at any "farming out" of work. The above facts are not in
dispute.
The parties have been signatory to the National Bitu-
minous Coal Wage Agreements (BCOA) for an extended
period of time. The most recent BCOA agreement by its
terms is effective from June 7, 1981, until September 30,
1984 (R. Exh.- 4). The employees of the central shop are
represented by the Union and the 'work jurisdiction for
the unit is set forth in the collective-bargaining agree-
ment . Certain provisions of the most recent BCOA
agreement are pertinent to the instant case. Those provi-
sions are as follows .
Article IA-SCOPE AND COVERAGE
Section (a) Work Jurisdiction -
The production of coal, including removal of
overburden and coal waste, preparation, processing
'and cleaning of coal and transportation of coal
(except by waterway or rail not owned by Employ-
er), repair. and maintenance work normally per-
formed at the mine. site or at a central shop of the
Employer. and maintenance of gob piles and mine
roads, and work customarily related to all of the
above shall be. performed by classified Employees
of the Employer covered by and in accordance
with the.terms of this Agreement. Contracting, sub-
contracting, leasing and subleasing, and construction
10 After May 1982 the Respondent shut down 27 percent of its oper-
ations and laid off 30 percent (approximately 800) of its work force The
Respondent shut down some of its large, older, inefficient, and unprofit-
able mines
CLINCHFIELD COAL CO 1389
work, as defined herein, will be conducted in ac-
cordance with the provisions of this Article.
Nothing in this section will be construed to di-
minish the jurisdiction, express • or implied, of the
United Mine Workers.
Section (c) Supervisors Shall Not Perform Classi-'
feed Work -
Supervisory employees shall perform no classi-
fied work covered by this Agreement except in
emergencies, and except if such work: is necessary
for the-purpose of training or.instructing classified
Employees. When a dispute arises under this sec-
tion, it shall,be adjudicated through the grievance
machinery and - in such proceedings the following
rule will -apply- the burden is on the -Employer to
prove -that classified work has not been performed
by supervisory personnel.
Section 8(d) Management of the Mines
The management-of the mine,.the direction of the
working force and the right to hire and discharge
are vested exclusively in the Employer. .
Section (g) Contracting and Subcontracting
- (2) Repair and Maintenance Work - Repair and
maintenance work customarily performed by classi-
fied Employees at the mine or central shop shall not
be contracted out except (a) where the work is
being - performed by a manufacturer or supplier
under warranty, • or (b) where the Employer does
not have available equipment or regular Employees
(including laid-off Employees at the mine or central-
shop) with necessary skills available ' to perform 'the
work at the mine or-central shop:
:(4) Where contracting out is permitted 'under this
section, prior custom and practice 'shall not be'con-
strued to limit in any way the Employer's choice of
contractors -
Article XXIII-SETTLEMENT OF DISPUTES
Section (c) Grievance Procedure-
Should differences arise between the Mine Work-
ers and an,Employer as to the meaning and applica-
tion of the provisions of this Agreement, or should
differences arise about matters, not specifically men-
tioned in this Agreement,. or should any local trou-
ble of any kind arise at the mine , an earnest-effort
shall be made to settle such differences at'the earli-
est practicable'time.' '
Disputes arising under - this' Agreement' shall, be
resolved as follows- - -
(1) The Employee will make'his complaint to•his
immediate foreman who shall have the authority to
settle the matter. The foreman will notify the Em-
ployee of his decision within 24 hours following the
day when the complaint is made. Settlements or
withdrawals at this step shall not constitute a' prece-
dent in the handling of other grievances.
(2) If no agreement is reached between the Em-
ployee and his foreman, the complaint shall be sub-
mitted on the BCOA-UMWA Standard Grievance
Form and shall be taken up within five working
days of the foreman's decision by the Mine Com-
mittee and mine management. Where the committee
consists of more than three '(3) members, the Em-
ployer shall have the right to'meet with a maximum
of three (3) (to be choseh by the Mine Committee).
Within five working .=days after the complaint is
taken up by them, the committee and management
will complete the standard grievance form and, if
the complaint is not settled, the grievance shall be
referred to a representative of the UMWA district,
designated by the Union, and a representative of the
Employer. -
(3) Within seven working days of the time the
grievance is referred to them, the district represent-
ative and the representative of the Employer shall
meet and review the facts and pertinent contract
provisions' in an effort to reach agreement. Members
of the Mine Committee shall have the right to be
present. No verbatim transcript of the testimony
shall be taken Neither the district representative
nor the -Employer representative shall be persons
who participated in steps 1 or 2 of this procedure.
(4) In cases where the district representative and
the representative of the Employer fail to reach
agreement, the matter shall,-within 10 calendar days
after, referral to them, be referred to the appropriate
district arbitrator who shall decide the case without
delay. Cases shall be assigned to district arbitrators
in rotation. The parties agree that the expeditious
processing of grievances is a major function of this
'Artilce,"and, that consolidation of cases before a
single arbitrator can aid in achieving that goal, and
where applicable, this procedure should be given se-
rious consideration.
Therefore, in order to-expedite the processing of
grievances awaiting arbitration, the parties may
agree that grievances pending arbitration concern-
ing the same operation of the Employer for which
an arbitrator has not been assigned, shall be- as-
signed to a single arbitrator if such cases can be
heard on-the same day, at the same place. Hearings
shall take place at a location mutually agreed upon
by the -parties.. If the parties, are unable to agree
upon a hearing place, the - upire , shall select the
place. At the earliest possible time, but no later-than
15 days after referral' to him,-.the 'arbitrator shall
conduct a, hearing-, in order to hear testimony,, re=
ceive evidence and consider arguments: -
In cases in which the parties- have agreed that-
there is no question of fact involved in' the griev-".
ance, the arbitrator may decide the. case upon the
basis of a joint 'statement of the parties and-such ex-
hibits as they shall' submit. The hearing shall be re-
corded by the arbitrator and shall be closed upon
the' completion of testimony. The arbitrator shall
render his decision -as'soon after the; close of the -
hearing as may be feasible To avoid delays-in the'
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issuance of decisions, post hearing briefs will not be
permitted except in cases where the arbitrator de-
termines that such briefs are necessary for a full un-
derstanding of the matter before him. If the arbitra-
tor is unable to make his decision within 30 days of
the close of the hearing, he shall promptly advise
the parties of the reasons for the delay and the date
when, his decision will be submitted. The arbitra-
tor's ecision shall be final and shall govern only
the dispute before him. Expenses and fees incident
to the service of an arbitrator shall be paid equally
by the Employer affected and by the UMWA dis-
trict affected.
Section (d) Ten Day Limitation
Any grievance which is not filed by the ag-
grieved party within ten (10) working days-of the
time when the Employee reasonably should have
known it, shall be denied as untimely and not proc-
essed -further.
Section (e) Earnest Effort to. Resolve Disputes
An earnest effort shall be made to settle differ-
ences at the earliest practicable time. When an Em-
ployee makes a complaint 'during work time, the
foreman shall, if requested to do so, and if possible,
consistent with continuous production, discuss the
matter briefly on the spot. -
At all steps of the complaint and grievance pro-
cedure, the grievant and the Union representatives
shall disclose to the company representatives a full
statement of ,the facts and the provisions of the
Agreement relied upon by them. In the same
manner, the company representatives shall disclose
all the facts relied upon by the company.
Section (1) Waiver of Time Limits -
By agreement the parties may-waive the time
limits set forth, in each step of the grievance proce-
dure (R. Exh. 4) . -
On March 9, Local Union 7950 President Ray Fogg
filed a class-action grievance concerning work jurisdic-
tion of the central shop. - Fogg filed the grievance be-
cause he had received reports from, several of the mines
"that there was work leaving those mines that [was] nor-
mally [and] customarily done at the central shop; " Fogg
met with Central Shop Foreman Lee Monday on March
9 regarding the grievance. Fogg's undisputed ,testimony
was that he told Monday. he had reports that work was
leaving the mines and that he was going to file a work
jurisdiction grievance. Fogg told Monday he had already
typed the grievance out so that Monday could better un-
derstand what he (Fogg) was grieving Monday told
Fogg he could not resolve the grievance at his level but
would forward it to .the next step of the grievance proce-
dure. _
A step 2 meeting of Fogg's grievance was held on
March 17 . (G.C. Exh. 10(a)). Those , present for the
Union, in addition to Fogg, were Shop -Committee
Chairman Orville Dingus and members Donald Hale and
Jim Haroldson. The Respondent was represented by
Central Shop Manager Thomas R. Hodge and Foreman
Monday. Fogg testified he stated at the meeting that
"there was trucks seen entering and leaving the mine
sites, such as the McClure 1, McClure River Preparation
Plant , Splash Dam, McClure 2, Moss 1• Preparation Plant
and Moss 4-D Mines," and based on that he thought
there was contracting out of repair work taking place.
Fogg stated 'that although he may have mentioned one
or two things he thought was being subcontracted out
that he did not describe at all, the work at the Step 2
meeting .' i- Hodge told the committee he was unaware of
any work that was customarily done by the central shop
leaving the mine sites mentioned, or being repaired by
outside shops Fogg did not,request any information at
the step 2 grievance meeting nor was the grievance re-
solved at that level. The written grievance by Fogg
stated:
The Clinchfield Coal Company is in violation of
the National Bituminous Coal Wage Agreement of
1981, Article IA Section (A) Work Jurisdiction and
Section (G) Contracting and Subcontracting and
any other Article pertaining to this Grievance.
The Company is sending repair and maintenance
work out to nonunion repair shops and we have
been cut back on our daily and weekly work sched-
ule. We demand that we be made whole for, wages
lost, and the practice of work being sent off by the
Company cease immediately.
The step 3 meeting on the Fogg grievance was held
on March 24. Present for the Union were Fogg, Dingus,
Hale, Haroldson, truckdriver Harold Dutton, and Union
District 28 Vice President Don McCamey. Those present
for the Respondent were Monday, Hodge, Moss 4-D
Mine Superintendent John Boarder, Moss 4-D Division
Manager Buck Couch, Moss 4-D Chief Electrician Tim
Horn, Industrial Relations Manager Joseph Pendergast
and his assistant Don Kennedy. i 2 Fogg's grievance was
the second of two grievances discussed by the parties at
the March 24 meeting. The grievance other than Fogg's
was one filed by employee Michael Greear. Greear's
grievance pertained to work jurisdiction at the central
shop and specifically pertained to the repair of wall jacks
from the Moss 4-D mine. The Union took the position
on Greear's grievance that the employees in the central
shop, should have performed the work on the wall jacks;
however, the Respondent contended that the Union did
not have jurisdiction because that work always had been
performed by outside contractors. According to Fogg,
whose testimony I credit, the Respondent also took the
position that the work mentioned in Greear's grievance
• was under warranty and the central shop did not have
11 Hodge testified Fogg was specifically concerned about motors at
the Moss I preparation plant being possibly given to outside vendors as
scrap and then repurchased as repaired units Hodge'stated Fogg also
mentioned a motor for a• long-wall unit as another specific example of
what he was referring to -
12 It appears that those individuals from the Moss 4-D mine did not
remain for the discussion of the second grievance
CLINCHFIELD COAL CO 1391
the necessary equipment to perform the repairs
needed.' 3
In discussing the second grievance at the March 24
step -3 meeting Fogg did most of the talking for the
Union since it was his grievance." Fogg stated his
grievance was the same as Greear's except Fogg's griev-
ance was broader. The Union's position at the meeting
was that it had information work was being contracted
- out which it was entitled to because it was work 'that
was normally and customarily performed by employees
of the-central shop and the Union stated it expected such
work to be performed at the central shop.' 5 Fogg pro-
ceeded to cite specific examples of where the Union be-
lieved contracting out of work normally and customarily
performed by the central shop employees had taken
place 16 Fogg mentioned that no work was being re-
ceived at the shop from the McClure River Preparation
Plant. According to Fogg, the Respondent through Pen-
dergast responded by stating that it was a new plant and
maybe there was no work to do from it.' 7 Fogg stated
that the central shop was not receiving any work from
the Sycamore Strip Mines 4, 5, and 6 and that since they
were in the Clinchfield Division of the Respondent, the
Union should receive work from those strip mines 18
The Respondent took the position that the repair work at
the Sycamore mines had previously been customarily
and normally sent to outside contractors, therefore the
central shop had no jurisdiction over the repair work.
Fogg told the meeting that an outside contractor-
Brooks Electric-had • picked up discarded electric
motors at the Moss 1 preparation plant, and had then
sold them back to the Respondent by use of purchase
1' Greear's grievance was taken to arbitration on July 15, and the
grievance was sustained by Arbitrator Carl F Stoltenberg on October 10
(G C Exh 8) Fogg stated the Union found enough information on its
own to take Greear's grievance to arbitration -
14 I have credited Fogg's version of the step 3' grievance meeting
Fogg impressed me as a truthful witness and his testimony, when consid-
ered in light of the entire record, is very logical and probable and it was
in general supported by that of other witnesses called by the General
Counsel In discussing the facts I shall further address credibility at those
places where a conflict arises
15 McCamey and Dutton corroborated Fogg's testimony regarding the
position taken by the Union at the step 3 meeting I do not credit Pender-
gast's 'testimony that the Union's position was that since, work had
slacked off that the central shop was entitled to all repair ork until it
was working at full capacity again This position attributed to the Union
by Pendergast does not appear to have been the Union's position over
this history of its disputes with the Respondent regarding work jurisdic-
tion at the central shop Additionally, Pendergast attributed the statement
that the Union was entitled to all the work to at least one witness (De-
Priest) who was not even present at the step 3 meeting , thus raising a
question as to the accuracy of his recall with respect to discussions and
positions taken at the meeting 'Further, Central Shop Manager Hodge
testified that it was the Union's position at the meeting that it was enti-
tled to work customarily performed by the central shop employees
16 I am persuaded that specific examples were raised early in the dis-
cussion The Union had raised specific examples at the step 2 meeting,
therefore, I do not believe Pendergast when he. testified that-the Union
only cited examples after the Respondent insisted that it do so near the
end of the meeting McCamey and Dutton both indicate Fogg cited ex-
amples early in the meeting McCamey asserted it was the Union's prac-
tice to state the charges at grievance meetings and have the Respondent
thereafter responded to allegations made by the Union
17 It is noted that McCamey 's testimony that the plant was approxi-
mately 3 years old was undisputed
16 As noted elsewhere in this decision the Sycamore mines were pur-
chased by the Respondent in 1979
orders. The Union contended the Respondent was using
purchase orders as a means of contracting out -work cus-
tomarily performed by the central shop employees The
Respondent took the position it service exchanged cer-
tain items out and had been doing it for 35 years. The
Respondent also contended it was cheaper at times to
purchase new motors than to repair old ' ones.' Fogg
raised the matter that the central shop had only received
two motors from 'McClure 2 mine since it had been in
operation. Fogg also stated at the meeting that'he had
been informed by a unit member from the McClure
River Preparation Plant that the Respondent was con-
tracting with an outside contractor for the repair of
"AC" motors with 30 or less horsepower rather than
sending them to the central shop for repair Employee
truckdriver Dutton, who visited the minesites once or
twice per week as part of his regular job, testified with-
out contradiction that he raised at the step 3 meeting the
fact that he had seen jeep motors, electric motors, S&S' 9
scoop motors, S&S rear ends, S&S dropin units and
scoop units from various minesites that were not brought
into the central shop for repair A composite of the testi-
mony of those present at the meeting establishes that the
Union raised - other - incidents of contracting out repair
work that it contended was customarily and regularly
performed by the central shop. Other examples involved
contracting out repair for a scoop, ' wheels for track
equipment, jeep motors, Goodman motors, a low horse-
power locomotive motor, a joy reel motor for a shuttle
car, a 1000 horsepower motor and a Marietta Tram
motor. - - -
The Respondent was unable to respond to ' all the in-
quiries made by the Union at the step 3 meeting. Pender-
gast told the Union he would 'get back with them on
those items in about a week's time. There was no written
request for any information made at' the step 3 meeting.
Further, I find the Union did not offer to settle the
grievance at the step 3 meeting as testified to' by Pender-
.gast. The entire record evidence in my_ opinion supports
McCamey and Dutton's testimony on this-issue; there-
fore, I credit their testimony that settlement was not dis-
cussed at the step 3 meeting. Fogg credibly testified Pen-
dergast did not get back with him the following week on
the matters left unanswered at the'step -3 meeting 20'
In the latter part of March or the first part of April
Fogg hand-delivered a -written request for information to
Pendergast at -Respondent's- personnel office in Dante,
Virginia. No one was present other than' Fogg and 'Pen-
dergast Fogg told Pendergast he needed the requested
informatioii in order to process his grievance and the
grievance would' be held in abeyance until - he received
'the information There was no discussion of the merits of
19 S&S is 'the trade name of a manufacturer of equipment used in
mining coal - -
20 I credit Fogg's testimony not only because he impressed me as testi-
fying truthfully on this matter but his testimony was supported by that of
Central Shop Manager Hodge who testified that Pendergast never in-
structed him to meet with Fogg except to relay some answers to Fogg's
written request for information I, therefore, discredit Pendergast' s testi-
mony that he got back with Fogg through Hodge with information the
week following the step 3 meeting _
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the grievance 21 Fogg's written request stated in perti-
nent part:
This is a formal request for information pertinent
to the processing and orderly disposal of a class
action grievance that is in process between the em-
ployees of the Clinchfield Coal Co Central Shop
and the management of said company.
1. Please furnish the names and addresses of all
vendors or outside jobbers who do maintenance or
repair work, of any kind, for the company and iden-
tify the work they have done for the years 1982 &
1983.
2 Please furnish the names and addresses of all
vendors or jobbers who • supply rebuilt parts or
component parts (i.e.) electric motors, speed reduc-
ers, pumps; etc., and identify the work they have
done for yeas 1982 & 1983.
3. Please furnish the names and addresses of all
vendors or jobbers who supply new parts used in
the maintenance and repair of mining equipment
used by the company and identify the parts so fur-
nished this year.
4. Please furnish information showing which
Clinchfield • Coal Co. mines or preparation plants
farm our repair work and to whom it goes, for the
years of 1982 and 1983. Especially requested is as
much information as possible for Moss #1 Prep
Plant, Moss #4A, Moss #4D, -McClure #1 Prep
Plant, McClure #1 Mines, Hurricane Creek Mines
and Moss #3 Prep Plant.
5. Please furnish a list of all repair orders issued
from the Central Shop for the years 1982 and 1983,
and identify the items or work to be performed by
each such repair order and to whom issued.
6. Please furnish a list, of purchase orders issued
to outside vendors who do the same type work as
that performed in the Clinchfield Coal Co Central
Shop (i.e.) Industrial Machine, B & K Welding,
Electric Motor Repair, T & T Machine Co., etc.,
and identify to whom issued, and for what purpose
for the years 1982 and 1983.
7. Please furnish information showing the cost to
the Company for repair work farmed out to outside
jobbers for years 1982 & 1983
8 Please furnish information showing the relation
of Clinchfield Coal Co. and Sycamore Strip.
9. If Sycamore Strip is in the Clinchfield Coal
Co. division of Pittston Co , please identify all out-
side jobbers who do work for them, the type of
21 I do not credit Pendergast's testimony that Fogg told,him he was
attempting. to expand the work jurisdiction of the shop by filing the
grievance Fogg's denial in this regard was very persuasive Fogg was an
experienced union official and I find it simply unbelievable that he would
admit he was attempting to expand work jurisdiction rather than enforce
contractual jurisdiction The record establishes that in the past Fogg had
attempted to enforce the contract with respect to contracting out repair
work and there is nothing to persuade me that he was attempting to do
or that he would admit that he was trying to do otherwise on this occa-
sion
work performed and approximate dollar value of
such work [G.C Exh. 11.]22
Fogg received a written reply. to his first request for in-
formation from Pendergast dated May 10. Pendergast's
response in pertinent part was as follows:
After careful consideration of your request for in-
formation concerning a pending grievance, the fol-
lowing response is made:
[1] Response- (a) Pursuant to Article IA, Section
(a) and (g) of the National Bituminous Coal Wage
Agreement of 1981, the information requested
cannot be furnished until the Union specifically
identifies the work in question and demonstrates
that such specifically identified work is within the
jurisdiction of the employees of, the Clinchfield
Central Shop
[2] Response: Pursuant to Article I, Sections (a)
and (g); the Union has'no jurisdictional claim over
the purchase of parts or equipment -
[3] Response: Pursuant to Article I, Sections (a)
and (g), the Union has no jurisdictional claim over
the purchase of parts or equipment.
[4] Response. (a) Pursuant to Article IA, Section
(a) and (g) of the National Bituminous Coal Wage
Agreement of 1981, the information requested
cannot be furnished until the Union specifically
identifies -the work in question and demonstrates
that such specifically identified work is within the
jurisdiction of the employees of the Clinchfield
Central Shop
[5] Response: The request for repair order is so
broad as to be unidentifiable in accordance with Ar-
ticle IA, Sections (a) and (g) of the National Labor
Bituminous Coal Wage Agreement of 1981.
[6] Response- This request acknowledges that the
Union does not have a jurisdictional claim to this
work in accordance with Article IA, Sections (a)
and (g) of the National Bituminous Coal Wage
Agreement of 1981. Therefore, purchase orders rel-
ative to this work will not be furnished.
[7] Response- The cost information requested is
proprietary and will not be furnished.
[8] Response- Please see page 172 of the National
Bituminous Coal Wage Agreement of 1981.
[9] Response: Pursuant to Article IA, Sections (a)
and (g) of the National Bituminous Coal Wage
Agreement of 1981, the work to which reference is
made in this request is not within the jurisdiction of
the employees of the Clinchfield Coal Company
Central Shop [G.C Exh. 10(b)]
Fogg testified he found the May 10 response of Pen-
dergast, to be unsatisfactory.' Fogg filed in writing what
he termed a clarifying and supplemental request for in-
formation on May 31.23 The pertinent portions of Fogg's
May 31 request are
22 Complaint par 8(a) is identical to the numbered paragraphs set forth
in Fogg's first written request except that par 7 of the request was not
alleged in the complaint (G C Exh 1(c))
29 The evidence tends to indicate this request was mailed rather than
hand delivered to Pendergast
CLINCHFIELD COAL CO
After reviewing your May 10, 1983 response to
our above request, I wish to re-submit same with
the following clarifications. This correspondence is
to be considered as a supplemental to our previous
requests -
1. Please detail the work Clinchfield has jobbed
out to the following persons or entities in 1983:
A. Weldon Bland
Route 1
Nora, Virginia
B Wayne Franks
d/b/a Frank's Machine Shop
Coeburn, Virginia
C. Seko Repair Shop
Coeburn, Virginia
D. Brooks Electric
1224 Spring Ave., S.W.
Norton, Virginia
E Coal Country Electric
Bristol, Virginia
F Bristol Electric
Bristol, Virginia
G. Copenger Machine Shop
Princeton, West Virginia
H. National Electric Coil Co.
(McGraw Edison)
Bluefield, West Virginia
I. Hart Electric
(Joy Manufacturing)
Bluefield, West Virginia
J Industrial Machine Company
Hansonville, Virginia
K Hydraulics, Incorporated
a/k/a Lebanon Hydraulics Shop
L. Shelton-Witt Equipment Corporation
. Wise, Virginia
M. Rosedale Heavy Equipment Corporation
Rosedale, Virginia
N Logan Hydraulics
Logan, West Virginia .
0. Logan Corporation
Clay Pool Hill
Richlands, Virginia -
P. Foley Hydraulics Incorporated
Route 23
- Norton, Virginia
Q. Keith's Repair Shop
Lebanon, Virginia
R Top Equipment
Abingdon, Virginia
S Castlewood Welding
Castlewood, Virginia
T. West Virginia Armature
Bluefield, West Virginia
For each person or entity named above, please pro-
vide information regarding the work contracted out
for the following purposes.
ELECTRICAL WORK
(i) motor:winding
(ii) motor rebuilding (AC & DC)
(iii) panel board requiring and repair
1393
(iv) electrical lighting system repairs for mining
equipment
MINE EQUIPMENT
(i) continuous miners
(ii) coal feeders
(in) locomotives
(iv) steel fabrications and erecting
(v) hydraulic plumbing
(vi) cutting head drums
(vii) mine machinery components:
(a)- wheel units -
(b) water pumps
(c) miner heads
(d) belt rollers _
(e) welding repairs
(f) motor housings
HYDRAULICS
(i) roof jacks and other hydraulic jacks
(n) motors
MACHINE REPAIR WORK
(i) manufacturing rotor shafts and other equipment
shafts
(ii) manufacture of all other mine machinery equip-
ment
Also state whether or not any of the above named
persons or entities have transported or delivered for
repair any of the items listed and if so, name the
person or entity performing such work.
II. Please provide the same information as requested
in question number I. for the year 1982.
III. Please state whether or not Sycamore Coal
Company (a/k/a Sycamore Strip) has been incorpo-
rated into the Clinchfield Division of the Pittston
Corporation since the signing of the National Bitu-
minous Coal Wage Agreement of 1981. If the
answer is yes, please provide the following informa-
tion:
A. During the year 1983 has Sycamore Coal Com-
pany had any repair work done to'mining equip-
ment as identified in Paragraph I. of this request? If
so, Please provide information as to:
(i) the equipment repaired
(u) the person or entity providing such repair serv-
ices
(iii) the person or entity transporting or delivering
such equipment to or from the Sycamore operation;
and
(iv) the reasons for, not bringing the equipment to
the company repair shop pursuant to the National
Bituminous Coal Wage Agreement of 1981 [G.C.
Exh. 10(c)].24
24 Complaint par 8(b) is identical to the May 31 request of Fogg (G C
Exh 1(c))
1394' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pendergast responded in writing to the May 31 request
in a reply dated June 21. Pertinent parts of his reply are
as follows:
This is to acknowledge receipt of the additional
request for information which you submitted on
May 31, 1983 (Copy attached).
After careful review and research of the material
requested , I am pleased to- report that the Clinch-
field Coal Company has neither jobbed out work to
the firms referred to in Request No. I nor issued
purchase orders to these firms for any work which
has been customarily performed by classified em-
ployees of the Central Shop.
With regard to the Request No. II, the Clinch-
field Coal Company continues to maintain that any
request dating back to 1982 is untimely and could
not be relevant to any current grievance.
With regard to Request No: III, the classified
employees of the Clinchfield Central Shop have not
customarily performed any repair and maintenance
work on, any Sycamore strip mine; therefore, the
Central Shop employees do not hold jurisdiction
over this repair and maintenance work in accord-
ance with the provisions of the 1981 Wage Agree-
ment (G.C Exh 10(D)).
Fogg testified he was not satisfied with Pendergast's
June 21 response because Pendergast was substituting his
judgment for that of an arbitrator as to what work was
customarily and normally performed by employees of
the Central Shop, therefore, Fogg stated he filed the
charge that gave rise to the instant case.
B. Discussion, Analysis, and Conclusions
The General Counsel contends that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
provide to the Union, the information it requested. The
General Counsel asserts the Union's request met- the rel-
evancy standards required by Board law for production
of information and that it likewise established the neces-
sity for the information.- Further,-the General Counsel as-
serts that the Union adequately apprised the Respondent
of the relevancy of the information and clearly described
what information it needed. The General Counsel also
contends that this is, not a case warranting deferral to the
parties' collective-bargaining : agreement .- The General
Counsel contends-the Union's right-to the requested in-
formation is statutory- and not contractual. and, that the
Union has not clearly and unmistakably waived' its statu-
tory right to the information.- ' ,
'The -Respondent contends that the collective-bargain
ing agreement, provides the machinery' necessary for the
settlement. of the issues herein and that that machinery-
must be utilized 'by the parties: "In this. respect the Re-
spondent .contends% that the Union must•'rhake' its request'
for information 'through ,the -grievance-arbitration proce-
dure and by utilizing' that, procedure it may be properly
determined whether the Union is entitled to the informa-
tion it requested.; The Respondent contends the matter
herein should be deferred to the parties' arbitration proc-
ess. The Respondent asserts the contractual issues are
factually parallel to the alleged unfair labor practice
issues and that an arbitrator would be presented with the
facts relevant to resolving the unfair labor- practice
charges. The Respondent also contends the information
requested by the Union does not meet the requisite
standards of relevancy. Finally the Respondent contends,
as earlier eluded to, that the Union contractually waived
its statutory right to the information in issue.
I shall first address the issue of whether it would best
effectuate the purpose and policies of the Act to defer
this case pursuant to the Collyer Insulated Wire doctrine
(192 NLRB 837 (1971)) to the arbitral forum. The Board
renewed the Collyer principles in United Technologies
Corp., 268 NLRB 557 (1984). In United Technologies, the
Board held:
Where an employer and a union have voluntarily
elected to create dispute resolution machinery cul-
minating in final and binding arbitration, it is con-
trary to the basic principles of the Act for the
Board to jump into the fray prior to an honest at-
tempt by the parties to resolve' their disputes
through that machinery. . . . In our view, the statu-
tory purpose of encouraging the practice and proce-
dure of collective bargaining is ill-served by permit-
ting the parties to ignore their agreement -and, to pe-
tition this Board in the first instance for remedial
relief.
The Respondent contends that the Collyer doctrine as re-
vived in United Technologies controls the instant case. I
find however that I am precluded from deferring the in-
stant case to the arbitral forum for a number of reasons.
The Respondent at trial indicated it would -not relinquish
or waive any defenses it had regarding timeliness in
processing the grievance relating to the instant case The
Respondent in its posttrial brief indicates however a will-
ingness to submit all issues to an arbitrator. Such a posi-
tion on the part of the Respondent would, allow the time-
liness issue to be submitted to an arbitrator. The Board
clearly stated at footnote 22 in United Technologies that
one of the requirements for deferral was that there must
be a waiver of any timeliness provisions of the griev-
ance-arbitration ' clauses of the collective-bargaining
agreement Deferral herein is inappropriate inasmuch' as
the Respondent is unwilling to waive timeliness as a de-
fense. Furthermore, the Board in' General Dynamics
Corp., 268 NLRB 1432 fn. 2 (1984), held:
We agree with the judge's conclusion that the in-
stant dispute over the Union's request for the MIT
study is not-an appropriate matter for deferral to ar-
bitration. In so finding, we rely particularly on' the
fact that the 'Union requested the study for the pur-
pose of determining whether to proceed with griev-
ances' it was' planning to, and later did, file regard-
ing the subcontracting of unit work. Thus, the pro-
cedural issue of disclosure of the study is merely
preliminary to the resolution of the parties' substan-
tive dispute over the subcontracting. In these cir-
cumstances, we, find no merit in encumbering the
process of resolving the pending subcontracting
CLINCHFIELD COAL CO
grievances with the inevitable delays attendant to
the filing, processing, and submission to arbitration
of a new grievance regarding the information re-
quest Such a two-tiered arbitration process would
not be consistent with bur national policy favoring
the voluntary and expeditious resolution of disputes
through arbitration. Nor would it be consistent with
prior Board decisions in this area See, e.g., Safeway
Stores, 236 NLRB 1126 fn. 1 (1978); St. Joseph's
Hospital, 233 NLRB 1116 fn. 1 (1977).
Therefore,, it is Board policy not to defer information re-
quests to the parties'. arbitration process. Accordingly, I
conclude and find deferral is inappropriate in the instant
case.
Having found deferral -inappropriate I now turn to the'
issue of whether a statutory right exists for the Union to.
have the information it requested in the instant case. The
governing principles in deciding whether an employer is
required to furnish a union with information are well es-
tablished; however, a brief restatement of some of those
principles is appropriate. The general rule is that an em-
ployer has an obligation, as part of its duty to' bargain in
good faith, to provide relevant information in its posses-
sion to a bargaining representative if the information is
needed by the representative for the proper performance
of its duties. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). The obligation to furnish relevant information ex-
tends beyond the period of contract negotiations and ap-
plies to labor-management relations during the term of
an agreement and includes the evaluation of grievances.
NLRB v Acme Industrial Co, 385 U.S. 432 (1967); Na-
tional Cleaning Co., 265 NLRB 1352, 1354 (1982).
Whether information is relevant or not is determined by
the probability that the desired information would be of
use to a union in carrying out its statutory duties and re-
sponsibilities. -
Administrative Law Judge Jerrold H. Shapiro quoting
many lead cases stated in Leland Stanford Junior Univer-
sity, 262 NLRB 136 at 139 (1982), that the standard for
determining whether information is relevant is a liberal
one much akin to that applied an discovery proceedings
and a party must disclose information that has any bear-
ing on the subject matter of a particular case The
burden of proving the relevance of information shifts ac-
cording to the nature of the information sought. The
Board in Realty Maintenance, supra, reaffirmed the requi-
site standard of relevance set forth in Ohio Power Co.,
216 NLRB 987 (1975). The -requisite standard of rel-
evance set forth in Ohio Power Co. is as follows:
Where the information sought covers the terms
and conditions of employment within the bargaining
unit , thus involving the core of the employer-em-
ployee relationship, the standard of relevance is
very broad, and no specific showing is normally re-
quired; but where the request is for information
with respect to matters occurring outside the unit,
the standard is somewhat narrower (as where the
precipitating issue or conduct is the subcontracting
of work performable by employees within the ap-
propriate unit) and relevance is required to be some-
1395
-what more precise.. . . The obligation is not unlim-
ited. Thus where the information is plainly irrele-
vant to any dispute there is no duty'to provide it.
It appears the General Counsel would have to meet the
narrower standard-of relevance in order to establish that
the Union was entitled to the requested information in
the instant case -However, this burden of proving the
relevance of outside-the-unit information is not excep-
tionally heavy, for to hold otherwise -would defeat the
very purpose of the' liberal discovery standard regarding
relevance that is to be used.-San Diego Newspaper Guild
Local 95 v. NLRB, 548 F.2d 863 at 868-869 (9th Cir.
1977); Leland Stanford Junior University, supra. -
In applying the above principles I am persuaded that
the General Counsel met his burden of establishing the
relevancy and necessity of the requested information and
that a statutory right exists, absent a waiver25 for the
Union to have the information if requested. The work ju-
risdiction provision (art. IA(a)) of the collective-bargain-
ing agreement between the parties (BCOA) taken in con-
junction with the contracting and subcontracting provi-
sion of that agreement (art. IA(g)(2)) clearly formed a
basis for the Union's request for the information it asked
for in order for it to determine if work "normally" and
"customarily" performed by the central -shop unit em-
ployees was being contracted out in violation of the col-
lective-bargaining agreement. There were only two ex-
ceptions to the provision for contracting out work: if the
repair was being provided by a manufacturer under war-
ranty or if the shop did not have equipment and skills to
perform in late 1982 and early 1983 that work was being
sent from the mines for repair, he had a valid and suffi-
cient basis for making the information requests that he
did in order to police and administer the contract as well
as to, process his ongoing class grievance regarding con-'
tracting out of repair work. Prior to making the written
requests for information to the Respondent that it did,
the Union presented the Respondent with numerous ex-
amples of what it-contended was contracting out repair
work which it believed was in violation of the collective-
bargaining agreement. Clearly it had a valid need for the
information.
Next I shall consider the particular items of the
Union's first written request to determine if the specific'
information it requested was and is relevant. I find that
the second request was merely an amplification of the
earlier request and if the first request, or any part of it,
was for relevant information the second request or at
least the corresponding part or parts found to be relevant
in the first request would' also be relevant in the second
request. Items 1, 4, and 5 of the Union's first requeste6
go to the heart of Fogg's class action grievance regard=
ing whether the Respondent was contracting out work
of the central shop in violation of the collective-bargain-
ing agreement. The information would demonstrate all
repair work including that contracted out and not -per-
formed by the central shop employees. The Union would
2s The issue of whether the Union waived its statutory right to the
information is set forth elsewhere in this decision
26 The Union's first request is set forth elsewhere in this decision
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then be in a position to adequately evaluate the situation
and make an informed judgment as to whether it could
support its contention that work was being contracted
out that was normally and customarily performed by unit
employees of the central shop. Without all such-informa-
tion .the'Union would be placed in the position of having
to rely on the Respondent's determination, of what con-
stituted work normally and customarily performed by
the central shop -employees It is this latter situation of
the Respondent unilaterally making the determination of
what work was customarily and normally performed by
the central shop that causes the Respondent's answers to
the Union's requests to be inadequate, Items 2, 3, and 6
of the Union's initial request would relate to its.conten-
tion Respondent was attempting to use purchase orders
for new, repaired, or -rebuilt items in order to circumvent
central shop repair work customarily and normally per-
formed by unit employees.
Whether the. Union can prevail before an arbitrator
with the information it requested is not the issue before
me, I need not decide, nor do I decide, the underlying
grievance. It is my function to.determine -if the requested
information is relevant and whether it could make tena-
ble the Union's • contention _ of alleged- violations . of the
contract by the Respondent. Fogg testified he had com-
plaints that motors were being discarded and that those
same motors were being-rebuilt by an outside contractor
and then sold back to the Respondent as new.or rebuilt
parts.
Such concerns lend credence to the Union's contention
that the Respondent might be in violation of the contract
and as such the Union is entitled to the information it.re-
quested in order to make an informed evaluation of the..
situation . Item 7 of Fogg's initial request for information
was not alleged in • the complaint; therefore, I shall not
address Item 7. Items 8 and 9 of the request would, with
certainty, establish the -relationship between the Re-
spondent and Sycamore mines and such information
could lend some credence to the Union's contention that
since the Sycamore. mines are , located within the geo-
graphical area served by the central shop that the repair
work from those mines should come to the central shop.
Further, the information would allow the Union to make
an evaluation as to whether the -repair work from.those
mines . was of the type customarily and .normally per-
formed by unit employees at the central shop
The failure to provide this information would place
the Respondent in the position of unilaterally determin-
ing that the work was outside the jurisdiction of the cen-
tral shop rather than allowing an arbitrator to make that,
determination, if the Union decided, based on the re-
quested information, that the matter should be submitted
to an arbitrator as a possible violation of the collective-
bargaining agreement. The Union's second request for in-
formation was simply a more detailed request for the
same information it had earlier sought. The Respondent's
second reply was inadequate and deficient in that it again
placed, itself in the position of unilaterally determining
the elusive and perplexing question of what constituted
work customarily and normally performed by the central
shop unit employees rather than allowing an arbitrator, if
necessary, to make that determination after the Union
had made an informed evaluation of the situation based
on the information it requested . The request for the same
type information running to 1982 is potentially relevant
with respect to the Union 's claim that it may, - within a
set period of time after it has knowledge of-any potential
contract "violations , file grievances regarding its conten-
tions. - -
Accordingly, I find the reasonable or probable rel-
evance of -the information requested . by the Union has
been established and the Respondent has a statutory obli-
gation to furnish the requested information.
I now turn to the issue of whether " the Union has
waived its statutory right to the requested information.
Stated otherwise does the collective -bargaining agree-
ment between the parties impose on them a compulsory
duty to exclusively request through the collective-bar-
gaining agreement information needed to process a griev-
ance or police the agreement . For the reasons I shall'set
forth I'am persuaded the Union clearly and umistakenly
waived its statutory right to the requested information.
The `parties ' collective -bargaining agreement at article
XXIII , Settlement of Disputes , section (c), Grievance
Procedure27 states in part.
Should differences arise between the Mine Workers
-and an Employer.as to the meaning and application
of the provisions of this Agreement, or should dif-
ferences arise about matters not specifically men-
tioned in this Agreement, or should local trouble of
any kind arise at the mine, an earnest effort shall be
made to settle such differences at the earliest practi-
cable time. . -
The "differences" mentioned in this contract provision
are not.limited to contract interpretation and application
but clearly cover "differences" regarding matters "not
specifically mentioned" in the collective-bargaining
agreement as well as "differences" involving "local trou-
ble of any. kind." It is apparent that the grievance arbi-
tration machinery was to be utilized for all misunder-
standings that might arise out of any interpretation of
any clause or clauses of the collective-bargaining agree-
ment. In comparing the current contract language to that
before the United States Supreme Court in Gateway Coal
Co., 414,U.S. 368 (1974), I note that the Court placed a
broad interpretation on similar language contained in the
National Bituminous -Coal Wage Agreement of 1968.
When article XXIII, section (c) of the current agreement
is read in conjunction with article XXVII it is inescap-
able that all differences between the.parties are to be re-
solved by the machinery of the collective-bargaining
agreement Article XXVII, Maintain Integrity of Con-
tract and Resort to Courts, states-
The United Mine Workers of America and the
Employers agree and affirm that, except as provid-
ed herein, they will maintain the integrity of this
contract and that-all disputes and claims which are
not settled by agreement shall be settled by the ma-
2 The grievance procedure is set forth in full elsewhere in this deci-
sion , -
CLINCHFIELD COAL CO -
chinery provided in the "Settlement of Disputes"
Article of this Agreement unless national in charac-
ter in which event the parties shall settle such dis-
putes by free collective bargaining as heretofore
practiced in the industry, it being the purpose - of
this provision to provide for the settlement of all
such disputes and claims through the machinery in
this contract and by collective bargaining without
recourse to the courts.
The Employer, however, expressly authorizes the
Union to seek judicial relief,. without exhausting the
grievance machinery, in cases involving successor-
ship.
The broad language of the current agreement also states
that the settlement-of any grievance dispute at any step
of the -procedure is final and binding on the parties as
well as any decision or decisions of an arbitrator. Addi-
tionally, the current agreement contains what was some-
times referred to in this proceeding ,as the "full-disclo-
sure" provision of the agreement. That provision-article
XXIII, section (e), Earnest Effort to Resolve Disputes-
states at the second paragraph-
At all steps of the complaint and grievance proce-
dure, the grievant and the Union representatives
shall disclose to the company representatives a full
statement of the facts and the provisions of the
Agreement relied upon by them. In -the same
manner, the company representatives- shall disclose
all the facts relied upon by the company. - -
Considered together the above portions of the current
collective-bargaining agreement between the parties es-
tablish that the Union clearly and unmistakably waived
.11
1397
its statutory right to the information it requested.- It
agreed, that all differences between the parties would -be
either negotiated out or submitted to the final and bind-
ing arbitration machinery of the. collective-bargaining
agreement. It also agreed to a procedure for disclosure
of information with respect to grievances and further
agreed to resolve all disputes without outside' litigation.
The United States Supreme Court in Metropolitan Edison
Co., 460 U.S. 693 (1983), recognized that a union could
and might choose to bargain away a statutorily protected
right in order to secure gains it might consider of more
value to its members and its decision to do so would fall
within the range of"reasonableness accorded bargaining
representatives.' Accordingly, I conclude and find that
the .Union waived its statutory right to the information it -
requested which information is set forth in paragraph 8
of the complaint, and as such I recommend the com-
plaint be dismissed in its entirety. -
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not committed unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act, since on or about May 10 and June 21, failing and
refusing to furnish the Union certain requested informa-
tion.
4. Respondent has engaged in no unfair labor practices
violative of the Act.
[Recommended Order for dismissal omitted from pub-'
lication.]