Consolidation Coal Co.

National Labor Relations Board - Board Decisions

Dec 15, 1980

253 N.L.R.B. 789 (N.L.R.B. 1980)

CONSOLIDATION COAL COMPANY
Consolidation Coal Company and Local Union 9721,
United Mine Workers of America. Case 14-
CA- 13473
December 15, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On August 15, 1980, Administrative Law Judge
Harold Bernard, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions ith respect to credi-
bility unless the clear preponderance of all olf the rlesant evidence con
vinces us that the resolutions are incorrect. Standard Drn Wall Productv.
Inc., 91 NLRB 544 (1950), enfd 188 2d 362 (3d Cir 195 1) We have
carefully examined the record and find no basis for reversing his findings
2 In affirming the Administrative Law Judge's conclusion that Re-
spondent has violated Sec 8(a)(5) and (1) of the Act by refusing to ex-
ecute a written agreement embodying the terms and conditions of the
agreement reached with the Union in regard to absenteeism. we princi-
pally rely upon the Administrative Law Judge's finding, based upon the
credited testimony of the union committee president, Thomas, that there
were no reservations or conditions expressed by either Thomas or Re-
spondent's mine superintendent. Gann, as to the agreement they had
reached on January 22 or 23 Thus, there was at that time a final uncon-
ditional agreement between the parties as to a new absenteeism policy
and Respondent's subsequent refusal to execute the written embodiment
of that agreement constitutes a violation of Sec 8(a)(5) of the Act.
In its brief in support of exceptions. Respondent contends that the Re-
gional Director should have dismissed the charge and deferred the matter
to the grievance-arbitration procedure contained in the collective-bar-
gaining agreement between the parties pursuant to the Board's Decision
in Collyer Insulated Wire, A Gulf and Western Svstems Co., 192 NI.RB 837
(1971). Respondent excepts to the failure of the Regional Director to so
defer, and requests that the Board defer now. However. Respondent did
not raise this position as an affirmative defense in its answer to the com-
plaint, nor did it raise this contention before the Administrative Law
Judge at the hearing, nor in its post-hearing brief to the Administrative
Law Judge, and thus the record before us is insufficient upon which to
base a determination as to the appropriateness of deferral MacDonald
Engineering Co., 202 NLRB 748 (1973)
In any event, disputes, like the instant one, about the fundamental exist-
ence of an agreement between the parties, as opposed to disputes about
the interpretation of any such agreements, are not subject to deferral by
the Board. Frank Naccarato. a Sole Proprietor, d/b/a Naccarato Construc-
tion Company. et al., 233 NLRB 1394, 1400 (1977).
Member Jenkins would not in any event defer to arbitration in this pro-
ceeding for the reasons set out in his dissenting opinion in Collyer, supra.
In agreeing with his colleagues as to the ultimate disposition of Re-
spondent's argument for deferral, Member Zimmerman relies entirely on
the fact that the Collyer issue is not properly before the Board at this
stage of the instant proceedings. Thus, his rejection of Respondent's be-
latedly renewed request for deferral is not to be taken as a statement by
Member Zimmerman of adherence to or rejection of the principles es-
poused in Collyer.
253 NLRB No. 104
and to adopt his recommended Order, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Consolidation Coal Company, Pinckneyville, Illi-
nois, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
in good faith with Local Union 9721, United
Mine Workers of America, in the appropriate
unit by refusing to sign the absentee policy
agreement on which the Company and the
Union had reached agreement in January 1980.
WE WILL NOT refuse to carry out said
agreement.
WE WILL NOT in any like or related manner
interfere with, retrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to form, join, or assist labor organiza-
tions, including the Union herein, to bargain
collectively through representatives of their
own choosing, to engage in concerted activi-
ties for the purposes of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
WE WILL forthwith sign the written absen-
tee policy agreement with Local Union 9721,
United Mine Workers of America.
WE WILL make whole our employees for
any losses they suffered by reason of our fail-
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ure to sign and abide by the agreement, with
interest.
WE WILL rescind all disciplinary action
taken against employees for absenteeism since
January 1980, and follow the terms of the ab-
sentee policy agreement with respect to this
subject.
CONSOLIDATION COAL COMPANY
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge:
This case was heard before me on May 1, 1980, in St.
Louis, Missouri, on the complaint allegation that Re-
spondent refused to execute a local agreement reached
between the Union and Respondent on employee absen-
teeism, thereby violating Section 8(a)(5) of the Act.
Upon the entire record, including my observation of
the witnesses, and upon consideration of the briefs filed
by the counsel for the General Counsel and Respondent,
I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Illinois corporation engaged in the
mining, sale, and distribution of coal at Burning Star
Mine #2, a coal mine located near Pinckneyville, Illinois,
as well as other locations. Annually, Respondent ships
products valued in excess of $50,000 directly to custom-
ers outside Illinois and I find, as it concedes, that Re-
spondent is an employer engaged in commerce within
the meaning of the Act. There is also no dispute, as fur-
ther conceded by Respondent, that Bituminous Coal Op-
erator's Association, Inc., a nationwide bargaining associ-
ation of employees in the coal industry, including Re-
spondent, is an employer engaged in commerce within
the meaning of the Act. I so find. The Union concededly
is a labor organization within the meaning of Section
2(5) of the Act.
II. THE APPROPRIATE UNIT
By its answer, Respondent admitted the complaint al-
legation of appropriate unit as described in a collective-
bargaining agreement between the Association and the
Union covering employees at Burning Star and running
from March 1978 to March 1981, introduced into evi-
dence as Geneneral Counsel's Exhibit 7. No precise defi-
nition of this unit was provided by the parties. A reading
of this contract discloses that, while it does not contain a
unit description in hoc verba, nevertheless a general iden-
tification of the bargaining unit can be garnered from the
document's reference to work jurisdiction, exemptions of
supervisory and certain nonproduction or nonmainten-
ance classifications, as well as a description of pay grades
for included classifications. Therefore, while it is not
possible to set a particular definite bargaining unit de-
scription, it suffices for the purpose of this Decision to
note that there are no apparent statutorily prohibited cat-
egories of personnel included in the parties' contract unit
which by its terms includes all production, maintenance,
and shipping or transportation employees of Respondent
at the Burning Star Mine, exclusive of supervisors and
others who occupy positions which, on the face of it,
appear excludable from such unit, viz, coal inspectors,
weigh bosses, watchmen, clerks, and technical employees
(G.C. Exh. 7, exemptions clause, pp. 3 and 4). Based on
the foregoing, the parties' stipulation that the bargaining
unit contained in General Counsel's Exhibit 7 is appro-
priate is accepted into these findings.
Respondent admits, and it is further found, that the
Union, since March 27, 1978, has been, and is now, the
recognized exclusive collective-bargaining representative
for employees in the above bargaining unit for the pur-
poses of collective bargaining over wages, hours, and
other terms and conditions of employment, said recogni-
tion having been embodied in successive collective-bar-
gaining agreements, the most recent being General
Counsel's Exhibit 7.
Ill. HE UNFAIR LABOR PRACTICES
There is a short time frame for the events in this case,
which begin on January 17, 1980, at a meeting between
Respondent and the Union over a proposed local agree-
ment governing absenteeism, and end on the following
January 28.
The meeting on January 17 was attended by the union
committee president, Jim Thomas, and committee mem-
bers, Leonard Rice, Bob Horn, and George Little. Mine
Superintendent Roger Gann represented Respondent, as-
sisted by Dave Rogers, assistant superintendent at Burn-
ing Star Mine #2. At the outset it is clear, and I find,
that Gann was an agent for Respondent, acting on its
behalf, and that such role included the negotiations for a
policy governing absenteeism. Furthermore, it is clear
that Gann, who had negotiated similar matters with
Union President Thomas, had, neither with respect to
those past agreements, nor the present absentee policy
agreement, never communicated that he lacked the au-
thority to bind Respondent to such agreements. The Ana-
conda Company, 224 NLRB 1041 (1976); Aptos Seascape
Corporation, 194 NLRB 540 (1971). In fact, Gann himself
was in charge of making decisions regarding excessive
absenteeism at the mine and the meeting in question
arose from letters of reprimand that had been issued to
mine employees for absenteeism.
During the meeting on January 17, the parties bent
their efforts towards agreeing on a unified code to
handle both standards for determining what constituted
excessive absences and what the penalties would be.
There is no doubt that the bulk of a system was worked
out on January 17, and that Gann assured Thomas that
"we've agreed to it." That evening the local union mem-
bership voted to accept the plan with certain stipulations.
A close analysis of the record also indicates that
Thomas, when explaining the plan to the members, had
described a provision for an employee to "clear" his ab-
sentee record by stating, in effect, that a 6-month period
of time would be required of no unexcused absences
before a "fresh slate" could be attained.
790
CONSOLIDATION COAL COMPANY
The next day, January 18, the Union informed Gann
about the stipulations or changes, and, after some back
and forth comments, Gann agreed to the proposals.
Thomas asked, "Well, we've come to an agreement
then?" Gann said yes and, "You see, we can work things
out in here after all." It was left that Gann would have
the agreement typed up and let the Union know when
this was done. Thus, at this point in time, the bulk of a
new plan, incorporating changes as proposed by the
Union, had been agreed upon by the parties.
On January 22 or 23, Thomas and Rice returned to
Gann and Rogers with misgivings over their understand-
ing of how an employee could clear his record, Thomas
having considered that matter further since the local
union meeting on January 17, and come to the view that
6 months was too long a period for an employee finding
himself in the third step in the disciplinary procedures of
the plan to have to face the spectre of possible discharge.
There were comments back and forth until Gann, who
had prior experience with an absenteeism plan at another
location, made the suggestion that "clearance" could be
achieved by providing for an employee reverting to ear-
lier penalty stages assuming proper attendance, the latter
to be based upon an agreed percentage, within further
agreed upon time periods, viz, two stages consisting of 3
months each. Thomas said, "That sounds fair to me.
Roger, I appreciate it, getting this worked out. When
will we have it typed up?" When Gann said the next
day, Thomas said he would have his committee in at
3:30. The purpose of having the committee in was to
sign the agreement.
Gann's version up to this point does not contradict
Thomas' view; however, Gann testifies that Thomas
before leaving stated that he would have to get approval
or clearance with the committee on this and that, it
would have to be held open until he got that approval.
Gann further testified that Gann then responded that, if
Jim were going to hold it open, he was going to have to
hold it open. Union witnesses Thomas and Rice deny
that Gann said this, and while Respondent tried to make
much over Rice's testimony at a later hearing for tempo-
rary injunction wherein he said he did not believe he re-
membered that Gann said this, by way of unfavorable
contrast with Rice's testimony in this proceeding where-
in he denies Gann made the statement, I find little
weight in Respondent's argument inasmuch as Respond-
ent's interpretation of Rice's earlier testimony does not
necessarily connote that Gann did make the remark-this
could have been Rice's speech mannerism at the time for
saying he did not believe that Gann had made the state-
ment not that he did not believe he remembered Gann
doing so, and further, circumstances occur during the
passage of time which refresh a witness' recollection of
earlier events so that Rice's testimony and to a like
extent Thomas, in a similar regard, could be perfectly re-
liable.
There are other factors which militate against finding
that Gann said the matter would be held open as con-
trasted with the testimony to the contrary. The first is
that while Respondent's assistant superintendent of the
mine, Rogers, was present at this meeting and though
Respondent itself makes this a crucial credibility issue ap-
pearing to consider it controlling on the outcome of the
case it did not offer Rogers to testify by way of corrobo-
ration of what his own supervisor said on this central
issue. An inference is thereby warranted that such testi-
mony would not support or corroborate Gann. Claussen
Baking Company, 115 NLRB 824 (1956); and Dunrail
Construction Co., Inc., and Crossway Motor Hotels. Inc.,
151 NLRB 98 (1965). Furthermore, whei. questioned
why he did not feel that approval from the committee
would have been required for the change in the clear-
ance policy agreed to on January 22 or 23, Thomas' ex-
planation that since the membership had already agreed
on January 17 to a policy wherein the clearing proce-
dure, on its face at least, was more strict towards em-
ployees than the later more lenient procedure, he did not
believe further approval was necessary, was a totally rea-
sonable explanation lending credence to the view that
Thomas had never said he had to leave the matter open
for approval because he would see no requirement for
such approval.
in addition, when one looks at the objective manifesta-
tions in the parties' conduct, there is still further doubt
that Gann effectively limited his offer by the alleged
statement. There is no question that Gann had the
policy, General Counsel's Exhibit 2, typed up in some
form ready for signature on January 24; indisputedly in
final form later that same day or January 25. This tends
to support the view that Gann was not holding back
agreement at the meeting on January 22 or 23 as does
the fact that it was Gann's offer that paved the way for
the parties to reach agreement; there was no other out-
standing question, and it is unlikely he would have "re-
served" on his own proposal, though not impossible to
imagine. Further, pointing to this view is that Gann had
not hedged on accepting the bulk of the plan, or on ac-
cepting substantial changes proposed by the Union earli-
er and no persuasive reason appears why Gann would
hedge on this tail end subprovision in the agreement.
Gann may very well have harbored some mental reser-
vations, but he knew that an appointment was definite
for the very next day to sign the agreement in some
typed form, and made no statement whatsoever to indi-
cate that the agreement would not be signed then, al-
though he could have easily done so had there been real
indecision in his mind, or an inclination to check with su-
periors. The conclusion is compelling that there were no
reservations, and therefore none were expressed.
At any rate, the next day the entire union committee
arrived at Gann's office to sign the typed absentee policy
agreement. but, despite this meeting being prearranged
the day before, Gann was out at the mine without his
beeper and forgot the meeting. There is no evidence nor
does Respondent argue that the agreement was not
ready. However, on January 25, Thomas saw Gann at a
safety grievance meeting and asked Gann where the
agreement was. Thomas did not raise any problem re-
garding the policy which is consistent with the view that
the Union was again seeking to sign it. Gann told
Thomas merely that a regional superior official for Re-
spondent had it. I credit Thomas that when he asked
Gann, somewhat forcefully, why, that Gann assured
791
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas that he was not going to change it but just
wanted to look it over. Thomas asked Gann to get back
to the Union when Gann got the policy and talk about
that issue ceased at that meeting.
On the following Monday, Thomas and Rice again
went in search of the policy at Gann's office and Gann
told them, "We're not going to accept the absentee
policy." Thomas said immediately, "You already agreed
to that absentee policy." Gann merely shrugged his
shoulders. Thomas was correct.
Respondent's argument that the course in negotiations
over a policy was marked by union withdrawal from
agreements prior to the January 22 or 23 meetings and
that fairness would seem to require that Respondent not
be found guilty of a refusal to bargain at the terminal
meeting over a "third" agreement is supported by the
record and has a certain subjective appeal were this in-
quiry one concerned with whether or not there had been
good-faith bargaining, because Gann exhibited a willing-
ness to be open, receptive, and even helpful in effectuat-
ing union proposals after there had been apparent agree-
ments in prior meetings. Whatever part motive may play
in assessing such question is beside the point here, where
the question is limited to whether the parties had
reached agreement on all the provisions in a policy and,
like the issue of whether an employer has unilaterally
changed working conditions without notice to or bar-
gaining with the bargaining representative for employees,
the employer's motive is irrelevant. Maury's Flourescent
& Appliance Service, 226 NLRB 1290 (1976).
At the meeting leading to the agreement on a clearing
provision, it was Respondent. through Gann, the highest
employer representative at the mine, in charge of disci-
pline for absenteeism, and who had made prior agree-
ments with the Union on important employment condi-
tions who offered the "clearance" provision to the Union
as a small subprovision to an agreement largely, almost
wholly, agreed to by both parties. On the controlling
issue whether the parties had reached agreement, the
precise question whether the Union's president stated it
would have to be left open for approval, after immedi-
ately expressing total satisfaction and acceptance to
Gann, and Gann stated himself it would have to be left
open is largely immaterial for the following reasons.
The parties agree that General Counsel's Exhibit 2
contains their entire agreement and the record establishes
that Gann was entirely agreeable to General Counsel's
Exhibit 2 prior to being instructed by a higher official
not to sign it. If one assumes that there was no hedging
by either side at the January 22 or 23 meetings, there
was therefore a complete understanding and agreement
that day and the Respondent's refusal to sign General
Counsel Exhibit 2, from January 28, 1980, on was unlaw-
ful, given the Union's clear acceptance of the clearing
provision and the entire agreement on the spot well
before January 28. N.L.R.B. v. Joseph T. Strong, d/b/a
Strone Roofing and Insulating, 393 U.S. 337, 359 (1969),
and H. J. Heinz Company v. N.L.R.B., 311 U.S. 514
(1945).
Assuming that Gann did indicate he would have to
hold it open because the Union had indicated the need to
do so for approval, there are two important observations
to keep in mind. The first is that by merely saying he
would keep the offer "open" Gann was not in any way
revoking the specific provision offered to clear an em-
ployee's record. This is plain on its face. Williston on
Contracts, 3d ed., §55, p. 178. Secondly, while it can be
argued that the statement creates ambiguity of sorts, in
the suggestion of a possible condition, I am not satisfied
in this context that Gann in any way was indicating the
need to refer the matter to higher authority as a condi-
tion precedent to an agreement. While Gann did so on
his own in the past, he sometimes did not do so, and
clearly did not state he intended to do so in this case.
What does occur as a reason for Gann possibly saying
this, since there was no revocation of the offer, and no
condition precedent, is that Gann, having twice given in
to the Union's demands for a better agreement wished to
avoid playing the role of a supplicant or "dog in the
manger" a third time around, and decided to instill
enough uncertainty into matters as would perhaps avoid
the company appearance of holding its hat in its hand in
these negotiations and also, as a good negotiator, en-
hance the chances that the other side would take the
offer and run. Based on this, I would find Gann's com-
ments, if made, left the Union a valid unconditional offer
that day.
Assuming still further Gann's testimony that the Union
hedged in order to seek approval from the committee is
accurate, so that there was no complete acceptance on
January 22 and 23, there can be no question that the
offer was still open and was accepted by the Union un-
equivocally at 3 p.m., January 24, when the entire union
committee appeared at Gann's office at the appointed
time for signing the agreement. The record establishes no
other purpose for this visit than as a clear manifestation
of the Union's complete acceptance of the offer, and it is
a strong likelihood that if there was some question or
problem concerning the policy the Union would have
left word for Gann to such effect and Respondent would
make such claim in this proceeding. It did not do so.
Finally, on the very next day, January 25, the Union
again sought out the agreement from Gann, expressing
surprise that Gann did not have it but being assured by
Gann that it was not to be changed. The Union again
manifested its acceptance of the agreement making cer-
tain that Gann understood such by asking to be informed
as soon as Gann got it back. Gann's reassurances to the
Union in this regard also establish still further that there
had been no revocation of Respondent's prior offer and
again, by not informing the Union that he was seeking
either authority or approval for the proposal at a time
when it would have been reasonable, if not compelling,
to do so if indeed such were the case, Gann, and thereby
Respondent, indicated the unconditional nature of its
offer in the negotiations even as late as January 25, lend-
ing still further support to the conclusion that there had
been an effective acceptance and complete contractual
understanding between the parties prior to January 28.
Since whether or not Respondent's or the Union's view
of the remarks made by the parties is credited, there
clearly was a full agreement reached by the parties on
the entire contents of an absentee policy as embodied in
792
CONSOLIDATION COAL. COMPANY
General Counsel's Exhibit 2 and manifestly in the cir-
cumstances, Respondent, although pressed by the Union
to execute that agreement has refused to do so on and
after January 28, 1980, without good reason, I find that
Respondent violated Section 8(a)(5) and (1) of the Act.
Deluxe Poster Co., Inc. d/b/a Johnson Printers, 238
NLRB 335 (1978); The Tavman Sea. Inc., 247 NLRB No.
7 (1980). The record further discloses that Respondent
has not been following General Counsel's Exhibit 2 pro-
cedures or format, which it had agreed to, in sending dis-
ciplinary letters to employees for absenteeism since Janu-
ary 28, 1980, and is thereby in continuing violation of the
Act, requiring an appropriate remedy addressed both to
signing the earlier accord, General Counsel's Exhibit 2,
and to undoing the effects on employees for any losses
incurred by them flowing from its unlawful failure to
sign and abide by said agreement. Deluxe Poster Co., tc.,
supra.
CONCI tUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdiction
herein.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The unit as contained in the parties' current collec-
tive-bargaining agreement effective from March 27, 1978,
to March 27, 1981, is an appropriate bargaining unit
within the meaning of Section 8(a)(5) and (1) of the Act.
4. Since March 27, 1978, the Union has been the duly
certified and designated exclusive representative of the
employees in the unit found to be appropriate within the
meaning of Section 8(a)(5) and ( 1) of the Act.
5. By unlawfully failing and refusing to execute a writ-
ten agreement embodying the terms and conditions of
the agreement reached with the Union in January 198(0,
as found herein, and by failing to carry out said agree-
ment, Respondent engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act
6. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed by Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(I) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THt RMI:mI)
It will be ordered that Respondent cease and desist
from its unfair labor practices and take certain affirma-
tive action deemed to effectuate the purposes of the Act.
It will be further ordered that Respondent sign the ab-
sentee policy agreement reached between the Union and
Respondent in January 1980, as above-described, that it
make whole its employees for any loss of wages or other
employee benefits they may have suffered as a result of
Respondent's failure to sign the agreement. The loss of
any earnings together with interest under the Order shall
be computed in the manner set forth in F Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).'
It will be further ordered that any action taken by Re-
spondent against employees with respect to, or falling
under the heading of disciplinary action for absenteeism
from January 1980 to the present, including warnings,
suspensions, discharges, placement into disciplinary cate-
gories for purposes of possible further action, letters of
reprimand, and the like, shall be rescinded or removed
from the employees' personnel files irrespective of
whether or not such action taken before this Order
might arguably coincide with the form of action that
would have been taken had Respondent complied with
its January 1980 agreement with the Union, so as to
achieve full compliance with said agreement and the
benefits therefrom for Respondent's employees.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 2
The Respondent, Consolidation Coal Company, Pinck-
neyville, Illinois, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Local Union 9721, United Mine Workers of America, by
refusing to sign the agreement embodying the terms and
conditions of an absenteeism policy on which the parties
had reached agreement in January 1980.
(b) Failing to carry out said agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to frm, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Forthwith sign a written agreement embodying the
terms and conditions of employment on which the par-
ties had reached agreement in January 1980, herein
termed the "absentee policy."
(b) Upon execution of the aforesaid agreement, make
whole its employees for any losses they may have suf-
fered by reason of Respondent's failure to sign and abide
by the agreement, and rescind disciplinary action with
respect to absenteeism since January 1980 and the date of
compliance with this Order, in the manner set forth in
the section of this [Decision entitled "The Remedy."
See, gTiClal. IAis Plumhrn & Iuling C(t, 1 I8 NLRB 71h (Iqtl2)
: In the c;enir nol cceptlmls are filed a prrwided hb Sc 1(12 4 o the
Rules and Rcgulllttlns f lhe Naliolill abor Rlation,l Board. he find-
Il gs, coiclultITis. nd recornniltlld-d (Order hereinl shall as provided in
Sct 102 48 oft the Rule, and Regulations, hbc ad.pted h the Board and
become its indlinlgs. colnl usions, and ()rder, arid all bhletilslo thereto
shall be deemed '.atcd or all rpurposes
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its place of business, the Burning Star Mine
#2, Pinckneyville, Illinois, copies of the attached notice
marked, "Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 14, after
being duly signed by Respondent's authorized repre-
a In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posled by
Order of the National Labor Relations Board" shall read "Posted Pursu-
alit to a Judgment of the United States Court of Appeals Enforcing an
Order oif the National Labor Relations Board "
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
794