Consolidation Coal Co., Burning Star No. 4 & No. 5

National Labor Relations Board - Board Decisions

Nov 19, 1985

277 N.L.R.B. 545 (N.L.R.B. 1985)

CONSOLIDATION COAL CO.
Consolidation Coal Company, Burning Star No. 4 &
No. 5 and International Union, United Mine
Workers of America . Case 14-CA-17350
19 November 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 30 January 1985 Administrative Law Judge
Bernard Ries issued the attached decision. The
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief
to the Charging Party's exceptions.
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,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i Chairman Dotson agrees with the judge that the charge was untime-
ly under Sec. 10(b) of the Act and therefore finds it unnecessary to make
any determinations with respect to the merits of the allegations
Members Dennis and Babson agree that the complaint should be dis-
missed, but find it unnecessary to relly on the judge's analysis in sec. III
of his decision, specifically pars 13-20, regarding whether the Respond-
ent's failure to grant merit increases within the 6 months preceding the
charge's filing was unlawful. As the judge found in fns 11 and 17 of his
decision, the complaint only alleges the Respondent's conduct "[o]n or
about January 1, 1983," to be unlawful, and this additional issue was not
fully litigated Cf. Kelly-Goodwin Hardwood Co., 269 NLRB 33, 37-38
(1984).
Robert S. Siegel, Esq., for the General Counsel.
Paul JJ Schroeder, Jr., Esq. (Spoehrer and Lemkemeier), of
St. Louis, Missouri, for the Respondent.
Gilbert Feldman, Esq. (Cornfield and Feldman), of Chica-
go, Illinois, and Barbara Gumbel, Esq., of Silver
Spring, Maryland, for the Charging Party,
DECISION
BERNARD RIES, Administrative Law Judge. On a
charge filed on March 29, 1984, and a complaint issued
by the Regional Director for Region 14 on August 15,
1984, this case was heard in St. Louis, Missouri, on No-
vember 26, 1984. The complaint alleges that by discon-
tinuing, about January 1, 1983, a practice of granting
annual merit pay increases to the employees in the two
bargaining units involved, Respondent violated Section
8(a)(1), (3), and (5) of the Act. The answer, as amended
al the hearing, denies the complaint allegations in materi-
al respects.
545
Briefs have been filed by the General Counsel, the
Charging Party, and the Respondent. Having given care-
ful consideration to the arguments advanced in the briefs,
having reviewed the entire record, and taking into ac-
count my recollection of the demeanor of the witnesses,
I make the following'
FINDINGS OF FACT
1. THE ISSUES
As set out above, the complaint alleges that Respond-
ent violated Section 8(a)(3) and (5) about January 1,
1983, by making inapplicable to certain employees a
companywide merit raise program, shortly after the right
of the Charging Party to represent these employees had
been confirmed by the United States Court of Appeals
for the Seventh Circuit.
It does not appear that Respondent challenges the as-
sertion that the merit review system was a bargainable
term of employment. Respondent does, however, state
three issues in its brief: whether the complaint is barred
by Section 10(b) of the Act; if not, whether the Union
waived its right to bargain over the suspension of the
program; and, with respect to the 8(a)(3) violation,
whether the General Counsel has presented sufficient
evidence that the conduct at issue was unlawfully moti-
vated.
II. THE BASIC FACTS
A. The Annual Merit Review Program and Its
Modification
Respondent operates coal mines in several States. The
warehouse employees of the two mines in issue here,
Burning Star 4 and Burning Star 5, which are both locat-
ed in Illinois, voted in 1980 to be represented for pur-
poses of collective bargaining by the Charging Party,
The December 3, 1980 certifications of the Union as the
representative of the warehouse employees at the two
mines were unsuccessfully challenged by Respondent
before the Board (256 NLRB 541 (1981)) and the Court
of Appeals for the Seventh Circuit, which enforced the
Board's bargaining Order on December 9, 1982.
Since at least 1976, Respondent has maintained in
effect for all its rank-and-file salaried employees (which
includes warehouse employees) at all its mines an
"annual merit review program." The parties have stipu-
lated that effective January 1, 1983, "warehouse employ-
ees at Respondent's Burning Star Mines No. 4 and 5
were removed from eligibility to participate in" the pro-
gram, and that they were the only employees so re-
moved.
This "removal" was not formally announced to the
Union before, on, or after the January 1 effective date.
The closest thing to any official notification was a letter
written by counsel for Respondent to union counsel in
January 1981, while the representation proceedings were
sub judice, advising that Respondent was "considering a
indefinite suspension of merit wage increases for certain
i Certain errors in the transcript have been noted and corrected
277 NLRB No. 60
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its employees who are not covered by the master con-
tract with the UMWA," including "certain warehouse
personnel at Burning Star Mines 2, 3, and 4," and offer-
ing the Union an opportunity for "discussion [of] this
matter."2 The Union did not respond, and the record in-
dicates that the merit wage review system thereafter re-
mained in full effect at mines 4 and 5 during 1981 and
1982.
The evidence is rather sparse about the details of the
operation of the wage review program, but it appears
from the testimony of Harold Woolard, warehouse su-
pervisor for mine 5, that he was required to make annual
evaluations of his five warehouse employees3 in the first
quarter of the year and submit them to "upper manage-
ment," which eventually informed Woolard of the per-
centage amount and effective date of the raises to be
given. It further appears that, as a rule, the raises were
given annually, although there may have been occasions
on which more than 12 months elapsed between the in-
creases, and that the raises were virtually automatic-i.e.,
if an employee was capable of retaining his employment,
he was worthy of some sort of raise.4
B. The Evidence Allegedly Indicating Union Animus
Mine 5 warehouse employee Douglas Aired testified
that some time in October or November 1982, Supervi-
sor Woolard told him that all five employees would re-
ceive their annual raises, but they would be late. Around
December of that year, Woolard told Aired and Leo
Ogilini, another mine 5 warehouse employee, that Ogi-
lini, Roberta Rolando, and Earl Hatfield would be get-
ting their raises, retroactive to December 1, but that
Aired and the remaining warehouse employee, Richard
Hall, would not be receiving increases. When Aired
asked the reason, Woolard reportedly said that "either
the Company or the Company's attorneys decided since
the Court decision came down in December that they
didn't have to give a raise because it was a potential
union shop and there wouldn't be no more raises after
January." Aired also testified to his belief that the three
employees who did receive raises "were probably due a
month 'prior to mine [and Hall's]." Evidently Aired
thought that the raises were keyed to an anniversary
S On brief, Respondent 's counsel, who authored the letter , states that
"it should be noted that a typographical error appears therein," the error
being the reference to mine 2 instead of 5. This was not mentioned at the
hearing Counsel asserts that mine 2 was not "involved in Union negotia-
tions," and that only mines 3, 4, and 5 were "involved in the negotia-
tions." This all may be true , there being some reference in the record to
the Union not having prevailed in an election at mine 2 (the Union appar-
ently won at mine 3, but the mine was thereafter closed ), although it
seems obvious that no "negotiations" were taking place in 1981, at which
time the cases were being appealed . In any event , counsel's representa-
tion can only be given the weight of a contention
3 Mine 4 also employed five warehouse persons
& While Industrial Relations Director B B. Hyler testified that the
raises were "not necessarily an annual type of event," the parties ' stipula-
tion that the mines 4 and 5 warehouse employees were "removed from
eligibility to participate in the annual merit review program which Re-
spondent had maintained " indicates that annual reviews and raises were
contemplated Eight-year employee Roberta Rolando testified without
contradiction that , as far as she knew , "everybody had always got some
kind of raise every year that they were employed "
date, a belief supported by Supervisor Woolard's testimo-
ny discussed below.
Roberta Rolando testified to a conversation between
Woolard, herself, Hall, and probably Aired, around the
first part of December, when Woolard told the employ-
ees that Aired and Hall would not be getting raises "be-
cause it was a potential Union job and that was it." Since
Aired mentioned only Ogilini ("I believe") as present at
his conversation with Woolard set out above, and since
Aired put his talk with Woolard at "late in the day"
while Rolando referred to "early of a morning," it may
be that this was a different encounter, but it would sur-
prise me if Woolard had the same discussion twice with
Aired present both times. Rolando said she was "almost
sure" that Aired was at the conversation she described,
but Ogilini was not (she was working his day off).
Supervisor Woolard testified that in January 1983 he
told Aired and Hall, who "were supposedly due for
raises that month," that they would not be receiving
them.5 His asserted explanation to the men was that
"since the decision by the Court that they could negoti-
ate that it was the Company's understanding that it
would be illegal to give merit raises." He denied using
the phrases "union shop" or "union job" in the conversa-
tion, and he could "recall" no other occasions on which
he had discussed merit raises with the employees. Woo-
lard further testified that he had been told in December
("I think") that all five employees would receive in-
creases, three in December and two in January, and he
had so told all of them; it was presumably shortly after
the court of appeals had rendered its decision that
"upper management" determined to put into effect the
three raises which were scheduled to begin retroactive to
December 1 and to cancel the two increases due in Janu-
ary.
Woolard, Aired, and Rolando were all reasonably im-
pressive witnesses, although the degree of impressiveness
varied somewhat. It seems rather unlikely to me, howev-
er, that in explaining to the two employees the reason for
withholding wage increases for Aired and Hall, Woolard
would have said that "they didn't have to give a raise
because it was a potential union shop" (Aired) or "be-
cause it was a potential union job" (Rolando). Neither al-
leged explanation makes any sense in light of the fact
that, as Aired testified, the discussion occurred after the
court of appeals had enforced the bargaining order.
Woolard's version-that since the court' s decision, "it
was the Company's understanding that it would be ille-
gal to give merit raises"-at least conveys a coherent
thought. In addition, it is generally consistent with a stip-
ulation entered into by the parties at hearing that, in the
latter part of 1982, mine 4 warehouse supervisor Dan
Schnaeker told an employee that he would receive no
raise because, after the court decision, "the Company
had said it was illegal to give individual rather than
group raises," and told another employee that two, others
were not receiving raises because "the Company cannot
give raises while negotiations are going on." Since the
5 Woolard also thought that Rolando might have been present, but he
was not sure As indicated above, this conversation was similar to the
one or ones about which Aired and Rolando testified
CONSOLIDATION COAL CO
parties further stipulated that Respondent "did instruct
its mine superintendents to advise employees of the ter-
mination of merit increases and of the reasons for this
termination," it seems probable that Woolard made the
statement to which he testified, similar to one of the ex-
planations given by Schnaeker, rather than the meaning-
less words attributed to him by Alred and Rolando.
While these latter two witnesses did not appear to be
lying, they may have simply misunderstood Woolard.
That they arrived at a similar misunderstanding ("poten-
tial union shop" and "potential union job") could mean
that they attempted to refresh each other's memory prior
to the hearing; but, I am aware, it also could well mean
that their accounts were closer to the truth than Woo-
lard's version. Even if that were so, the words thus at-
tributed to the latter are so lacking in meaningful content
that I cannot see how their communication to the em-
ployees could be deemed coercive or indicative of com-
pany hostility to the Union, as the General Counsel as-
serts.
C. Evidence Bearing Upon the 10(b) Contention
On cross-examination of Roberta Rolando, Respond-
ent's counsel brought out that around January or Febru-
ary 1983 she and Leo Ogilini attended a union meeting at
the union district office at which were present several
union functionaries, including Tony Kujawa, an Interna-
tional board member of the Union, two officials named
Mike Bunton and Steven Lindner, and Union Counsel
Barbara Gumbel. Employee Steven Lewis, of mine 4,
was also present. Rolando testified that during the meet-
ing she tried to bring up the question of the denial of
wage increases to the two warehouse employees at her
mine, and perhaps got as far as saying that three of them
had received raises "and the other two weren't going to
get their raises," but she was interrupted and thereafter
the matter was not pursued. Rolando further testified
that on some other, but unspecified, occasion, while
speaking to International Board Member Kujawa, per-
haps in the hall at the District office, she "mentioned" to
him "about Mr. Woolard's statement about why raises
weren't going to be given."
Steven Lewis, the employee representative on the
union bargaining team for mine 4,6 testified on cross-ex-
amination that he was present at a meeting in Steven
Lindner's office in January 1983; it would appear, from
his testimony that Kujawa, Gumbel, Rolando, and others
were present, that this was the meeting to which Ro-
lando referred, as discussed above. Lewis testified that
"somebody" brought up the fact that raises were not
given and "I think I did mention that who did get raises
from number four and_ who did not and when we got
them '"' More specifically, Lewis thought that he named
Debbie Bardle and John Tucker to the "Union officials,"
one of whom (perhaps attorney Gumbel) said, "Take
down the names and we'll talk to the ones who did or
didn't," or words to that effect.
6 Bargaining for the two units was conducted in separate negotiations
7 The "somebody" was evidently from another mine (elsewhere Lewis
testified he said at the meeting, "[T)hat's what happened at our mine
also"), and most probably was Rolando
547
Notes taken by Lindner (described by union counsel as
an "officer of the District" Union) of a union meeting
held on January 28, 1983, were made available to Re-
spondent at the hearing. The notes reflect, in part, the
following:
Leo O.
1. Doug Alred
A No raises
B. Somebody else won't get
[Undecipherable shorthand entry]
2. Changes in raises
3. Raises supposed [undecipherable] in Dec.
Tony Kujawa testified that he did not "recall" the
issue of "certain employees at [Lewis'] mine not receiv-
ing their annual wage increase" being discussed at the
January 28 meeting, but he did "recall at one particular
meeting at the Du Quoin office where it was brought
up" by Lewis; the best date that he could place on this
meeting was "probably within a month before the Octo-
ber 26 meeting" which will be discussed hereafter.
Kujawa was not asked to repeat precisely what Lewis
had said on the subject at this pre-October 26 meeting.
Lewis testified that, despite the fact that two employ-
ees from the mine 4 bargaining unit were denied their
regular annual increases at least by January 1983, no
mention was made of that fact during the collective-bar-
gaining sessions which were held during that year. The
only time that the subject of merit increases came up,
said Lewis, was at, an October 26, 1983 session, when he
asked Company Director of Industrial Relations B. B.
Hyler Jr. during a discussion of raises, "if I would be
getting my merit raise 'cause I was due next month."8
Hyler said that he could not answer the question and re-
ferred it to mine 4 superintendent Rick. Delloma, who
said he "didn't know if those raises were going to be
given at that time." Kujawa then asked personnel man
Ivan Rahn how the merit raise system worked, and Rahn
explained it to him. Kujawa asked Delloma if Lewis, for
some reason, did not deserve a raise; Respondent's repre-
sentatives, however, according to Lewis, "mostly just si-
destepped and then went on to other discussion and ne-
gotiations." Tony Kujawa substantially confirmed Lewis'
testimony about this meeting, emphasizing that at no
time did Respondent's agents inform the Union that the
two bargaining units had been removed from the merit
raise program since January 1, 1983. Superintendent Del-
loma also testified that the question of a wage increase
for Lewis was raised; that Kujawa inquired about, and
received an explanation of the merit increase system; and
that the company agents did not mention the January I
change.9
6 Lewis had apparently received an increase in November 1982
9 Hyler, while conceding that there had been some discussion of wage
increases and that Lewis had "said I am due an increase in the next
couple of months," denied that Lewis had asked any Respondent repre-
sentative whether he was going to get an increase I credit Lewis on this
point
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early on in his testimony, Kujawa was asked when it
was that "the Union first became aware that the Compa-
ny had ended the merit increases for all the warehouse
employees." His reply was that Lewis had informed him,
in "either late February or early March of 1984," that "a
supervisor had told him that there would be no further
raises given during negotiations ." As noted above, how-
ever, Kujawa subsequently testified on cross-examination
that Lewis had also "brought up the issue of certain em-
ployees at his mine not receiving their annual wage in-
crease" at a meeting "probably within a month before
the October 26 meeting." Furthermore, when asked
whether Lewis had not in fact told him "a year before"
late February or early March 1984 that he "had been
told they were, not going to receive any pay increases
because of negotiations," Kujawa replied, "He may have.
I don't know."
III. DISCUSSION AND CONCLUSIONS
Section 10(b) of the Act provides, in pertinent part,
that "no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of a charge with the Board and the service of a
copy thereof upon the person against whom such charge
is made." The charge in the present case was filed on
March 29, 1984; the 6-month period ordinarily would
begin to run on September 29, 1983,10 and any unfair
labor practices committed prior, to that date could not,
according to the statute, be incorporated into a com-
plaint. The Respondent contends that since the unfair
labor practices alleged in the complaint are said to have
been committed on or about January 1, 1983,11 Section
10(b) prohibits the General Counsel from proceeding on
the present complaint.
The first issue presented is whether Respondent may
assert a 10(b) defense in this case , having neither affirma-
tively pleaded such a contention in its answer to the
complaint nor expressly asserted such a defense at the
hearing. There are cases which would arguably support
a conclusion that, in these circumstances, the defense is
not available to a respondent. See Taft Broadcasting Co.,
264 NLRB 185, 190 (1982); McKesson Drug Co., 257
NLkB 468 fn. 1 (1981). I am inclined to allow the de-
fense, however.
The complaint itself, by its reference in paragraph 7B
to the lack of "notice to the Charging Party prior to
March 1984," clearly anticipates the 10(b) defense. The
Respondent's cross-examination of the General Counsel's
witnesses in an effort to establish the defense was not ob-
jected to as irrelevant by the General Counsel or the
Charging Party. And, on brief, the General Counsel
plainly indicates a belief that the 10(b) argument is
viable; one section of the brief begins with the statement
1° The Board holds that when a charge is served by mail, as in the
present case, "service" as contemplated by the statute is effective upon
the date of mailing, here March 29. Laborers Local 264, 216 NLRI 40
(1975), enfd. 529 F.2d 778 (8th Cir. 1976).
11 Par 7A of the complaint alleges, "On or about January 1, 1983, Re-
spondent discontinued its practice of granting annual pay increases to the
units ." Par. 7B alleges that this act was engaged in "without notice to the
Charging Party prior to March 1984 , and without having afforded the
Charging Party an opportunity to negotiate and bargain."
"As its second line of defense, Respondent is expected to
argue that the complaint in this case is barred by the lim-
itation period contained in Section 10(b) of the Act," and
continues with a legal argument on the point. In these
circumstances, where the issue was litigated sub silentio,
I think the defense may properly be entertained.
Although the statute does not literally so provide, the
Board has long held that the 6-month limitations period
does not begin to run until "the injured party receives
actual or constructive notice" of the conduct complained
of. Drukker Communications, 258 NLRB 734 (1981); Car-
penters Wisconsin River Valley Council, 211 NLRB 222,
227 (1984). As set out above, there is a substantial body
of evidence in this case that as early as January 1983,
and over a year before the filing date of March 29, 1984,
the unit employees had notified responsible union offi-
cials that "changes" had taken place in the wage increase
system.
Employee Lewis, of mine 4, testified that he told
union officials at a meeting in January 1983 that while
three employees had received their anticipated raises,
two had not, and he named them for the officials. Prob-
ably at the same meeting, employee Rolando, of mine 5,
also informed the officials that three of the mine 5 em-
ployees had received the increases and "the other two
weren't going to get their raises." The notes taken by
Union Official Lindner at the January 28 meeting unmis-
takably imply that the Union was told that an existing
working condition had been altered; phrases like "no
raises, "changes in raises," "raises supposed [undeciphera-
ble] in Dec.," can scarcely mean anything else (emphasis
added). In addition, at a time uncertain, but, I suspect,
likely before September 29, 1983, Rolando concededly
indicated to Union Representative Kujawa the breadth of
the changes, by relating to him "Mr. Woolard's state-
ment about why raises weren't going to be given." 12
It seems to me, accordingly, 'that the evidence adduced
by the Respondent requires a conclusion that the Union
had received adequate notice of a unilateral change in
the terms of employment by no later than January 1983.
The General Counsel cites Allied Products Corp., 218
NLRB 1246 (1975), remanded 548 F.2d 644 (6th Cir.),
230 NLRB 858 (on remand), enfd. 629 F.2d 1167 (6th
Cir.), for the proposition that "isolated complaints from a
few employees" do not serve to put a union on notice of
a change in merit pay. The facts in the two cases, how-
ever, differ materially.1 g
13 Although the time was never pinned down, it seems likely to me
that Rolando's hallway conversation with Kujawa in which she repeated
to him Woolard's statement , a communication which plainly notified
Kujawa that there had been a change in the existing terms, very probably
occurred soon after Rolando heard Woolard make the statement. Ro-
lando attended many union meetings in 1983, and I feel reasonably confi-
dent that she would not have suppressed until late in 1983 the statement
made by Woolard several months before.
13 In Allied Products Corp., one employee told a union official that she
had been passed over a few weeks earlier for her merit review in Febru-
ary. The charge asserting that the merit raise system had been unilateral-
ly suspended was not filed until October, the Union having specifically
been told in May, for the first time, that the practice of granting merit
increases had been suspended in February . It is of interest to note that
the Board actually held in its first decision that the single complaint in
Continued
CONSOLIDATION COAL CO.
The evidence relating to the bargaining session of Oc-
tober 26, 1983, arguably does not dovetail neatly with
the conclusion that the Union was aware of the change
of policy effected on January 1 of that year. Why, the
General Counsel asks, would Lewis have inquired about
his raise if it had been made clear that the program no
longer applied to these employees? One answer might be
that Lewis was simply baiting, the Respondent's bargain-
ers. As noted earlier, the parties have stipulated that the
Respondent "instruct[ed] its mine superintendents to
advise employees of the termination of merit increases
and of the reasons for this termination," and the testimo-
ny and the other stipulations discussed above indicate
that this instruction was obeyed. That being the case,
there can be little question that Lewis, the employee
committeeman, was told or soon learned that a general
change in the policy had occurred. That change would
not, however, necessarily have prevented a return to the
former policy, and that possibility could have been what
prompted Lewis' question on October 26.
The General Counsel finds in the "duplicitous" behav-
ior of Respondent' s agents at the October 26 session
some basis for an inference that the Union did not know
of the change in policy. It certainly does appear that Re-
spondent's negotiators were guarded at this meeting and
made no effort to clarify that the merit system no longer
applied to the unit employees. They may have had their
own strategic reasons for that. I would find it hard to be-
lieve that the company negotiators did not fully assume
that the Union knew all about the change in policy; that
would have been the natural consequence of having noti-
fied all 10 employees "of the termination of merit in-
creases and of the reasons for this termination," as the
superintendents, according to the stipulation, had been
told to do. Although such direct dealing with employees
is the worst kind of labor relations, it is certainly not a
maneuver calculated to keep anyone, including the
Union, in the dark about the policy change, and I cannot
imagine that Respondent's bargainers did not think that
the Union was completely aware of the change.
If the Union was aware of the change, it may be asked,
why did it wait until March 1984 to file a charge? More
than one answer suggests itself. It could be that the
Union viewed that approach as inimical to the bargaining
which the parties undertook for the first time in 1983. It
could be, as the Respondent charges on brief, that the
Union was simply "negligent." What is difficult to accept
is that, as he asserts, Kujawa found out something from
Lewis in February or March 1984 that he did not know
at an earlier time.
February had been sufficient to commence the 10(b) period. Although it
did not e),pressly so state in the first decision , the Board said on remand,
"Contrary to the Board, the court of appeals found that employee Moore's
statement to Union Representative DeMott on March 18 that she had not
received her scheduled merit wage review was insufficient to apprise him
that `there had been a policy decision affecting all employees to abandon
the existing practice "' 230 NLRB at 859, emphasis added See also
Southeastern Michigan Gas Co., 198 NLRB 1221 fn. 2 (1972), holding that
the 10(b) period began to run when the discontinuance of benefits
"became evident," i e , when one employee was due for a performance
review and a wage increase and received neither, and when the employer
did not purchase boots for the employees in a particular month contrary
to his established practice
549
The sequence of Kujawa's repeated exposures to the
matter of the termination of the pay raises should be con-
sidered.14 At a meeting in January 1983, both Lewis and
Rolando told Kujawa and other union representatives
that a total of four employees had been denied in-
creases.15 At some other time, probably right around
early 1983, Rolando also told Kujawa "about Mr. Woo-
lard's statement about why raises weren't going to be
given." Kujawa further recalled that perhaps "within the
month" before the October 26 meeting, Lewis had
brought up the issue of the denial of annual raises.
Despite that background, and despite the fact that the
subject of merit increases was thereafter raised by Lewis
and discussed at the October 26 negotiating session,
Kujawa assertedly still did not know, until Lewis told
him in February or March 1984, that "a supervisor had
told him that there would be no further raises given
during negotiations." Is it possible that the subject came
up three times in 1983 with Lewis and Kujawa present
(with Lewis bringing up the problem on all three occa-
sions), but that on not one of these occasions did Lewis
impart to Kujawa the information which had surely been
in his ken for so long a time? Furthermore, what was it
that led Lewis to raise the issue again in February or
March 1984, this time adding the theretofore omitted
fact about what the supervisor had said? 16 I find no sat-
isfactory answers to these questions either in the record
or in the realm of speculation.
Accordingly, it is my opinion that responsible union
officials were conversant with sufficient information
about the change in the pay practice prior to the 10(b)
period so as not to permit tolling of that limitation.
The foregoing conclusion does not, however, necessar-
ily end the inquiry. Some Board cases -might be thought
to authorize a finding that at least the failure to grant
merit increases within the 10(b) period (September 29,
1983-March 29, 1984) can be found violative, even
though the tardiness of the charge precludes finding un-
lawful the earlier denials of increases.17
Consideration of some of the precedents is in order.
General Motors Acceptance Corp., 196 NLRB 137 (1972),
involved an employer which, a few months before the
union's certification in November 1968, suspended an ex-
isting program of merit increases . The charge was filed
on June 10, 1970, making December 10, 1969, the com-
mencement of the 10(b) period. A Board majority con-
cluded that the denial of merit increases within the 6-
month period could be held to be "separate and distinct
acts" violative of Section 8(a)(1); this holding was based
34 I put aside here his statement that Lewis "may have" informed him
as early as February or March 1983 that Lewis "had been told they were
not going to receive any pay increases because of negotiations"; as indi-
cated above , Kujawa went on to say , "I don't know "
15 Kujawa did not recall this, but Lewis and Rolando so testified.
i i Lewis did not testify about his conversations wil h Kujawa
' I recognize that the complaint only alleges a violation relating to
the inception of the elimination of the merit raise program , and the Gen-
eral Counsel has not argued on brief for the kind of partial relief here
considered It should be noted, however, that Respondent appears to
accept that the issue of a possible "continuing" violation is viable, argu-
ing on brief that the violation cannot be so characterized and that Gener-
al Motors Acceptance Corp., discussed infra, is distinguishable Since Re-
spondent has raised the possibility , it seems worth discussing.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the particular context of those denials, including, inter
alia, the fact that the employer continued to review the
employees after the suspension of the program while im-
plying that the advent of the union prohibited the grant-
ing of merit raises.' 8
Thereafter, in Farmingdale Iron Works, 249 NLRB 98
(1980), where one issue involved the longstanding failure
of an employer to make contributions to trust funds as
required by his collective-bargaining agreement, the
Board held that each default constituted a "separate and
distinct" violation of the Act which could be remedied
beginning with the commencement of the 10(b) period.
In so holding, however, the Board also seemed to
expand the scope 'of General Motors Acceptance Corp.
with respect to the suspension of merit raise programs
(249 NLRB at 99 supra):
The Board previously has considered the applica-
tion of Section 10(b) to the unilateral discontinu-
ance, in the face of a bargaining obligation, of bene-
fits which formerly were granted on a periodic
basis. Thus, the Board has held that each denial of a
merit increase to employees whose evaluations pre-
viously would have entitled them to such an in-
crease constituted a separate and distinct violation
of the Act which could be remedied upon the filing
of a charge within 6 months after the denial of that
particular increase.5 The Board further has held
that the unilateral decision to discontinue making
benefit fund contributions, like the failure to make
periodic wage increases, constitutes a violation of
Section 8(a)(5) of the Acts Accordingly, we con-
clude that each failure to make the contractually re-
quired monthly benefit fund payments constituted a
separate and distinct violation of Respondent bar-
gaining obligation and, therefore, that any benefit
fund payment due after July 16, 1977, is subject to
the Board's remedial powers.? We shall modify the
Administrative Law Judge's recommended Order
accordingly.
5 General Motors Acceptance Corporation, 196 NLRB 137 (1972),
enfd. 476 F.2d 850 (1st Cir 1973). See also Allied Products Corpora-
tion, Richard Brothers Division, 218 NLRB 1246 (1975) In both
cases, merit wage reviews and increases were suspended during
initial bargaining with a newly certified union. It is well settled
that an employer is obligated to maintain the status quo during
both initial negotiations and, as here, the term of an existing collec-
tive-bargaining agreement Electri-Flex Company, 228 NLRB 847
(1977), enfd 570 F 2d 1327 (7th Cir 1978), cert denied, 439 U S
911 (1978)
6 Peerless Roofing Co., Ltd., 247 NLRB No 72 (1980), Wayne's
Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, 233 NLRB 260
(1976) (employer obligated to continue making pension and health
and welfare contributions even after the expiration of the collec-
tive-bargaining agreement providing the basis for such contribu-
tions)
7 Cf. Continental Oil Company, 194 NLRB 126 (1971) (adher-
ence to method of allocating overtime established more than 6
18 The Court of Appeals for the First Circuit agreed with the majori-
ty, given the context and the manner in which the withholding of the
merit increases was emphasized during the 10(b) period , and distinguish-
ing Bonwit Teller, 96 NLRB 608 (1951), "where the employer committed
no unlawful conduct during the limitations period." 476 F.2d 850, 853-
554 in 7
months before filing of complaint does not constitute a unilateral
change within the 10(b) period and, therefore, is not a continuing
violation) See also Bonwit Teller, Inc, 96 NLRB 608 (1951) (no
complaint may issue based upon bare presumption of continuity of
an unlawful practice-suspension of wage reviews-which oc-
curred prior to the 6-month period)
In a recent case, Abbey Medical, 264 NLRB 969 (1982),
which dealt with an employer's failure to make fringe
benefit contributions for striker replacements, the admin-
istrative law judge quoted, apparently with the Board's
approval, the foregoing language from Farmingdale Iron
Works.
It could be argued that the Board's expansive reading
of General Motors Acceptance in Farmingdale and again in
Abbey means that the failure to give merit raises, make
benefit contributions, or honor any similar obligations
within the 10(b) period may be found violative even
though earlier manifestations of the same conduct are
immune from challenge under Section 10(b). Insofar as
the failure to grant merit raises is concerned, that being
the only issue before me for decision, such a result seems
inconsistent with the principles enunciated in Machinists
Local 1424 v. NLRB, 362 U.S. 411 (1959).
In order to prove a violation of Section 8(a)(5),in the
present circumstances, the General Counsel must show
that after the first set of merit increases were denied,
conduct which I find to be time-barred, Respondent, at
some time after September 29, 1983, (1) changed an exist-
ing term or condition of employment (2) without satisfy-
ing the bargaining obligation imposed by Section 8(a)(5).
Concerning (1), it is clear that subsequent to the initial
refusals in December 1982-January 1983, and prior to
the hearing, Respondent again denied merit increases to
employees. In order to show that these denials were un-
lawful, however, it must be established that they contra-
vened an existing condition of employment, and that is
where we bump into Machinists Local 1424, supra. For,
on September 29, 1983, the existing employment condi-
tion with respect to annual merit raises was that Re-
spondent did not give them out, and if, in the following
November or December, Respondent failed to award
such increases, it would be acting consistently with the
status quo as of the beginning of the 10(b) period.
The only way in which the General Counsel could
conceivably establish any post-September 29, 1983 deni-
als to be unlawful would be to prove that the original
elimination of the program on January 1, 1983, was also
accomplished without complying with statutory bargain-
ing requirements and hence, arguably, void. But such an
approach appears to require what Machinists Local 1424
prohibits: finding unlawful "conduct occurring within
the limitations period [which] can be charged to be an
unfair labor practice only through reliance on an earlier
unfair labor practice." 362 U.S. at 416-417. As in Ma-
cl$inists Local 1424, where the Court would not permit
predicating an unfair labor practice finding upon the en-
forcement of an unlawfully executed bargaining agree-
ment where the execution predated the 10(b) period,
saying that to allow a time-barred event to be so used
"in effect results in reviving a legally defunct unfair
labor practice," 362 U.S. at 417, so'here the unlawfulness
of a failure to grant merit increases in late 1983 could
CONSOLIDATION COAL CO. 551
only be shown by demonstrating that the existing condi-
tion of employment at that time-no merit raises-had
been itself illegally promulgated ; but that would require
an examination of the legality of conduct which oc-
curred beyond the limitations period.
Thus, it appears to me that the dicta regarding the
treatment of merit increases in Farmingdale and Abbey,
supra , cannot, in the light of the meaning infused into
Section 10(b) by Machinists Local 1424, be thought to
support a finding that Respondent violated Section
8(a)(5) here by its failure to grant merit increases within
the 10(b) period. Other Board cases support this conclu-
sion ; see Continental Oil Co., supra , 194 NLRB at 129
(1972), cited in the Farmingdale case; Dow Chemical Co,
216 NLRB 82, 85 (1975).
For the foregoing reasons, I am also constrained to
recommend dismissal of the 8(a)(3) allegation based on
the same conduct . 19 The fact that 4 of the 10 employees
in the 2 bargaining units had not received their custom-
ary increases was made known to the Union by the end
of January, as was the fact that, in the words of
Lindner's notes, there had been "changes in raises." It
appears to me that this information was adequate to trig-
ger the running of the limitations period for purposes of
Section 8(a)(3), just as would the bare knowledge of a
discharge , a demotion, or any other form of adverse
action . The "alleged unlawful act," to apply the termi-
nology recently employed by the Board in Postal Service
Marina Center, 271 NLRB 397 (1984), was the Respond-
ent's decision to terminate the applicability of the merit
raise program to these two groups of employees ; it is im-
proper, the Board said in the cited case, to toll the run-
ning of the limitations period until the "consequences [of
19 Sec 8(a)(3) makes it unlawful for an employer "by discrimination
... to encourage or discourage membership in any labor organization."
the alleged unlawful act] become effective ." According-
ly, the Union 's knowledge of the denials of raises and of
"changes" in the system in January reasonably put it on
notice at that time that a potentially charge-worthy of-
fense had occurred ; and any subsequent denials of in-
creases simply flowed from , and were the "conse-
quences" of, the January action.
On this analysis, I feel compelled to recommend dis-
missal of the present complaint . I am, frankly , displeased
to do so, because I otherwise agree with the General
Counsel that the 8 (a)(3) and (5) violations are patent; like
the Board in Teamsters Local 27 (Jerome Amos), 209
NLRB 883, 884 (1974), I "would have found the viola-
tions alleged in this case if a timely charge had been
filed." But, in my view , the charge was untimely, and
the 10(b) limitation therefore invalidates the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Consolidation Coal Company, is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Union, United Mine Workers of Amer-
ica is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent cannot be held to have committed
the unfair labor practices alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, I make the following recommendedzo
ORDER
The complaint in Case 14-CA-17350 is dismissed.
9o If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.