Decker Coal Co.

National Labor Relations Board - Board Decisions

Feb 19, 1991

301 N.L.R.B. 729 (N.L.R.B. 1991)

729
301 NLRB No. 108
DECKER COAL CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings. We note that
the judge mistakenly referred in sec. III,A of his decision to ‘‘June of 1989’’
as the date of the Respondent’s unlawful refusal to reinstate unfair labor prac-
tice strikers. Later in the decision, he correctly identified that date as June
1988.
2 We affirm the judge’s conclusion that the Respondent violated Sec. 8(a)(5)
by unilaterally implementing its last and final offer on October 1, 1987, prior
to a genuine impasse in bargaining. We disagree, however, with the judge’s
conclusion that the Respondent’s declaration of impasse on September 30 con-
stituted an independent 8(a)(5) violation. Initially, we note the absence of evi-
dence that any of the Respondent’s officials literally declared impasse, al-
though the Respondent concedes that it effectively did so by making a last
and final offer. Even had there been an express declaration of impasse, the
circumstances of this case would not warrant finding a violation. ‘‘Although
some statements by negotiating parties may show an intention not to bargain
in good faith, the Board is especially careful not to throw back in a party’s
face remarks made in the give-and-take atmosphere of collective bargaining.’’
Logemann Bros. Co., 298 NLRB 1018 (1990). Accordingly, we have modified
the judge’s recommended Order and attached a substitute notice deleting ref-
erence to the declaration of impasse.
Member Cracraft agrees with the judge that this case is factually distin-
guishable from Storer Communications, 297 NLRB 296 (1989), and Depend-
able Maintenance Co., 274 NLRB 216 (1985), and 276 NLRB 27 (1985). She
adheres to her dissent in Storer and she does not pass on whether she would
have reached the same result in Dependable Maintenance.
We find it unnecessary to rely on the judge’s reasoning to the extent it may
be read to suggest that in no event can there be impasse where information
requests are outstanding but we agree on the particular facts of this case that
no such impasse was established.
Decker Coal Company and United Mine Workers
of America. Cases 27–CA–10259 and 27–CA–
10259–3
February 19, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 21, 1990, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a cross-exception and a
brief answering the exceptions and in support of the
cross-exception. The Charging Party filed cross-excep-
tions, a supporting brief, and an answering brief. The
Respondent filed an answering brief to the General
Counsel’s and Charging Party’s cross-exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Deck-
er Coal Company, Big Horn County, Montana, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Refusing and failing to bargain in good faith
with United Mine Workers of America—as the exclu-
sive representative of employees in the appropriate unit
of employees at all pits of Decker Coal Company now
or hereafter added, who are engaged in production and
maintenance at the Decker, Montana coal mine, ex-
cluding guards, watchmen, office clerical employees,
engineering employees foremen and supervisors as de-
fined in the Act—by unilaterally implementing last and
final contract offers without having reached a valid im-
passe, and by refusing to process grievances because
of the expiration of a collective-bargaining contract.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse and fail to bargain in good
faith with United Mine Workers of America, as the ex-
clusive representative of employees in the appropriate
bargaining unit described below, by unilaterally imple-
menting a last and final contract offer without having
reached a valid impasse. The appropriate unit is:
Employees at all pits of Decker Coal Company
now or hereafter added, who are engaged in pro-
duction and maintenance at the Decker, Montana,
coal mine, excluding guards, watchmen, office
clerical employees, engineering employees, fore-
men and supervisors as defined in the Act,
WE WILL NOT refuse to process grievances with
United Mine Workers of America because a collective-
bargaining agreement with that union has expired.
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT fail and refuse to reinstate unfair
labor practice strikers from whom we have received
unconditional offers to return to work, including:
Jim Aksamit Larry Kobielusz
Tom Allen Darryl Kurtz
Bob Allred Mary Lance
Duane Anderson Gay Laya
Ron Anderson Bobby Legerski
Ken Ballek Madonna Lyons
George Batt Raynard McKenzie
Larry Baumgartner Bud Madron
Marshal Bears Bob Marchant
Art Benton Dan Mest
Bill Biesterfeld Brent Moore
Bruce Bisbee Bill Morgareidge
Dave Blankenship Bruce Morrill
Bob Bond Clayton Morris
Leonard Bull Ken Mortensen
Dwight Castle Vic Mortensen
Buddy Chaffee Jack Murray
Bill Clark Jerry Noecker
Lawrence Conner Jerry O’Daniels
Pete Crook Jim Palser
Roger Duin Ernie Roberts
George Eisele Brad Robinson
John Eychanor Ron Rosenlund
Dalton Gaynor Jim Schutte
John Gazdik Merle Smith
Richard Glantz Tom Smith
Ken Greer Dennis Songer
Rick Hanslip Gene Songer
Madge Herden Derald Stiles
Dick Herman Ray Swanby
Al Herrera George Taylor
Gary Hinz Gerry Thompson
Rod Howell Larry Tibbets
Dale Jacobson Steve Torbet
Dan Johnson Rodger Wagner
Greg Johnston Leroy Westika
Marc Ketcham Dick Williams
Jim Kibler Karen Woodard
Gary King Jerry Woodward
Alan Kobielusz Don Ziegler
WE WILL NOT tell unfair labor practice strikers that
they will be permanently replaced if they do not report
for work by a certain time.
WE WILL NOT in any like or related manner interfere
with any of your rights set forth above which are guar-
anteed by the National Labor Relations Act.
WE WILL bargain collectively in good faith with
United Mine Workers of America, as the exclusive
representative of employees in the bargaining unit set
forth above, and embody any understanding reached in
a signed agreement.
WE WILL restore employment terms to the levels set
forth in our 1986–1987 collective-bargaining contract
with United Mine Workers of America and maintain
them until such time as we have bargained in good
faith and reached agreement or, alternatively, until a
valid impasse is reached.
WE WILL make whole all employees in the above-
described appropriate bargaining unit for any losses
they may have sustained by reason of our implementa-
tion of unilateral changes in employment terms on Oc-
tober 1, 1987.
WE WILL offer to each of the above-named employ-
ees immediate and full reinstatement to the positions to
which he/she would have been reinstated had their of-
fers to return to work not been rejected, dismissing, if
necessary, anyone who may be occupying the positions
to which they are entitled or, if any of those positions
no longer exists, to a substantially equivalent position,
without prejudice to his/her seniority or other rights
and privileges, and WE WILL make them whole, with
interest, for any loss of pay they may have suffered as
a result of our refusal to reinstate them.
DECKER COAL COMPANY
Michael J. Belo and Michael T. Pennington, for the General
Counsel.
Warren L. Tomlinson, Jeffrey T. Johnson, and Sandra R.
Goldman (Holland & Hart), on brief, of Denver, Colo-
rado, appearing for the Respondent.
John L. Quinn (Longshore, Nakamura & Quinn), of Bir-
mingham, Alabama, and Brad Rayson, of Denver, Colo-
rado, appearing for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Denver, Colorado, on March 28 through
31 and April 11 through 14, 1989. Ultimately, the record was
closed by Order on July 21, 1989. On September 22, 1988,
the Regional Director for Region 27 of the National Labor
Relations Board (the Board), issued an order consolidating
cases and consolidated complaint and notice of hearing,
amended on March 16, 1989, based on unfair labor practice
charges filed in Case 27–CA–10259 on October 9, 1987, and
in Case 27–CA–10259–3 on March 21, 1988, alleging viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, § 29 U.S.C. 151 et seq. (the Act). All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based on the entire record, on the briefs that were
filed by the parties, and on my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Decker Coal Company (Respondent),
has been a joint venture between Kiewit Mining Group, Inc.
and Western Minerals, Inc., a subsidiary of NERCO Coal
Co., with an office and place of business in Big Horn Coun-
731DECKER COAL CO.
1 They reaffirmed that choice in a second election held in 1985, as a result
of a petition filed by PMWA. 2 Unless stated otherwise, all dates in this case occurred during that year.
ty, Montana, where it engages in the operation of a surface
coal mine. In the course and conduct of that operation, Re-
spondent annually sells and ships goods, materials, and serv-
ices valued in excess of $50,000 directly to points and places
outside the State of Montana. Therefore, I conclude, as ad-
mitted in the answer, that at all times material, Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, United Mine Workers of America
(the Union) has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
This case presents issues involving the duty to supply in-
formation requested by a bargaining agent and of the effect
of that duty on the course of negotiating, and on the nature
of a strike occurring after an impasse in bargaining was as-
serted at a time when not all such requested information had
been supplied.
Respondent operates a two-pit mine—East Decker and, ap-
proximately 3 miles away, West Decker—located about 6
miles north of the Montana-Wyoming border. It is a joint
venture of Kiewit Mining Group (KMG) and Western Min-
erals, Inc., a subsidiary of NERCO Coal Co., Inc. which, in
turn, is a subsidiary of Pacific Corporation. KMG is Re-
spondent’s managing partner and, like Western Minerals, is
a subsidiary—in its case a wholly owned subsidiary of Peter
Kiewit & Sons, Inc. (PKS). PKS is a holding company
which primarily conducts operations in the construction in-
dustry. However, in addition to Respondent, it also partici-
pates in three other coal mining operations: Big Horn Coal
Company, a wholly owned subsidiary that has one mine lo-
cated approximately 6 miles north of Sheridan, Wyoming;
Rosebud Coal Company, a wholly owned subsidiary located
near Hanna, Wyoming, approximately 300 miles from Sheri-
dan; and, Black Butte Coal Company, a joint venture in
which KMG is a 50-percent joint venturer, located approxi-
mately 350–400 miles from Sheridan. Employees at Black
Butte are unrepresented. Those at Rosebud are represented
by International Union of Operating Engineers Local 800.
The Union represents employees at Big Horn. It also rep-
resents Respondent’s employees in an appropriate unit of all
employees at pits of Respondent now or hereafter added,
who are engaged in production and maintenance at the Deck-
er, Montana coal mine, excluding guards, watchmen, office
clerical employees, engineering employees, foremen, and su-
pervisors as defined in the Act.
However, the Union has not always represented Respond-
ent’s employees. Before 1983, they were represented by Pro-
gressive Mine Workers of America (PMWA). In a represen-
tation election conducted during that year, the employees
elected the Union, rather than PMWA, as their collective-bar-
gaining agent.1 From September 1983, the Union and Re-
spondent engaged in over 20 negotiating sessions in an effort
to reach agreement on the terms for a collective-bargaining
contract. However, they were unable to reach final agreement
until September 1986.
Three aspects of that agreement are significant to the
events that occurred in this case. First, it provided for a term
of only 1 year, being effective only through September 30,
1987.2 Second, the Union asserted during the negotiations
that it did not want to make concessions that would con-
stitute ‘‘give-backs.’’ However, along with some ‘‘give and
take’’ on other proposals, the Union ultimately did agree spe-
cifically to a medical coverage provision that represented a
substantial change and, Respondent concurred, could be char-
acterized as a ‘‘give-back.’’ Third, two changes were nego-
tiated in the employee pension program: benefit accruals for
participants between ages 60 and 65 were increased from a
one-half to a full benefit and, second, there was a change
from cotrustees—one designated by Respondent the other by
the employees’ bargaining agent—to a single trustee chosen
by Respondent.
These pension plan changes led to certain consequences
apparently not anticipated by the parties as they were negoti-
ating. Respondent’s pension plans are regulated under the
Employee Retirement Income Security Act of 1974, 88 Stat.
829, as amended, 29 U.S.C. § 1001 et seq. (ERISA). That
legislation requires that there be a plan agreement, setting
forth the terms and conditions of the pension plan; a trust
agreement, establishing the financial mechanism for investing
the money set aside under the plan and describing the spe-
cific authority and obligations of the trustee(s); and, a sum-
mary plan description that can be distributed to plan partici-
pants, providing a concise summary of eligibility and bene-
fits, as well as legal resources available to plan participants.
These documents last had been prepared for Respondent’s
plan in 1983, when PMWA had been representing the em-
ployees. Accordingly, they not only provided for a cotrustee,
but they referred throughout to PMWA as the employees’
bargaining agent. Largely undisputed expert testimony estab-
lished that, prior to commencement of negotiations in the
summer, ERISA imposed no obligation on Respondent to
have the plan, trust, and SPD redrafted to reflect the changes
negotiated in 1986.
Furthermore, it is readily understandable that Respondent
would not eagerly have embraced the prospect of redrafting
them. For, in addition to amending the documents to change
from a cotrustee to a single trustee, they also would have to
be amended to delete their numerous references to PMWA.
As Respondent’s own expert—testifying at a point in time
after the plan, trust and SPD, in fact, had been redrafted—
explained:
What you had here, frankly, were changes which, al-
though largely ministerial in nature, were multitudinous.
They went through all—certainly all of the trust. The
trust was written—rewritten almost in its entirety.
The plan was rewritten substantially. There are little
things—the kind of gotcha’s because of the frequent
references to—to the responsibilities of the—of the dual
trustees, and now the transfer to a single trustee. It
takes time to do that kind of drafting.
Quite frankly, you’re forced to rely on experts, if
you [like] technocrats, if you don’t like the word ex-
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 So called because it originated in the Union’s negotiations with Island
Creek Coal Company, a West Virginia coal company.
perts; bureaucrats, if—if technocrats is too—too com-
plimentary. You’re forced to rely [o]n people who spe-
cialize in ‘‘this and thats,’’ and they have lots of ‘‘this
and thats’’ to work on.
Similarly, the single trustee, John Ziegenbein, testified con-
cerning the changes,
it was not a complex task, but it was a time-
consumming [sic] task to make all of the—to delete all
of the appropriate references, but only delete what was
necessary and to make the document internally con-
sistent. . . .
. . . .
I did not view them as unimportant, but the nature
of the changes was primarily administerial. They af-
fected the administrative areas of the pension plan and
the trust document. I wouldn’t call them ‘‘merely min-
isterial,’’ and I would not characterize them as
‘‘minor,’’ or ‘‘unimportant.’’
Prior to commencing negotiations in the summer for a new
contract with Respondent, the Union attempted to negotiate
a new contract for employees at Big Horn. The then-existing
contract with Big Horn had been agreed on by March 23,
1984, succeeding a contract that had expired only the pre-
vious day. However, negotiations in 1987 did not progress as
smoothly at Big Horn as they had in 1984. Rather, by the
contract’s terminal date, the parties were not even close to
agreement. While they agreed to extend the contract term
until June 1, added negotiations did not generate agreement
by that date. On June 4, Gary Houston, KMG’s vice presi-
dent of labor relations and the principal negotiator for Big
Horn, sent a letter to the Union, outlining his last and final
offer and, also, stating that he intended to implement that
offer if he did not hear from the Union by June 10. The
Union did request a meeting which was held on June 29, but
no meaningful progress was made. Big Horn implemented its
last and final offer on July 1.
Three aspects of the Big Horn negotiations are significant
to the negotiations that occurred in this case between the
Union and Respondent. First, the 1984 contract had provided
for a modest increase in pension benefits. Pursuant to
ERISA, the benefit changes were embodied in a draft revi-
sion of the plan and trust agreement. When those drafts were
submitted to the Union for approval, it objected that certain
items should be clarified. Houston testified that he had ac-
cepted those suggestions and the amendments ultimately
were typed, executed, and filed by March 2, 1985, within a
year of the date on which the parties had reached agreement
on the 1984 contract’s terms. Second, Big Horn’s employees
continued working in 1987, despite the breakdown in nego-
tiations and implementation of Houston’s last and final offer.
Finally, during those negotiations, the Union had proposed a
job security plan, called the Island Creek proposal,3 whereby
laid-off employees would be accorded preferential hiring and
transfer rights at other mines operated by PKS, its subsidi-
aries, and subcontractors. When it became apparent that Big
Horn would not agree to this proposal, it was modified by
the Union so that preferential hiring rights would extend to
Rosebud, Black Butte, and Respondent, in addition to lease-
holds controlled by those three entities and by Big Horn.
However, when the negotiations on June 29 concluded, Big
Horn was willing to agree to preferential hiring and transfer
rights only at leaseholds that it controlled.
In the instant case, Bruce Boyens, the Union’s chief nego-
tiator for negotiations involving both Big Horn and Respond-
ent, sent a letter to Houston, also the principal negotiator for
Respondent, requesting information similar to that requested
earlier of Big Horn in anticipation of the negotiations with
that coal company. Among the items sought were five that
pertained to pensions, including:
24. The current ERISA Plan document for the pen-
sion plan including any and all amendments of [sic]
modifications.
25. Provide copies of all benefit summary plan de-
scriptions covering [Union] represented employees and
retirees in this bargaining unit.
On receiving this request, Respondent did not contest the rel-
evancy of any of the information sought by it, but instead
made efforts to provide that information. Thus, as summer
progressed, Respondent accumulated and transmitted some of
the requested information to the Union on July 18, more on
August 3, and still additional information on August 11.
Among the information sent on the latter date was the
amended and restated pension plan for Respondent and
PMWA. David S. Blitzstein, at the time research economist
for the Union, testified that on inspection of the pension-re-
lated information provided by Respondent, he discovered
several items that he believed should be corrected. Thus, he
felt that the program was grossly overfunded. He viewed as
probably illegal the cap that the program contained for em-
ployees once they reached 70 years of age. Finally, he con-
sidered the submitted plan to be stale, because it contained
references to PMWA and made no reference to any of the
changes embodied in the then-expiring 1986 contract.
As described in greater detail in section III,B,1, infra,
throughout negotiations with Respondent, the Union sought
production of a pension plan and trust agreement incor-
porating the 1986 changes, asserting that such documents
were needed to bargain intelligently and, also, that their ab-
sence probably violated ERISA. However, in contrast to the
nature of the 1984 Big Horn pension changes that had to be
incorporated immediately in a revised plan and trust agree-
ment under ERISA, as pointed out above, Respondent had
not been obligated by that legislation to prepare a revised
plan and trust agreement by the time that negotiations had
commenced with the Union on August 4. Nevertheless, once
the Union made plain that it needed an updated plan and
trust agreement to negotiate properly, Respondent undertook
their preparation. However, they were not completed until
mid-November.
Meanwhile, by September 18 the Union felt that there was
a sufficient objective basis for believing that an alter ego or
single-employer relationship existed between Respondent and
other entities, particularly PKS, to request that certain busi-
ness information pertaining to those firms be produced. It
made such a request on that date. By September 30, Re-
spondent had produced most of the requested items, although
some of them had not been answered fully, to the Union’s
733DECKER COAL CO.
4 It is not alleged that the strike was caused or perpetuated by the 4-month
refusal to process grievances.
satisfaction, by that date. However, the remaining informa-
tion was supplied during the months of October and Novem-
ber.
On September 30, Respondent made a last and final offer,
after which Houston departed from the negotiating session
then in progress. He testified that, by that time, he had be-
lieved that the parties were at impasse and the Union con-
strued his departure as a reflection of that belief, although it
disagreed that, in fact, an impasse had been reached. During
an executive board meeting that followed, a decision was
made to commence striking at 12:01 a.m. on October 1. Fol-
lowing commencement of the strike, Respondent imple-
mented the terms of its last and final offer, refused to proc-
ess grievances filed under the expired contract for a 4-month
period, notified striking employees that they must report to
work by October 12 or they would be subject to permanent
replacement, and, ultimately, refused to reinstate 80 strikers,
whose reinstatement had been sought by the Union, on the
grounds that their positions were then occupied by permanent
replacements, although Respondent did place their names on
a preferential hiring list.
The General Counsel alleges that Respondent violated the
Act by the 4-month hiatus in grievance processing; by the
delay in submitting the pension information requested on
June 22; by not affording the Union sufficient time to exam-
ine the so-called alter ego/single employer information that
had been provided in response to the Union’s September 18
request; by declaring an impasse and implementing the terms
of its last and final offer at a time when relevant information
had not been supplied and when there had been insufficient
time to examine the information that had been provided; and,
by refusing to reinstate the 80 strikers because, alleges the
General Counsel, their strike had been caused by Respond-
ent’s unlawful declaration of impasse and had been perpet-
uated by Respondent’s unlawful implementation of the terms
of its last and final offer.4 Respondent agrees that it did vio-
late the Act, and I so conclude without further discussion, by
refusing to process grievances for a 4-month period after ex-
piration of the 1986–1987 contract. However, it disputes the
remaining allegations, arguing that, given the number of
issues still in dispute on September 30, the impasse would
have occurred even had the Union possessed all of the infor-
mation it had requested and even had it received ample time
to examine and to evaluate it. Moreover, argues Respondent,
the strike was called to protest the absence of agreement on
the terms for a contract, with the lack of information being
but an afterthought designed to secure statutory protection
for strikers to which they are not entitled under the facts of
this case.
For the reasons set forth more fully, infra, I conclude that
Respondent did not violate the Act by the delay that occurred
in submitting the pension plan requested in June. The evi-
dence establishes no more than that the Union had sought
certain information based on its misinterpretation of ERISA’s
requirements and, in turn, that Respondent did not under-
stand the information truly being sought by that request until
it was clarified after negotiations actually had begun. Given
the complexity of preparing a revised plan, it cannot be con-
cluded that a delay until mid-November, for submitting the
revised document, was unreasonably long and, accordingly,
unlawful. Similarly, all the information sought in the Sep-
tember 18 letter to Respondent had been provided within 2
months of the date of that letter. The record is devoid of any
evidence that Respondent delayed unreasonably in providing
it.
Conversely, a preponderance of the evidence does support
the conclusion that Respondent violated the Act by consid-
ering negotiations at impasse on September 30 and, con-
sistent with that view, by making its last and final offer on
that date. For, by that point in time, it had not yet provided
all the relevant information requested by the Union and, fur-
ther, had not allowed the Union a reasonable time to exam-
ine the recently supplied alter ego/single-employer informa-
tion. Pensions and employment security are mandatory bar-
gaining subjects. A roadblock to bargaining about those sub-
jects existed because of the absence of requested relevant in-
formation pertaining to them. Moreover, given the inherent
interrelationship between the various subjects of bargaining,
it would be an exercise in speculation, rather than adjudica-
tion, to try to reconstruct the course of negotiations based on
an assumption that all of the information been provided to,
and reviewed by, the Union in a setting devoid of an asserted
impasse and of the unilateral changes that followed. Nor is
it necessary to do so, since Respondent has shown no statu-
torily countenanced need for having taken the actions that it
chose to take on September 30, without first having supplied
the Union with the requested information. In short, Respond-
ent simply ‘‘jumped the gun’’ by not allowing negotiations
to continue so that it could determine whether or not total
agreement could be reached after the Union had received and
reviewed all the information that it had requested.
Furthermore, a preponderance of the evidence establishes
that at least one cause of the strike was Respondent’s dec-
laration of a last and final offer before all the requested in-
formation had been supplied, although there is no evidence
that the decision to strike had been predicated on the lack
of opportunity to examine information that had been sup-
plied. As Houston was preparing to depart negotiations on
September 30, Boyens protested that Respondent had failed
to provide all the information that the Union had requested.
There was credible testimony, supported by objective consid-
erations, that this same theme had been voiced during the en-
suing executive board meeting that produced the decision to
initiate the strike. Moreover, implementation of Respondent’s
last and final offer created a situation where employment
terms were unilaterally imposed that served to inherently
prolong the strike, notwithstanding the fact that all the re-
quested information ultimately was provided to the Union.
Consequently, the strike commenced and remained cat-
egorized as an unfair labor practice strike and when Re-
spondent declined to immediately reinstate the strikers in
June 1989, it further violated the Act.
After the hearing had closed, the General Counsel moved
to amend the complaint in two substantive respects: to allege
a violation of Section 8(a)(1) of the Act by the October letter
telling strikers that they would be replaced permanently if
they did not report for work by October 12 and, more impor-
tantly, by declaring an impasse on September 30 when there
had been no impasse in negotiations, regardless of the status
of responses to the information requests. Not surprisingly,
Respondent opposed granting the motion, but the Union sup-
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ported it. However, in view of the foregoing conclusion that
Respondent violated the Act by declaring negotiations at im-
passe at a time when unanswered requests for relevant infor-
mation existed, the General Counsel’s motion to add the alle-
gation that no impasse existed in any event is no more than
an alternative theory leading potentially to the same conclu-
sion. It adds nothing to the remedy for the violation that I
conclude did occur in this respect. Accordingly, it is cumu-
lative and I deny this aspect of the motion.
In contrast, it is not disputed that the October 2 letter was
sent to strikers. Employees are entitled to notice not only that
they must be reinstated where they are unfair labor practice
strikers, but also that they cannot be told that they can be
replaced permanently. Accordingly, I grant this aspect of the
motion to amend complaint and, further, conclude that Re-
spondent violated the Act by sending this letter to striking
employees.
B. The Alleged Refusals to Bargain and Changes in
Employment Terms
1. Evidence
The first negotiating session occurred on August 4. It was
fairly brief, consisting essentially of a discussion of ground
rules for conducting the negotiations, statements by each side
regarding general goals, and agreement that noneconomic
proposals would be exchanged at their next meeting, with
economic ones being deferred to a later date. The only other
incident of significance to this case was that Houston admit-
tedly said that Respondent would ‘‘like to get an agreement
by October 1.’’
The next negotiating session was held on August 18. It
commenced with an exchange of noneconomic proposals. In
addition to one involving job security—similar to the Island
Creek proposal—five made by the Union pertained to pen-
sions: that amendments must be submitted to the Union’s
international body for approval; that plan termination lan-
guage be inserted into the contract; that Internal Revenue
Service funding waiver applications be prohibited during the
contract’s term; that excess assets revert to participants in the
form of improved benefits after all liabilities are satisfied
under the plan; and that Respondent annually provide the
Union’s international with an actuarial report, trustee report
and DOL form 5500 during the contract term. Following a
brief discussion of the similarity of leasehold information
submitted during the Big Horn negotiations to that requested
of Respondent and, also, of tool allowance and safety com-
mittee, the parties recessed to review the proposals. The re-
mainder of that day was spent going item by item through,
first, the Union’s proposal and, next, the one submitted by
Respondent. During that process, Houston voiced specific
objection to the Union’s union-security proposal; Boyens
said that it was a ‘‘must’’ item. Conversely, Boyens objected
to Respondent’s broad subcontracting language, stating that
the Union would not agree to it then, nor on October 1. In-
deed, the Union proposed added restrictions on Respondent’s
then-existing contractual right to subcontract work.
This process of item-by-item review of proposals contin-
ued during the next negotiating session, conducted on the
following day. Particularly discussed were working out of
job classification and topics encompassed by the general cat-
egory of job security, such as seniority and job bidding. With
regard to pensions, Houston said that some of the Union’s
noneconomic proposal appeared acceptable, but that he need-
ed time to have them reviewed by someone more experi-
enced in pensions and promised to comment on them more
specifically after that had been done. Toward the end of that
session, Boyens characterized the Union’s job security and
union-security proposals as ‘‘must’’ items. The parties ad-
journed with the understanding that economic proposals
would be exchanged at the next negotiating session, sched-
uled for September 9.
As set forth above, before that session occurred, the Union
had received the amended and restated pension plan. On Sep-
tember 1, Blitzstein telephoned Houston, requesting that Re-
spondent submit the plan amendments, as well as a copy of
the trust agreement—a document not included among the in-
formation requested by Boyens on June 22. Houston agreed
to transmit those items. However, he then discovered that the
amendments had not yet been drafted. Trustee Ziegenbein
testified that, until that time, he had been unaware that Re-
spondent and the Union were negotiating about pensions. In-
formed by Houston that ‘‘we need to get on that as soon as
possible,’’ Ziegenbein began preparation of those documents.
However, they were not finalized, signed, and ultimately
transmitted to the Union until mid-November. Ziegenbein
testified that this delay had been occasioned by the extensive
rewriting necessitated by the charges. In fact, before the fi-
nalized documents were completed, there had been two pre-
liminary drafts of the plan and one of the trust.
Although the parties exchanged economic proposals at the
September 9 negotiating session, no pension proposal was
made because Blitzstein had not arrived in time for this ses-
sion. For the most part, Boyens and Houston simply con-
ducted a general review of the items in their respective pro-
posals, quizzing each other on certain aspects of them. For
example, Houston agreed that Boyens was correct when the
latter observed that the absence of wage rates in Respond-
ent’s proposal meant that a wage freeze was being proposed.
By constrast, the Union proposed hourly increases of 65
cents in the first contract year, 55 cents in the second, and
40 cents in the third.
Two aspects of their exchange that day do pertain to issues
in this case. First, Respondent made a wide-ranging job secu-
rity proposal that embraced such items as seniority, pro-
motions, layoffs, and training. Second, the 1986 contract
contained a change in medical-dental coverage from what
had existed previously when PMWA had represented the em-
ployees. The Union proposed restoration of the previous
level of coverage. However, Respondent felt that this pro-
posal would cost considerably more than the contractual
plan. Instead, it proposed a total comprehensive plan with
provisions similar, if not identical, to those existing in the
plan provided to its supervisors.
Blitzstein attended the September 10 negotiating session
and was provided with a copy of the most recent trust agree-
ment, pursuant to his September 1 telephone request. As was
true of the plan, it did not include the 1986 changes. He in-
quired if the amended plan was available. Houston replied
that Ziegenbein had said that he would complete and have
it submitted as soon as possible. When Blitzstein asked if an
updated SPD was being prepared, Houston answered that he
did not know if one was being drafted.
735DECKER COAL CO.
5 The Union sent identical requests to Respondent and to PKS.
A lengthy discussion ensued regarding provisions in the
amended and restated pension plan. For example, in response
to Blitzstein’s remarks, Houston explained that the references
to PMWA were being deleted; that section 12 of the 1986
contract had been changed to a single trustee because of ex-
cessive costs incurred whenever there had been meetings of
trustees; and, that the only other pension change in that con-
tract had been the increase in benefit accrual for employees
between ages 60 and 65. Asked if the current plan would
continue to provide for union approval or disapproval of plan
amendments, Houston responded that he would have to
check. Blitzstein claimed that section 12.3 of the amended
and restated pension plan gave the Union the right to do so
and asserted that the Union wanted to maintain that right.
Houston said that he would ascertain if that right remained
under the terms of the 1986 contract.
During the course of that discussion, aspects of Respond-
ent’s relationship with PKS and its other entities surfaced.
Blitzstein asked if Ziegenbein was employed by PKS; Hous-
ton replied that he was. At another point, Blitzstein asked
why there was so much guarantee money for bargaining unit
employees under the guarantee investment contract used by
Respondent. After mentioning that corporate policy sought
overall equality, Houston responded that he would have to
check on whether that investment contract was comparable to
ones for nonunit employees. Moreover, in the course of ex-
plaining to Blitzstein, as he had earlier to Boyens, the reason
for Respondent’s position on health benefits, Houston stated
that past unit coverage had caused hard feelings among su-
pervisors and administrators who participated in a different,
less beneficial plan. Blitzstein asked if Houston was saying
that Respondent’s position represented corporate policy.
Houston replied that he was trying to achieve consistency
among all mines, but that cost was a factor, adding that there
were a number of other corporate plans—profit-sharing,
401K, stock-option, and short- and long-term disability
plans—with which the Union’s plan was not consistent.
Prefaced with the caveat that he reserved the right to add
proposals when he received all of the requested pension in-
formation, Blitzstein presented certain pension and retirement
proposals: for cotrusteeship; for increased benefits, such as
increased general benefits for current and retired employees,
100-percent joint and survivor benefits, medical coverage for
retirees, and elimination of a single pharmacy feature; and,
for reversion of excess assets to participants in the form of
improved benefits. Any increases, claimed Blitzstein, could
be funded from excess assets in what the Union regarded as
a tremendously overfunded pension plan. Houston countered
that Respondent regarded these assets as no more than ade-
quate, not overfunded, and, in any event, that just because
money was there did not mean that it had to be spent.
Blitzstein asked why there were higher returns on nonunit
than on unit pension investments. Houston replied that he
would look into the reason.
Ultimately, further discussion about retirement benefits
was tabled until more of the requested information could be
produced. Boyens made counterproposals pertaining to other
subjects, including one relating to job security that modified
the Union’s initial proposal by restricting it only to mines
owned by PKS and NERCO west of the Mississippi River.
As the meeting was concluding, Boyens mentioned that the
Union was not interested in concessions and said that he felt
the parties should focus on job security inasmuch as it was
a very important issue. He added that he hoped that he did
not see it happen at Respondent what had occurred at other
western mines, a remark understood by all as a reference to
a strike. Possibly in response to Boyens’ suggestion on Sep-
tember 10, most of the September 11 negotiating session per-
tained to job security. Houston inquired how the Union’s
proposal would operate in light of local hiring preferences at
the mines. Boyens explained that, under the Union’s pro-
posal, local recall lists first would have to be exhausted;
then, before others could be hired, Respondent’s laid-off em-
ployees, if qualified, would have hiring preference at the
other PKS coal mines. Boyens restated the priority to the
Union of job security. Houston said that he understood the
Union’s position and suggested that the parties go back to
the drawing board.
Before this meeting adjourned, Boyens again inquired
about the status of the requested information, observing that
it was difficult to proceed without it. Blitzstein requested
copies of the investment contracts for the other plans men-
tioned the previous day by Houston, so that comparisons
could be made by the Union. Houston agreed to do so when-
ever he could locate them. In addition, Blitzstein requested
a copy of the supervisors’ health insurance plan. By letter
dated September 16, Houston did transmit a copy of the su-
pervisors’ health plan. In that letter, he also pointed out that
section 12.3 pertained to distribution of residual assets, not
to the right of the Union to approve amendments, as
Blitzstein had asserted on September 10.
On September 18, the second principal area of requested
information surfaced. For on that date, Boyens sent a letter
to Houston,5 asserting that ‘‘certain actions, statements, and
assertions’’ during the negotiations had led the Union to con-
clude that Respondent and PKS ‘‘may constitute [a] single
employer . . . or alter ego’’ and, accordingly, that the latter
also should be included in the negotiations. Boyens went on
to request several items, enumerated in 16 numbered para-
graphs, ‘‘to determine [PKS’] relationship with [Respondent]
. . . in order that the [Union] is assured of securing and pro-
tecting the contractural rights of unit employees.’’ Neither on
receipt of this letter, nor during the ensuing negotiations, did
Respondent challenge the relevancy of the information re-
quested by Boyens.
Boyens testified that a series of factors had led him to
send this information request to Respondent. Prior to com-
mencing negotiations, the Union had known that Respondent
was a joint venture of NERCO and PKS; that Respondent
was operated by a PKS-affiliate; that lease information ap-
pearing to relate to Respondent had been received during the
Big Horn negotiations; and, that Respondent’s mine manager,
Leonard Skretteberg, had been mine manager or super-
intendent for Big Horn, Mine Superintendent Frank Kavulok
had bargained for Big Horn in 1984, and Houston had been
the chief spokesperson in negotiations for both Big Horn and
Respondent. In addition, the Union’s local representatives
had complained that when trying to settle grievances short of
arbitration, Respondent’s local officials had been saying that
they had to first contact Omaha, where PKS is
headquartered. Then, testified Boyens, during negotiating ses-
sions prior to September 18, he had learned that Ziegenbein
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was an employee of PKS and served as trustee or adminis-
trator not only for Respondent’s plans for unit and nonunit
employees, but apparently also for those in effect at Black
Butte; that the same investment company did the investing
for all retirement programs; that Respondent’s health benefit
program for supervisors contained references to PKS; and, of
course, that consistency on a corporatewide basis was one of
Respondent’s primary objectives in negotiating a health plan
with the Union.
As a result of these factors, testified Boyens, he had be-
come concerned about Respondent’s ability to resolve the
issues posed in the negotiations, especially those relating to
job security, without participation by one or both of the joint
venturers—most especially, PKS. Similarly, Blitzstein testi-
fied:
because our job security provisions, that we were pro-
posing, were all interconnected with ownership relation-
ships, it was important to tie down who we were deal-
ing with. And, [Respondent] had a very unique situa-
tion. We know [sic] it was a joint venture of two major
companies, so that added a different twist to the situa-
tion.
And, at another point, Boyens stated:
So we had to come to grips with and discover who the
company was in order to determine who the proper per-
son was that should execute this agreement and if we’re
able to . . . get job security, who the proper party was
to grant job security.
Indeed, Boyens’s job security concerns were not simply ab-
stract ones. For, Houston acknowledged that it had been an-
nounced earlier that same year that there would be layoffs
during the course of the year. As a result, agreed Houston,
‘‘I’m sure the employees would be concerned about lay-
offs.’’
Houston received Boyens’ letter on Monday, September
21, the day before negotiations were scheduled to resume. He
assigned his lone assistant, Meyer Korth, the task of marshal-
ling the information requested. During succeeding days when
there were no negotiating sessions, Houston returned to
Omaha to assist Korth in this process. There is no basis for
faulting Respondent’s efforts for the time taken to supply the
information to the Union. Nevertheless, not until September
30 did it do so.
Meanwhile, negotiations resumed on September 22. Dur-
ing an exchange pertaining to health benefits, Houston em-
phasized that Respondent was interested in cutting costs, as
well as in achieving uniformity among plans. Blitzstein ac-
cused Respondent of not being consistent, because its pro-
posed plan did not include what the Union viewed as the fa-
vorable aspects of other plans, such as coverage for disorders
and for drug and alcohol addiction. Houston replied that Re-
spondent was willing to consider including those items for
Respondent’s employees.
An extensive discussion occurred concerning pensions.
Blitzstein inquired about the reason for the large disparity in
rates of return between the PKS profit-sharing plan and Re-
spondent’s pension plan. Houston responded that he would
have to check on that. Blitzstein asked about the state of
preparation of the plan and trust documents, complaining that
Respondent was placing the Union in an intolerable situa-
tion—that those documents were absolutely necessary to pre-
pare pension proposals, because the existing documents con-
tained irrelevant language and did not show ‘‘what exists
today’’ in light of the failure to incorporate the 1986 contract
changes. Houston said that Respondent was working on this
and that the revised documents should be completed fairly
soon. But, added Houston, he did not understand why
Blitzstein was making such a ‘‘big deal’’ out of this, as there
only had been two changes in 1986: reduction to a single
trustee and increased accrual benefits for employees between
60 and 65 years of age. Blitzstein said that getting a union
trustee back in the plan was a priority item—one on which
he hoped to see some compromise by Respondent—because
the Union wanted to know exactly what was taking place and
sought some control through participation in administration
of the plan. He also reiterated that as the plan and trust al-
ready submitted by Respondent explicitly gave the Union the
right to approve plan amendments, he expected that this ap-
proval right would continue to be included in the amended
documents.
During this meeting, Houston made certain proposals re-
garding the pension plan. He accepted two of the Union’s
noneconomic pension proposals—the one requiring insertion
of plan termination language in the contract and the one
obliging Respondent to annually provide the Union’s inter-
national with an actuarial report, trustee report and DOL
form 5500—and proposed deleting the age 70 cap on manda-
tory retirement, as well as including 100-percent joint and
survivor retirement option on an actuarially reduced basis.
However, when Blitzstein asked if Respondent had prepared
an actuarial reduction table to calculate the difference in ben-
efits under the last proposal, Houston answered that he did
not have one. Blitzstein requested that one be provided so
that he could make sense of that portion of Respondent’s
proposal. A further discussion ensued about whether or not
the fund was funded excessively, with each side restating its
previous arguments.
As the session neared conclusion, Blitzstein said that Re-
spondent’s 1-year contract term was unacceptably short, that
the Union viewed Respondent’s subcontracting proposal as
overly broad and a particular sore point, and that a lot of
union feeling could be soothed by agreement to a union-se-
curity provision, a particularly important institutional concern
of the Union. After a recess, Houston responded that he was
disappointed that the Union had not made a counteroffer and,
with specific regard to the union-security proposal, that Re-
spondent had heard that the Union’s large percentage of
signed up members had resulted from harassment and arm-
twisting.
During the course of the September 23 negotiating session,
Respondent offered some modifications to its earlier pro-
posals. Boyens increased the length of the Union’s proposed
contract term from 36 to 42 months, adding that it was sub-
ject to substantial reduction if Respondent would enter into
a side agreement embodying job-security provisions that
would survive the contract term. Boyens also said that he
would like a response to his single-employer information re-
quest by the following week. Houston said that it was being
worked on and that he would do the best that he could to
furnish that information. Boyens said that the Union was
willing to eliminate its earlier proposal strengthening the sub-
737DECKER COAL CO.
6 Blitzstein testified that he had no opportunity to do so on September 29
and 30 and, further, that doing so simply ‘‘slipped through the cracks’’ after-
ward.
7 Houston testified:
My view of it was that we were at the table to negotiate whatever it was
that we could negotiate. But, basically as I viewed it, the drafting of plan
amendments . . . I know I referred to it as an administerial act. I think
I called it, too, perfunctory tasks that were performed by the consultant.
The process, as I saw it, was basically one whereby the parties would
negotiate whatever they wanted to negotiate, in terms of concepts, benefit
levels, benefit alternatives, options; and, then, the consultant would—
would be told what had been negotiated and . . . they’d take from there
in terms of handling the . . . plan documents; the plan trust; the plan
itself.
contracting clause, because he felt that the job-security clause
would provide sufficient protection.
With respect to pensions, Houston reported what he had
learned about the return rate discrepancy between Respond-
ent’s pension plan and PKS’ profit-sharing plan. After com-
plaining that without the requested current plan and trust, the
Union could not make a full pension proposal, Boyens in-
quired when these documents would be ready. Houston re-
plied that Respondent was working on them, but opined that
it was no ‘‘big deal.’’ Boyens disagreed, saying that he un-
derstood that a lot of the old plan and trust needed to be re-
written and that the rewriting process was not simple.
Boyens continued by saying that as a bargainer, he would be
silly to simply take someone’s word that the process in-
volved no more than a simple redraft. Their discussion con-
cluded with Houston repeating that, with a small change in
one, he could accept the two items from the Union’s non-
economic pension proposal that he had identified during the
September 22 session.
Most of the negotiating session on September 24 was de-
voted to a discussion of job security. Pensions were men-
tioned only twice. Boyens again said that he could not make
proposals on that subject without the requested information.
At another point, Boyens said that the supervisors’ medical
plan was unacceptable, but that the Union felt that the exist-
ing retirement surplus could be used to fund a medical pro-
gram for retirees.
Respondent offered a revised working out of classification
proposal. Boyens responded that he felt that Respondent’s
overall position on job security simply would breed charges
of favoritism and, concomitantly, generate grievances. A sim-
pler solution, claimed Boyens, would be to rely on skill and
ability, as was done at Big Horn and as the Union’s pro-
posals contemplated. In this way, argued Boyens, Respondent
and its related corporate entities would avoid grievances and
secure a ‘‘known commodity,’’ by allowing Respondent’s
workers to fill vacancies as they became available at other
mines through a system of preferential hiring and transfers.
However, Houston countered that those who were good
workers could be hired at other mines, without the need for
a preferential system. Boyens said that he could agree in
concept to the revised working out of classification proposal
if Respondent would agree to some aspects of the Union’s
union-security proposal. Moreover, he withdrew references to
accretion from the Union’s job-security proposal, but pointed
out that the Union especially wanted the information re-
quested on September 18, because it went to the heart of the
Union’s job-security proposal.
On that same day, Boyens sent another letter to PKS and
one to NERCO seeking information similar to that requested
of Respondent and of PKS on September 18. By letters dated
September 29, PKS responded to the Union’s requests, al-
though it specifically challenged some of the factual conten-
tions made by the Union in its requests. Meanwhile, the par-
ties resumed bargaining in Sheridan, Wyoming, commencing
what would prove to be the final three negotiating sessions
prior to occurrence of the strike.
At the September 28 negotiating session, Houston sub-
mitted an updated proposal, containing the changes that he
had proposed following the Union’s initial proposal. A dis-
cussion of a possible 4–10 workweek ensued. Boyens in-
quired about the status of his information requests. Houston
replied that Respondent still was working on the pension in-
formation and said that Boyens should be receiving the infor-
mation sought in his September 18 letter to Respondent. In
the course of the conversation about the pension information,
Houston said that the consultant working on it would make
the changes dictated by the 1986 contract, as well as chang-
ing the name of the employees’ bargaining representative.
But Boyens, again, responded that simply telling him did no
good, because he needed the revised documents to see if
these changes actually had been made. Before this session
concluded, the Union altered its wage proposal, proposing a
$1000 bonus in the first contract year, followed by a 45-cent
per hour increase in the second one and a 35-cent increase
in the third contract year.
When the September 29 session commenced, Respondent
proposed some changes, although none dealt with pensions
or job security. During a discussion of pensions that did
ensue, essentially two topics were covered: the comparative
differences in investment returns between the PKS profit-
sharing plan and Respondent’s pension plan and, second,
production of the updated plan and trust. With respect to the
former, Houston said that the disparity was not so great as
portrayed by Blitzstein, adding that the difference resulted
from the dates when investment contracts had been pur-
chased. Claiming that this made no sense, Blitzstein re-
quested copies of those investment contracts. Houston replied
that he was not sure that the Union was entitled to them, but
that he would check. He suggested, however, that since he
did not ‘‘understand this stuff,’’ that Blitzstein directly con-
tact and obtain answers from Greg Broz, a PKS employee.6
Concerning the second pension topic, the request for cur-
rent documents, Houston complained that he did not under-
stand why the Union continued bringing this up, since only
two pension changes had been made as a result of the 1986
contract.7 Blitzstein responded that the drafting process was
not a simple administrative task, because a change to a single
trustee involved rewriting a substantial portion of the plan re-
lating to its structure and such a change goes to the very
heart of it—that the Union had made pension proposals, but
had been bargaining in the dark without the revised docu-
ments and needed them to prepare and formulate proposals,
because it did not intend to simply take Respondent’s word
for it. When Houston repeated that the only changes being
made were those enumerated in the 1986 contract, Blitzstein
retorted:
Okay. If that’s the case, I just want to state for the
record here that both the plan and the trust give the ap-
proval authority on all plan amendments to the Union,
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 An admitted reference to striking.
as well as the Company . . . [and] there had better not
be any changes here.
The importance to the Union of this approval authority
was illustrated by what occurred later in the session. For be-
fore it concluded, Boyens withdrew the Union’s cotrustee
proposal on condition that Respondent agree to the Union’s
first noneconomic pension proposal: that the Union would
continue to possess the right to review and approve amend-
ments to the plan before they became effective. Boyens said
that he would agree to this revised proposal once he actually
saw the updated documents. Houston said that, ‘‘The Con-
sultant advises it should [take] two more weeks’’ and that the
documents would be forwarded to the Union when prepared.
The Union also reduced the amount of its proposed first con-
tract year bonus to $950.
Prior to the luncheon recess, Respondent repeated that it
sought a contract by October 1. Boyens angrily responded
that he was being forced to negotiate in the dark because he
did not have the information that he needed; that Respondent
had made no movement on the medical plan even though its
costs had been virtually identical before and after existence
of the expiring contract and even though the pension surplus
would pay for some of the items sought by the Union; that
the Union was not willing to make concessions and wanted
to see some significant ones by Respondent in the areas of
job security, subcontracting, insurance, foremen working,
contract duration and union security; that there was no log-
ical reason why Respondent could not agree to job security,
a no-cost item, and to withdraw its subcontracting and super-
visor-working proposal; that he saw Respondent as one em-
ployer with NERCO and PKS, regardless of what was dis-
closed by Respondent’s response to the Union’s single-em-
ployer requests; and, that Respondent was aware of what the
Union had had to do to secure job security in the west8 and
that Respondent was giving the Union an invitation to a fist
fight, which meant a strike.
The parties adjourned for lunch, agreeing to resume nego-
tiating at 2:30 p.m. However, before that time, Houston tele-
phoned Boyens and canceled the afternoon session, saying
that he wanted to review the proposals before meeting again.
The final negotiating session was conducted on the fol-
lowing day, September 30. Respondent gave Boyens a copy
of its reply to his September 18 information request. Then,
Houston delivered two written and recited several oral pro-
posals. With respect to pensions, Respondent agreed to items
two and five of the Union’s noneconomic pension proposals,
so long as the words ‘‘and plan amendments, if any’’ were
added to the fifth item; provision for 100 percent surviving
spousal benefits; and, deletion of the after-age 70 cap. Hous-
ton also promised to provide copies of the investment con-
tracts requested the day before by Blitzstein. He continued
by saying that current wages were at the top of the ladder
and Respondent believed that controlling costs was the best
job security. With regard to the latter, Houston said that it
was incomprehensible that the Union believed this to be a
nocost item—that Respondent viewed it as a cost item of the
first order and that the Union’s proposal infringed on Re-
spondent’s right to run its mine and to hire locally, a right
that Respondent did not intend to surrender. However, he did
modify the broadened subcontracting provision that initially
had been proposed by Respondent.
Following a 2-hour recess, negotiations resumed. Having
reviewed the single-employer information during that recess,
Boyens identified five areas in which he regarded the re-
sponse as incomplete: that Respondent had provided only
summaries of its management committee meetings during
which reference had been made to PKS, whereas the Union
was seeking the minutes, themselves, of those meetings; that
Respondent had replied that no single person held a labor re-
lations-related position in both Respondent and PKS, whereas
the Union had sought the identities, titles and duties of offi-
cers, shareholders, directors, or management representatives
who held a position in either one; that in response to the re-
quest for identities of any individual who performed any
services for Respondent and PKS, Houston had answered
only that approximately 90 to 100 did so, although his re-
sponse added, ‘‘We are still researching the names, job titles
and company of these persons and will provide that informa-
tion as soon as it is obtained’’; and, that with regard to the
request for identification of all services that PKS provided to
Respondent, Houston had replied only that PKS ‘‘provides
some accounting and financial-related services, some pur-
chasing and some legal-services,’’ without specifying what
they were. Moreover, with regard to the request for all com-
munications from PKS to Respondent ‘‘governing the work
to be performed by [Respondent],’’ Houston had answered
that Respondent was ‘‘unclear’’ what was meant by that
phrase. Boyens explained what information the Union was
seeking in each of these categories and Houston promised to
provide all of it. In addition, Houston promised to look into
Boyens’ assertion that some of the lease information given
to the Union had proved inaccurate when it was checked.
In a discussion that ensued following Boyens’ query as to
whether Houston had PKS’ proxy to settle a contract,
KMG’s name surfaced. Boyens testified that, until then, he
had believed that this entity was no more than a ‘‘flow chart
division.’’ Based on answers to his questions concerning
KMG, Boyens said that he was putting Houston on notice
that the Union intended to seek the same information about
it as had been sought about Respondent, NERCO and PKS,
because,
if they held all these properties and were the one that
could grant the job security and were in fact now the
single employer possibly, then that was the person we
wanted to look toward in order to get the proper person
to sign the agreement and job security. It was both im-
portant in job security and in pension.
Boyens asked if the new plan and trust documents were
available. He accused Respondent of having violated ERISA
by not having redrafted them by now and, further, said that
he could not make complete proposals without them and, for
that matter, without the added information sought in his Sep-
tember 18 request.
Boyens then made a series of proposals. He prefaced them
with the assertion that it was late and he wanted to move the
negotiations along, even though he was not waiving the
Union’s right to make added proposals and, moreover, felt
that NERCO and PKS should have people at the table. Then,
Boyens withdrew the lessor/lessee portion of the job-security
739DECKER COAL CO.
9 Houston testified that he had heard Boyens made similar statements in pre-
vious negotiations with him at Respondent and at Big Horn since 1983, but
further negotiations usually yielded only ‘‘maybe very minor movement.’’ Fur-
ther, Houston testified that on September 30, Boyens never did specify the
areas in which movement could occur. Indeed, testified Houston, from the be-
ginning of negotiations Boyens had not indicted any willingness to move from
the basic Island Creek job-security proposal, to accept Respondent’s position
on union security, nor to accept Respondent’s position on duration of the con-
tract.
10 Union President Larry Deeds testified that, to the best of his recollection,
there had been no mention of outstanding information requests at the conclu-
sion of the September 30 negotiating session. However, Deeds’ affidavit re-
cited that Boyens had made such a statement. More important, Houston testi-
fied that Boyens had done so: ‘‘Boyens said, ‘You can’t do that. That’s a clear
unfair labor practice. You’ve got to provide us that information.’’’
11 No SPD was provided until the following year. However, there is no alle-
gation of a delay in providing information beyond November 17. Moreover,
the only ERISA expert who appeared as a witness testified that, under that
legislation, entitlement to SPDs was the right of employees, not of their bar-
gaining agent. Of course, that is not dispositive of entitlement to a copy under
Continued
proposal, coupling, instead, the phrase ‘‘coal mining subsidi-
aries and affiliates’’ to current mines and those newly ac-
quired by NERCO and PKS during the contract’s term;
sought language maintaining employees’ jobs when subcon-
tracting occurred; withdrew the Union’s card check and neu-
trality pledge portions of the job-security proposal; proposed
a change in the tool allowance payment method; and, re-
duced the wage proposal to a $900 lump sum payment in the
first contract year and 40- and 35-cent-per-hour increases in
the next 2 years. Boyens continued his presentation by criti-
cizing Respondent’s position on wages, calling it unaccept-
able in light of increased production and revenues and, fur-
ther, inasmuch as craft employees had received no raises
since 1983. Then he said that the Union had room to move
on all these items and wanted to continue negotiating,9 but
needed movement by Respondent. However, accused Boyens,
Respondent was offering no quid pro quo despite its desire
for the Union to agree to changes in medical plan simply to
achieve corporate consistency. Boyens concluded by adding
that the Union could move, but not without the requested in-
formation.
After the luncheon recess, Houston said that he needed to
review the proposals so that everyone understood the parties’
positions. He then went through Respondent’s updated pro-
posal, covering in detail each outstanding item, such as in-
serting language providing the joint and survivor benefit and
deleting the age 70 cap. In the course of this review,
Blitzstein interrupted by asking if the actuarial reduction
table had been prepared and Houston replied that he would
provide it, but had not seen the table and did not know how
the calculations were being performed. After completing his
oral review of Respondent’s revised proposals, Houston went
through the union proposal, rejecting each item to which Re-
spondent did not agree.
Houston then announced that this represented Respond-
ent’s last and final offer. Boyens protested that Houston
could not adopt that position because there were outstanding
information requests.10 Houston replied that Respondent
would continue providing information as it became available.
Boyens accused Houston of refusing to bargain, thereby
committing an unfair labor practice. Houston disputed that
characterization and asked if Boyens wanted to bargain about
the single-employer issue, but Boyens responded that he did
not want to do so, because, ‘‘you’ve got the wrong people
at the table.’’ Houston left the meeting.
Houston testified that when he left the September 30 nego-
tiating session, he had not made a decision concerning imple-
mentation of Respondent’s last and final offer. However, by
the following day, he decided to do so and, accordingly, no-
tified the Union of that decision. Furthermore, as the weeks
passed, he kept his promise to continue furnishing informa-
tion to the Union. Thus, by letter dated October 14, Re-
spondent provided responses to two of the items sought by
the Union’s September 18 letter and covered by Boyens dur-
ing his September 30 enumeration of deficiencies. The re-
maining items were provided by letter dated November 12.
On the following day, November 13, Respondent sent copies
of the by-then completed plan and trust agreement. However,
not until December 19 did Houston transmit the table of ac-
tuarial rate equivalents that Blitzstein had requested.
Following implementation of Respondent’s last and final
offer, the parties met on four more occasions during that
year, beginning on October 16, and on five additional occa-
sions between January 18 and May 26, 1988. The Union re-
duced its proposed pension increase; Respondent proposed an
increase in monthly benefits for current retirees. However, no
other meaningful progress was made toward final agreement
on all terms for a collective-bargaining contract. By the time
of the hearing, the parties remained essentially where they
had been when the strike commenced and when Respondent
implemented its last and final offer.
2. Analysis
As discussed in section III,A, supra, the disputed allega-
tions of the complaint assert that Respondent bargained in
bad faith in three respects: by failing and refusing to furnish
relevant information from June 22 to November 17, when the
Union actually received the pension plan revised to incor-
porate the 1986 contract changes; by declaring an impasse in
negotiations without having furnished that information as
well as the revised trust agreement and some of the alter
ego/single-employer information, and by depriving the Union
of sufficient time to examine and to consider alter ego/single-
employer information that had been provided; and, by unilat-
erally changing terms and conditions of employment when it
implemented its last and final offer on October 1. I conclude
that there is insufficient evidence to support the first of these
allegations. However, a preponderance of the evidence does
support the allegations that Respondent violated the Act by
declaring an impasse and, further, by implementing the
changes embodied in its last and final offer, because not all
the relevant information had been provided to the Union by
the dates of those actions, and, also, the Union had not had
sufficient time to meaningfully inspect the information that
had been supplied to it on September 30. In short,
‘‘Respondent[] simply acted too quickly in [declaring im-
passe and] implementing the last offer . . . .’’ Dependable
Maintenance Co., 274 NLRB 216, 219 (1985).
With respect to the alleged delay in providing information,
the complaint identifies the period from June 22 to Novem-
ber 17. So far as the evidence discloses, of all the informa-
tion requested on June 22, only a pension plan embodying
the 1986 changes had not been supplied to the Union until
November 17.11 On its face, a 5-month delay appears exces-
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Act. But, in view of the state of the pleadings, I conclude that this issue
need not be reached.
12 Indeed, a simple list of amendments and modifications would not have
been helpful, since the 1986 changes required entire redrafting of the plan.
sive by most standards. Yet, the evidence shows that the
delay resulted initially because the Union did not understand
ERISA requirements for preparation of a plan, which led to
an ambiguous request on June 22, and then by Respondent’s
legitimate need for time to prepare one.
As set forth in the preceding subsection, on June 27, the
Union requested only a ‘‘current ERISA Plan document,’’ as
well as amendments and modifications required by ERISA.
In doing so, the Union was seeking a document which em-
bodied the 1986 changes.12 But, undisputed expert testimony
established that ERISA had not obliged Respondent to pre-
pare a new plan, including the 1986 contract changes, by
mid-1987. Consequently, when Respondent furnished the
pre-1986 documents, it did, in fact, furnish the ‘‘current
ERISA plan.’’
Of course, once the Union discovered that it had received
a document that was stale in terms of the 1986–1987 con-
tract, it requested a plan that embodied the changes resulting
from that contract. It also requested a copy of a similarly
current trust agreement. But those requests were not made
until September, over 2 months after the initial request had
been made. Because the 1986 change from co- to single-
trustee affected a substantial portion of the plan, drafting of
a revised plan was not a summary process. Nor is there evi-
dence that Respondent did not attempt to have it completed
in as short a time as the complexity of the problem would
permit.
The duty to furnish requested information is not a rigid
and unreasonable one. It requires no more than an honest ef-
fort to provide whatever information is requested as promptly
as circumstances allow. Here—in light of the initial mis-
understanding concerning a ‘‘current ERISA plan,’’ the rel-
atively belated point in time when the Union clarified its re-
quest, the somewhat late request for a copy of the trust
agreement, and the undisputed time-consuming task of pre-
paring a revised plan and trust agreement that would encom-
pass the 1986 change from co- to single-trustee—a prepon-
derance of the evidence does not warrant the conclusion that
Respondent delayed unlawfully in furnishing the updated
plan and trust agreement to the Union.
However, a contrary conclusion is warranted with respect
to Respondent’s presentation of a last and final offer on Sep-
tember 30 and, moreover, concerning implementation of the
terms of that offer on the following day. In these areas, the
governing legal principles are clear and well settled. During
negotiations, an employer is not free to make changes in sub-
jects under negotiation until an impasse exists. ‘‘We hold
that an employer’s unilateral change in conditions of employ-
ment under negotiation is . . . a violation of § 8(a)(5)
. . . .’’ NLRB v. Katz, 369 U.S. 736, 743 (1962). ‘‘An em-
ployer violates [§ 8(a)(1) and (5) of the Act] if he unilaterally
changes a condition of employment that is under negotiation
before bargaining has reached an impasse.’’ Richmond Re-
cording Corp. v. NLRB, 836 F.2d 289, 293 (7th Cir. 1987).
A legally recognized impasse cannot exist where the em-
ployer has failed to satisfy its statutory obligation to provide
information needed by the bargaining agent to engage in
meaningful negotiations. ‘‘A failure to supply information
relevant and necessary to bargain constitutes a failure to bar-
gain in good faith in violation of Section 8(a)(5), and no
genuine impasse could be reached in these circumstances.’’
Pertec Computer Corp., 284 NLRB 810 (1987). As in
Pertec, most cases applying this principle are ones where the
employer has unlawfully refused, altogether, to provide the
information. As I have concluded above, this is not the situa-
tion presented in this case. Respondent argues that absent
such evidence—evidence of an unlawful refusal to provide
information—a statutory refusal to bargain cannot exist in
this type of situation. That is, contends Respondent, a refusal
to bargain based on a failure to provide information can exist
only where the refusal to provide the information is, itself,
unlawful.
Yet, a bargaining agent’s position is no different in the
one situation than in the other. In both, it is deprived of in-
formation that it needs to properly assess the employer’s pro-
posals and, concomitantly, to properly formulate bargaining
proposals of its own. In fact, even where an employer has
complied with its statutory duty and information is provided,
the Board has concluded that genuine impasse cannot be de-
clared, and a final offer implemented, ‘‘before the union had
a reasonable opportunity to review the relevant information
provided to it . . . and to analyze the impact such informa-
tion would have on any counteroffers it might make.’’ Storer
Communications, 294 NLRB 1056 (1989) (describing the
meaning of the Board’s earlier holding in Dependable Main-
tenance Co., 274 NLRB 216 (1985), and 276 NLRB 27
(1985)). Of course, there may be situations where there exists
a compelling need for a party to declare impasse before all
requested relevant information has been provided. However,
this is not such a case, inasmuch as Respondent has pre-
sented no evidence of any compelling economic need to have
made a last and final offer on September 30.
Obviously, the requested information must be relevant to
the negotiating process—must relate to a mandatory bargain-
ing subject. See, e.g., Service Employees Local 535 (North
Bay Center), 287 NLRB 1223 fn. 1 (1988). Yet, there can
be no question about the inclusion of retirement programs as
a mandatory subject of bargaining. ‘‘To be sure, the future
retirement benefits of active workers are part and parcel of
their overall compensation and hence a well-established stat-
utory subject of bargaining.’’ Allied Chemical & Alkali
Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 180
(1977). Nor can it be said that pensions are a less important
than other mandatory subjects, since ‘‘the Board has not dif-
ferentiated among the various mandatory subjects of bargain-
ing.’’ Arrow Automotive Industries, 284 NLRB 487 (1987).
Respondent argues that the Union had not needed a re-
vised plan and trust agreement to make economic proposals
pertaining to pensions. Boyens, of course, acknowledged as
much during the negotiations. However, noneconomic as-
pects of pension programs also are important. Although the
Union made some noneconomic pension proposals, through-
out negotiations it repeatedly reserved its right to make addi-
tional ones, if warranted by examination of the plan and trust
agreement incorporating the 1986 changes. Consequently,
Respondent was on specific notice of the importance to the
Union of the noneconomic aspects of the pension program.
In the briefs, arguments are exchanged concerning whether
Respondent had a statutory duty to prepare a plan and trust
agreement embodying the 1986 changes, with the General
741DECKER COAL CO.
13 Only Respondent is charged with having committed unfair labor practices
in this proceeding. Consequently, no unfair labor practice issues are posed re-
garding the identical requests for this information sent to other coal mine oper-
ators, such as PKS and NERCO. Their only possible significance here is that
those requests do tend to support the Union’s assertions that it genuinely was
trying to determine if a relationship existed between Respondent and other
mine operators and, accordingly, was seeking to gather pertinent information
from the operators of other mines, as well as from Respondent.
Counsel claiming that such a duty existed under Vore Cin-
ema Corp., 254 NLRB 1288 (1981), and Beyerl Chevrolet,
221 NLRB 710, 720–721 (1975), and with Respondent
claiming that, simply because a bargaining agent requests it,
no case holds that ‘‘an employer is obligated to prepare, or
cause to be prepared, a document not then in existence,’’ cit-
ing Gilberton Coal Co., 291 NLRB 344 (1988), and United
Engines, 222 NLRB 50, 56 (1976). This, however, is a dis-
pute that need not be addressed further in the context of this
case. For, once the misunderstanding was clarified regarding
the exact plan and trust agreement sought by the Union, Re-
spondent readily promised to prepare and to supply these
documents to the Union. Consequently, the crucial issue is
whether, in the face of that promise, Respondent was free to
make a last and final offer before they were prepared and
provided to the Union.
During negotiations, Houston asserted that the 1986 pen-
sion changes had been straightforward ones that did not ne-
cessitate actual examination in a revised plan for the Union
to negotiate intelligently concerning the noneconomic aspects
of pensions. Yet, that assertion effectively was refuted by the
testimony of Respondent’s own expert, as well as by that of
trustee Ziegenbein. As quoted in section III,A, supra, the
former explained that the change to single trustee required
substantial rewriting of the plan to ensure that all of the
‘‘gotcha’s’’ among the needed ‘‘multitudinous’’ changes
were covered. Similarly, Ziegenbein denied specifically that
the changes could be characterized as ‘‘minor,’’ explaining
that, ‘‘They affected the administrative areas of the pension
plan and the trust document.’’ In fact, once the revised docu-
ments were submitted in November, Blitzstein felt that they
erroneously deleted the Union’s right, independent of the
number of trustees, to review and approve all future amend-
ments. This, of course, is the very type of dispute that could
have resolved through negotiations, had Respondent but re-
frained from making a last and final offer until the Union
had received and inspected the revised plan and trust agree-
ment—just as had occurred in 1984 when, as described in
section III,A, supra, the Union had secured revisions in the
draft plan and trust agreement for Big Horn employees.
It also is worth noting that the revised plan and trust
agreement were not the sole pension-related documents not
yet furnished to the Union when negotiations were discon-
tinued on September 30. Since September 22, Blitzstein had
been seeking an actuarial reduction table so that he could
evaluate Respondent’s own joint and survivor retirement op-
tion. That document would not be provided until December.
In addition, on September 30, Houston promised that he
would provide copies of investment contracts for the PKS
profit-sharing plan and for Respondent’s pension plan, pursu-
ant to Blitzstein’s request during the September 29 negoti-
ating session. Again, while these documents ultimately were
furnished to the Union, that did not occur until after October
1.
While the precise word was not uttered on September 30,
Respondent concedes that it regarded negotiations at impasse
on that date. However, under the principles set forth above,
so long as there were unanswered requests for pension-re-
lated information, this was not a position that Respondent
was free to adopt and act on.
Although, perhaps, cumulative in light of the foregoing
conclusion, the Union’s request for the so-called alter
ego/single employer information should not be ignored. On
September 30, Respondent timely furnished information
sought by the Union’s September 18 letter.13 Moreover, dur-
ing the negotiating session that day, in light of the clarifica-
tion provided by Boyens, Houston promised to provide the
remaining information requested in the September 18 letter:
minutes of management committee meetings; identities, titles,
and duties of overlapping officers, shareholders, directors,
and management representatives, as well as of individuals
and entities providing services to both Respondent and other
mines; descriptions of services provided by other operators to
Respondent; and, communications to Respondent governing
work that it was to perform. Furthermore, during this negoti-
ating session, more specific discussion of KMG’s role in Re-
spondent’s operations led Boyens to announce that he in-
tended to request the same information about KMG. Con-
sequently, when Respondent concluded the September 30
session, considerable information in the alter ego/single em-
ployer area remained unanswered.
In explaining to Houston his reasons for wanting this in-
formation, Boyens advanced essentially two reasons: to as-
certain the identity of the true entity with whom the Union
should be negotiating and, second, to formulate proposals re-
garding employment security. It is problematic whether,
standing alone, the first reason would justify production
under the Act of this information. ‘‘Information concerning
the existence of an alter ego . . . operation is not presump-
tively relevant. Therefore, a union must show it has a reason-
able belief that the information is relevant.’’ C.E.K. Indus-
trial Mechanical Contractors, 295 NLRB 635 (1989). True,
a bargaining representative ‘‘is entitled to know the identity
of the employer of the employees it represents.’’ Island
Creek Coal Co., 292 NLRB 480 (1989). Yet, the Union al-
ready knew the identity of the employer of the employees for
whom it was bargaining. Indeed, it had been bargaining with
Respondent for 4 years. There is no evidence that, during
that time, reason for concern had developed concerning Re-
spondent’s ability to discharge its obligations under the Act
to the Union. The situation is hardly different than the ones
existing between corporations and their shareholders. The rel-
evancy standard in this area is not satisfied merely by vague
assertions such as ‘‘more effectively representing employ-
ees’’ or ‘‘being able to bargain more intelligently.’’ See, e.g.,
Super Valu Stores, 279 NLRB 22 (1986).
On the other hand, employment security is a mandatory
subject of bargaining. Brockway Motor Trucks v. NLRB, 582
F.2d 720, 726 (3d Cir. 1978). For example, ‘‘an employer
has a statutory obligation to bargain about an economically
motivated decision to lay off employees.’’ Stamping Spe-
cialty Co., 294 NLRB 703 (1989). ‘‘Laying off workers
works a dramatic change in their working conditions (to say
the least), and if the company lays them off without consult-
ing with the union and without having agreed to procedures
for layoff in a collective bargaining agreement it sends a dra-
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I underscore ‘‘seek’’ so that my meaning is not misconstrued. In the con-
text presented here, analysis involves exclusively capacity to agree to transfer
employees between employers who constitute a single employer or an alter
ego—not obligated to do so. Even if two employers have such a relationship,
they need not agree to a bargaining agent’s demand to grant preferential hiring
rights at one to employees laid off by the other. However, a necessary predi-
cate for conducting negotiations regarding the possibility of such transfers is
a determination that an alter ego or single-employer relationship, in fact, ex-
ists. Consequently, to be able to make that predicate determination, it is nec-
essary to obtain information on the relationship, if any, between employers.
15 Even assuming that there had been no basis whatsoever for the inter-enti-
ty belief underlying the Union’s initial, far-reaching job security proposal—
and, thus, that the subject of preferential hiring by those entities of Respond-
ent’s laid-off employees was a nonmandatory bargaining subject—nothing in
the Act prohibits making proposals concerning nonmandatory subjects. The il-
legality arises if a party insists to impasse on a nonmandatory subject of bar-
gaining.
16 Respondent also argues that the Union was attempting to expand the bar-
gaining unit through its job security proposal. But that is not an accurate char-
acterization of the Union’s proposals concerning that subject. No doubt the
Union wanted to continue representing laid off employees if they were hired
by, for example, NERCO or PKS. Yet, at no point did the Union propose that,
in that event, it be allowed automatically to continue serving as their represent-
ative. Instead, its initial proposal did no more than seek agreement to action
that affected the statutory right of those employees to select a bargaining agent
after being hired by an entity other than Respondent. Respondent does not
contend that those particular proposals violated the Act. Nor do they.
matic signal of the union’s impotence.’’ NLRB v. Advertisers
Mfg. Co., 823 F.2d 1086, 1090 (7th Cir. 1987).
In the instant case, the Union genuinely was concerned
about layoffs, as illustrated by comments made during dis-
cussions and meetings of employees, as well as by those of
Boyens during negotiating sessions. Nor was this concern un-
founded. By its very nature, coal mining depletes both the
coal and the employment of those who mine it. Further, there
seems to be no dispute that the potential for layoffs would
be expanded if the Union were to agree to Respondent’s ini-
tial subcontracting proposal. Indeed, even under then-existing
conditions, employees had been notified, earlier in the year,
that layoffs would be occurring. Accordingly, it cannot be
said that the Union was embarking on some form of lark, un-
related to its role as bargaining agent, when it attempted to
bargain about procedures for continuing employment of unit
employees who would be laid off.
Of course, if no alter ego or single-employer relationship
existed between Respondent and the other entities about
which the Union sought information, then there would be no
basis on which to seek preferential hiring at mines controlled
by the other mine operators—at least, not during bargaining
with Respondent. For, a bargaining agent is not free to insist
that an employer secure preferential hiring rights for its laid-
off unit employees with independent and unrelated employ-
ers. However, a bargaining agent can attempt to secure pref-
erential hiring for laid-off unit employees in another depart-
ment or at another branch facility of the employer who lays
them off. So too, it can seek their preferential hiring by an-
other employer if the latter constitutes a single employer, or
an alter ego, of the employer for whose laid-off employees
that union serves as bargaining agent.14
Of course, the bargaining agent must show more than a
wish and a hope to establish a statutory right to such infor-
mation. However, following receipt of the September 18 let-
ter, Respondent did not argue that there was an insufficient
basis for producing the information sought in it. Nor does it
now so argue. Instead, Respondent argues that the Union had
possessed sufficient information earlier in time to support
making the request for this information before September
18—that the Union’s own dilatoriness in not sooner seeking
this information was what prevented it from having all of it
by September 30. Yet, inherently subjective are judgments
concerning the exact point in time at which a party possesses
sufficient information to be satisfied that it is not jumping
the gun—not too prematurely asserting that a sufficient ob-
jective basis exists to warrant production of nonpre-
sumptively relevant information. Certainly, there is no doc-
trine imposing an obligation on parties, at their peril, to
maintain a running tally of information about
nonpresumptively relevant subjects, as it accumulates, and
obliging them to make their requests for it at the precise mo-
ment when, hindsight dictates, a sufficient objective basis ex-
isted for requesting it. Indeed, it may well be that a too-pre-
mature information request might prejudice a party’s ability
to obtain that same information later when additional facts
are disclosed.
Respondent further argues that absence of any actual belief
by the Union that it needed this information is shown most
graphically by the Union’s own initial, far-reaching job secu-
rity proposal—that it was seeking preferential hiring rights
by the other entities before it ever made the requests regard-
ing Respondent’s relationship to them. However, this argu-
ment confuses the difference between subjective and objec-
tive considerations. A party may truly believe that such a re-
lationship exists, but still may not possess a sufficient basis
for satisfying the statutorily-required objective basis for enti-
tlement to information showing whether or not that relation-
ship actually does exist. Accordingly, it does not follow that
a bargaining agent possesses a sufficient statutory basis for
requesting information simply because it has made proposals
in a particular area.15 Significantly, Respondent, itself, gave
some indication of actual existence of, at least, a single-em-
ployer relationship with those other entities. For it failed to
object, on receiving it, that the Union’s initial job security
proposal encompassed nonmandatory matters, because it ex-
tended to entities with whom Respondent had no statutorily
countenanced relationship. Of course, before making its pro-
posal, the Union could not have known that Respondent
would not interpose such an objection to it.16
Respondent’s position is not enhanced by Boyens’ state-
ments to the effect that, regardless of what the requested in-
formation disclosed, he felt that there was an interrelation-
ship between Respondent and those other entities. At best,
those statements show no more than genuineness of his belief
in the existence of, at least, single-employer relationships, al-
beit expressed in colorful and strident fashion. However,
there is no evidence Boyens would not have been forced to
abandon that belief if he received information that refuted his
belief—nor did he impress me as some form of kamikaze
who would continue to demand a job security provision on
the basis of his belief in facts that had been contradicted by
the information that Respondent provided to him.
Nor is Respondent’s position enhanced by the fact that
similar information had been requested by the Union during
negotiations for contracts involving mines not operated by
Respondent. Each situation must be addressed on its own
merits. Thus, regardless of the propriety of the Union’s infor-
mation requests elsewhere, Respondent did not dispute the
relevancy of the requests directed at it. Further, if a bar-
743DECKER COAL CO.
gaining agent is conducting separate negotiations with em-
ployers whom it believes to be interrelated, it hardly is sur-
prising that the bargaining agent would address identical re-
quests about that asserted relationship to both of them.
Based on the evidence, it cannot be said that the Union
had anything to gain by deliberately delaying its alter
ego/single-employer information requests. True, the then-ex-
isting contract expired on September 30. But, of itself, that
expiration did not confer statutory rights on the parties. They
still were obliged to continue bargaining until agreement or
a genuine impasse occurred. And, as concluded above, that
could not occur here until the Union was afforded the oppor-
tunity to bargain about all mandatory subjects—an event that
could not take place, in any event, until Respondent supplied
the pension-related information not yet furnished when the
Union made its alter ego/single-employer request on Sep-
tember 18. In short, on that date, the Union already was pre-
vented from meaningful bargaining about pensions, due to a
lack of information, and that position was in no way altered
by a request for relevant information in another area. Indeed,
the alter ego/single-employer information request was satis-
fied fully before Respondent ultimately supplied the pension
plan and trust agreement.
In these circumstances, the Union had a reasonably objec-
tive basis for requesting information describing Respondent’s
relationship with other mine operators. By declaring impasse,
through a last and final offer, before all of that information
had been provided and, further, before a reasonable oppor-
tunity had been provided for the Union to examine and to
evaluate the information that had been provided, Respondent
violated Section 8(a)(5) and (1) of the Act.
However, Respondent argues that even had the Union pos-
sessed all the requested information on September 30, along
with ample time before then to inspect and evaluate it, there
still would have been no total agreement on that date, be-
cause disagreement on too many bargaining subjects still ex-
isted. To support that argument, Respondent points to the
fact that the Union made no proposals, and no agreement
was reached, even after all the requested information had
been provided. Not only does this show that impasse would
have occurred on September 30 even if the Union had pos-
sessed every shred of requested information with ample time
to evaluate it, argues Respondent, but it also establishes that
no restoration remedy should be ordered even if the impasse
had been declared unlawfully, because the Union enjoyed
ample opportunity to negotiate even after having obtained the
information that it had been seeking. Neither of these argu-
ments have merit.
It is accurate that there are cases holding that subsequent
negotiations can erase the effects of unilateral changes made
before or during negotiations. See, e.g., Storer Communica-
tions, 297 NLRB 296 (1989). However, those holdings have
been narrow ones. By no means can they be construed as
open invitations to escape liability under the Act simply
through expressions of willingness to negotiate every time
changes are made unilaterally. Not only would such a hold-
ing create an avenue to erase unilateral changes in particular
situations; in the long run, it also would serve to effectively
erase the entire statutory prohibition of unilateral changes.
That is not the situation presented by the cases that apply the
limited doctrine of postchange negotiations. Rather, those
cases usually have presented a limited number of disputed
subjects about which the parties have actually been able to
negotiate meaningfully after the changes.
‘‘In the usual case, no substantial bargaining has occurred
between the parties after the employer’s unilateral change;
consequently, the typical make-whole order runs from the
date of the unilateral change until the employer and union
negotiate a new agreement or reach an impasse.’’ NLRB v.
Cauthorne, 691 F.2d 1023, 1025 (D.C. Cir. 1982). Accord-
ingly, the focus for application of the limited doctrine of
cases such as Cauthorne and Storer Communications, ibid.,
is on what actually occurred, rather than on what might have
occurred because of the possibility that meaningful negotia-
tions might have been conducted after the change(s). In fact,
the Union did not have a meaningful opportunity to bargain
after Respondent had made the October 1 changes. For from
that date forward, subjects that previously had been only pro-
posals had become concrete terms of employment, leaving
the Union in the position of trying to negotiate ‘‘give-backs’’
from Respondent to even restore the bargaining situation to
what it had been before October 1. As a result, after that
date, Respondent continued to enjoy the fruits of unlawful
action that ‘‘undermined the Union’s strength in asserting its
position.’’ Ibid.
True, there is no evidence that the Union requested Re-
spondent to restore employment levels to their pre-October
status, cf. Storer Communications, supra, 294 NLRB at 1056.
Yet, Respondent presented no evidence that it would have
been willing to grant such a request, had it been made. Nor
is there a basis for inferring from the evidence that Respond-
ent would have been wiling to do so.
In the final analysis, Respondent’s argument seeks a proc-
ess of speculation, rather than of adjudication—one that re-
quires a seer as opposed to a trier of fact. By its nature, con-
tract negotiating is a winnowing process: one in which pro-
posals are continually modified and positions reconsidered,
with tradeoffs being made until total agreement can be con-
cluded. ‘‘Employer denial of access to . . . information may
for practical purposes be tantamount to interposition of a
trench or hurdle which the bargaining representative cannot
leap or surmount, such as to halt the usually interactive
movement of the bargaining process.’’ Curtiss-Wright Corp.,
193 NLRB 940, 952 (1971). Even had total agreement not
been reached by September 30, that did not bring the process
to an end. Instead, the Act mandates that it continue until
total agreement or valid impasse was reached. And there is
no basis in the record for concluding that that could not have
occurred in this case.
In fact, it is as reasonable on the basis of this record to
infer that—armed with the information it had requested and,
accordingly, with the complete picture in focus—the Union
would have begun striking the subsidiary deals that lead to
total agreement, as to speculate that this would not have hap-
pened. Even without all of the requested information, the
Union already had begun doing so, as is shown most illustra-
tively by the concessions it had been making throughout the
negotiations, including on September 30. For example, it had
moved from proposing a wage increase of 65 cents per hour
in the first year, followed by 55- and 40-cent increases in the
second and third year, respectively to a September 30 pro-
posal of a $900 bonus for the first year and increases of 40
and 35 cents respectively in the second and third contract
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 This particular proposal originally had been portrayed by the Union as a
‘‘must’’ item. Its abandonment furnishes graphic evidence that, despite ada-
mant words, the Union had been willing to compromise, just as it had done
in 1986 when it had agreed to medical coverage representing exactly the type
of ‘‘give-back’’ that it had been proclaiming that it did not intend to concede.
18 This particular constitutional provision continues on to recite that, ‘‘When
a contract expires, the rule of no contract, no work shall prevail unless other-
wise ordered by the International President.’’ However, Boyens testified that
this policy had been supplanted at the 1983 union convention by authorization
of a selective strike fund which permitted work to continue without a contract
at selected employers. This testimony was supported by evidence that work
had continued for Respondent from 1983 to 1986 when no contract had been
in effect. More proximately in time, after the Big Horn contract had expired
in July, employees represented by the Union had continued working without
a contract until early October, after the strike at Respondent already had
begun.
19 Simmons also testified that he believed that he had heard a similar senti-
ment expressed during the 1983–1986 negotiations when, of course, no strike
ever ultimately occurred.
20 However, Beckwith did not claim that Reynolds had identified any date
as the one on which picketing would commence. Boyens acknowledged that
strike preparations had been initiated in mid-August. However, he denied that
those preparations meant that the Union had intended to commence striking
on expiration of the contract. Rather, he testified that the Union merely in-
tended to be in a position to begin striking should it feel that circumstances
warranted doing so—in order not to find itself in a position where it felt that
a strike was warranted, but where the employees did not know what to do.
years. The Union also had dropped its cotrustee proposal17
and had withdrawn its initially proposed more stringent re-
strictions on Respondent’s ability to subcontract. Respondent
also was going through the process of modifying its own
proposals, as illustrated by its agreement to two of the
Union’s noneconomic pension proposals and by the proffered
change in its subcontracting proposal on September 30. Fur-
thermore, Boyens testified that there had been internal union
discussions about agreeing to a shorter contract term than ini-
tially proposed by the Union and, also, about substituting a
maintenance of membership proposal for the more standard
union-security provision. Of course, these changes had not
been actually proposed to Respondent. Yet, the Union was
not obliged to begin bidding more seriously before it had re-
ceived all of its cards. Concomitantly, nothing compelled Re-
spondent to submit a final offer before providing the Union
with all the information needed to negotiate about all the
mandatory subjects of bargaining.
In sum, it cannot be said with any degree of certainty that
negotiations would not have continued and would not have
progressed to final agreement once the Union had been fur-
nished with the requested information and allowed sufficient
time to evaluate it. In the circumstances, a contrary conclu-
sion would be speculative. Respondent has shown no com-
pelling need to have made a last and final offer, and then
to implement its terms, before the Union had been afforded
those statutory rights. As set forth above, it is an unfair labor
practice to declare impasse where requested relevant infor-
mation has not been supplied and it is a further unfair labor
practice to implement employment changes in that situation.
This is what Respondent has done in this case. Accordingly,
I conclude that it violated Section 8(a)(5) and (1) of the Act.
C. Nature of the Strike
1. Evidence
Under the constitution of Respondent’s international body,
‘‘Only the International President can call or authorize a
strike.’’18 By telegram dated September 29, International
President Trumka notified Respondent that he had authorized
a strike to commence at 12:01 a.m. on October 1, on expira-
tion of the parties’ contract. However, Boyens testified that,
in fact, he had been authorized by Trumka to make the final
decision on whether or not a strike actually would be called.
This testimony tends to find support in that of both Boyens
and Houston in connection with negotiation of Respondent’s
1986–1987 contract with the Union. For, they agreed that a
similar telegram had been sent to Respondent in October
1984, during the 1983–1986 negotiations, but that no strike
actually had been called during the approximately 2 years
that then elapsed before a contract ultimately was executed.
Nevertheless, a strike did begin at 12:01 a.m. on October
1. Not surprisingly, the General Counsel and the Union con-
tend that it had been motivated by Respondent’s discontinu-
ance of bargaining and change in employment terms, in the
face of unanswered outstanding information requests. Con-
versely, Respondent asserts that the lack of information was
no more than a convenient pretext for a strike that, as prom-
ised by Trumka’s telegram, would have occurred on October
1 due to Respondent’s unwillingness to acquiesce in the
Union’s contract proposals.
To properly assess these arguments, it is necessary to step
back to the period before the strike commenced. Shovel op-
erator Jeff Sajec testified, without contradiction, that during
the course of several conversations, the last of which oc-
curred in late August or early September, Union President
Deeds had said that the Union had to obtain job security and
that he would strike to get it. Similarly, Overburden Foreman
Dewey Simmons testified that several employees had said
that they felt that there would be a strike, identifying specifi-
cally Paul Zawada and John Lien as persons who had made
such remarks prior to September 26.19 In a like vein, drag
line operator Brett Buszkiewic testified that on September 23
or 24, Union Vice President Rice had said that there would
be a strike, although Rice also had said that he thought that
nothing good would come of it. Equipment operator Robert
Beckwith testified that prior to September 26, he had re-
ceived a telephone call from employee Steve Reynolds. The
latter had said that he was Beckwith’s strike captain and in-
formed Beckwith of the identity of his gate captain, as well
as of his location and time of picket duty.20
September 26 was a significant date in the sequence of
events in this case. For, on that date the Union conducted a
meeting of the unit employees, culminating in a majority
vote in favor of authorizing a strike. Deeds and Rice each
testified that, in the course of addressing the employees, he
had specifically listed Respondent’s purported failure to
produce requested information concerning pensions, as well
as Respondent’s relationship to PKS and NERCO, among the
list of items dividing the parties in negotiations. Both sides
presented employees who testified about whether the unan-
swered information requests had even been mentioned by
one or the other of those two union officials during this
meeting. Those called by the General Counsel responded in
the affirmative, while those called by Respondent answered
in the negative. Yet, while I have no doubt about the honesty
of these men, I do not feel that reliance can be placed upon
any of their accounts. For, when they testified, each of them
745DECKER COAL CO.
21 This is but illustrated by a review of their accounts in the record. For
example, shovel operator Sajec conceded that he recalled only a limited num-
ber of issues discussed by Rice and by Executive Board Member Whitey
Wells. Shop laborer Jurosak admitted that he did not recall Rice’s specific
statements about the pension information. Shovel operator Boyd claimed that
Rice had not enumerated the issues on which the parties were in agreement
as a result of bargaining, although it is clear from the testimony of all wit-
nesses that Rice had done so. Welder Allred had no recollection of the manner
in which the strike vote had been conducted. Dragline operator Buszkiewic ul-
timately conceded that he recalled only matters that he regarded as having
been ‘‘stressed’’ and dragline operator Bensfield admitted that ‘‘one union
meeting kind of blends into another, sometimes, and so I’m not sure exactly
who got up and spoke.’’
22 With respect to the reference to ‘‘implementation,’’ Blitzstein freely con-
ceded that Houston had made no threat to do so, but he testified that the
Union’s representatives felt that Respondent would do so—as, indeed, it an-
nounced the following day that it intended to do.
23 Although Boyens made no mention of this meeting in his prehearing affi-
davit, nor in his testimony during the Montana unemployment compensation
hearing, there is no basis for concluding that a meeting between Boyens and
the executive board had not occurred during the afternoon of September 30.
appeared uncertain in recollection as to what had been said
during this meeting.21
What is not disputed is that a strike vote was taken at the
end of this meeting. However, almost all of the witnesses
agreed that the decision being made by that vote was not to
actually call a strike. Rather, the vote was only conducted on
the question of whether to authorize someone else to call a
strike, if warranted, and to show support for such a decision,
if ultimately made. Not one witness claimed that anything
was said about starting a strike on October 1.
During the final week of negotiations prior to October 1,
additional strike preparations by employees took place. One
employee removed his refrigerator and another his washing
machine from the plant, so that they would not later have to
cross a picket line to get them. Similarly, employees began
removing an extraordinary amount of coal, made available to
employees for their personal use, and employees began re-
moving their large personal tool boxes on September 30.
Drill and Blast Foreman David Ruff testified that when the
shift ended at 3:55 p.m. that day, each member of his pow-
der crew turned in his/her powder keys. According to Ruff,
one of them—Jerry Martini—said, ‘‘It’s going to be a long
one.’’ However, Ruff did not deny being told by crew mem-
ber Gay Luth that she was turning in her keys, ‘‘[i]n case
of a strike,’’ but that if a strike did not occur, ‘‘we’ll pick
them up in the morning.’’ Ruff did agree that he could re-
issue powder keys at anytime. In addition to the comments
made to Ruff, Overburden Foreman Simmons testified, with-
out contradiction, that on September 29 or 30, Deeds had ex-
pressed concern about layoffs if Respondent were permitted
to subcontract and had added, ‘‘Well, it looks like we’re
going to go out’’ and, further, ‘‘I think it’s goin’ to be a long
one.’’
Although Simmons testified that he could not recall if em-
ployees ever had removed their tools from the plant on a
prior occasion, Ruff testified that he could ‘‘remember tools
going out other times, but the actual date I can’t, you
know.’’ In the latter regard, however, more specific informa-
tion was provided by Houston. He testified that mechanics
had packed their tools in preparation for a strike in 1984. Of
course, ultimately no strike ever did occur during the course
of the negotiations then in progress.
After Houston left the negotiating session on September
30, Boyens had a brief meeting with the negotiating com-
mittee and other employees who had been attending that ses-
sion as observers. Among other things, testified Boyens, he
told them that he regarded Respondent’s action as an illegal
walkout, because it was an unfair labor practice to do so
when it was failing to provide information regarding the pen-
sion plan and, now, on KMG as a possible additional alter
ego. He testified that he said that he would be meeting with
the executive board later that day to discuss exercising his
authority to call a strike.
Rice and Blitzstein corroborated Boyens’ account that he
had said that it had been an unfair labor practice for Re-
spondent to terminate negotiations by making a last and final
offer without having first provided relevant information.
Thus, the former testified that Boyens had said that Respond-
ent was not bargaining in good faith, because it could not
go to ‘‘last and final offer with outstanding information re-
quests on pensions and on the single-employer issue.’’ Simi-
larly, Blitzstein testified that Boyens had said that Respond-
ent had ‘‘all these information requests outstanding’’ and had
tried to reach an illegal impasse; that it could not make and
implement a final offer with those outstanding information
requests.22
Later that afternoon, Boyens met with the Union’s execu-
tive board. However, before that meeting, Blitzstein had
jotted down a list of information items that had been re-
quested, but that had not yet been provided by Respondent,
including the current pension plan, trust agreement and SPD;
investment contracts; and, the actuarial reduction table for
Respondent’s own joint and survival pension proposal. He
reviewed the items on the list with Boyens and the two men
also discussed the major unresolved substantive issues.
Boyens, in turn, then prepared his own list of unsupplied in-
formation items that had been requested. Then, he called the
Union’s international office to relate what had occurred that
day, after which he met with the executive board.23
At that meeting, Boyens reviewed his notes and said that
the Union had been hamstrung in bargaining by Respond-
ent’s failure to provide the requested information which the
Union needed. That failure, reported Boyens, constituted an
unfair labor practice and would serve as the reason for a
strike, if a decision was made to call one, because no im-
passe could exist without those documents. Deeds testified
that Boyens also said that he felt that Respondent would im-
pose the terms of its last and final offer.
With matters in this posture, the only choice, as those in
attendance saw it, was to continue working while filing un-
fair labor practice charges or, alternatively, to strike and file
charges. Apparently because of concern about job loss result-
ing from subcontracting if employees continued to work
under Respondent’s last and final offer, all in attendance at
the meeting agreed that a strike should be called. As the
meeting neared conclusion, Boyens agreed to do so. He
issued instructions to put the words ‘‘unfair labor practices’’
on picket signs and, also, to list PKS and NERCO on some
of the signs. Then, aided by Deeds, he prepared a press re-
lease to explain the reason for the strike. In pertinent part,
that press release recites:
The UMWA regrets having to take this action, but
PKS and NERCO’s unlawful actions today have left no
other meaningful alternative. PKS and NERCO have of-
fered nothing to the decker miners in wages, benefits,
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pensions, and most importantly job security. Also, the
companies are asking for concessions in subcontracting
out of work, health plans, seniority, and in other impor-
tant areas of the labor agreement.
By their refusing to bargain in good faith, and their
numerous unlawful unfair labor practices, the UMWA
will file, in the next few days, a number of unfair labor
practice charges with the national labor relations board.
The callous disregard of these companies to their
workers and to the sheridan area community is unfortu-
nate as well as insidious. By asking for givebacks and
concessions, and by failing to even offer any no cost
job security proposals while they have realized profits
of mammoth proportions from the decker mines amply
demonstrates these companies corporate greed.
In fact, picketing occurred even before the decision to
strike had been made—but it was not conducted by employ-
ees. By 3 p.m. on September 30, a group of women, at least
some of whom were wives of unit employees, and children
had stationed themselves at the main highway entrance to the
mine. Some carried professionally lettered signs appealing
for drivers to support the Union. However, there is no evi-
dence that employees participated in their activities. When
they testified, the Union’s officials denied even having been
aware of this activity before or while it was occurring. In
any event, work for Respondent continued until 12:01 a.m.
on October 1.
During the early days of the strike, signs were carried
bearing a variety of legends: ‘‘No Takeaway Contracts’’;
‘‘No Contract, No Work’’; ‘‘Don’t Be A Scab.’’ In addition,
at each entrance a large four-by-four feet plywood sign was
erected, announcing that the strike was in protest of unfair
labor practices. However, while it is undisputed that these
signs appeared by the end of the first week of the strike,
there was considerable dispute concerning whether or not
they had been erected during the early part of that week. The
General Counsel and the Union presented witnesses who tes-
tified that they had been in place on the first day of the
strike; Respondent presented witnesses who denied that testi-
mony. Undisputed is the fact that there were no signs specifi-
cally protesting Respondent’s failure to provide information
that the Union had requested in the course of negotiations.
Evidence was presented that after the strike had com-
menced, numerous conversations, meetings and interviews
occurred with only infrequent specific reference by union
spokespersons to Respondent’s failure to provide information
needed to negotiate. Nevertheless, there were occasions when
that topic was mentioned specifically. For example, shovel
operator Sajec, appearing as Respondent’s witness, testified
that he had learned about Respondent’s failure to do so
through reading the Sheridan, Wyoming newspaper, as well
as from a radio talk show that occurred 2 or 3 weeks after
the strike had begun. Moreover, there were several post-Sep-
tember 30 statements by union officials to the effect that Re-
spondent had declared an illegal impasse and that Respond-
ent had bargained in bad faith.
As set forth in section III,A, supra, Respondent notified all
strikers that they would be replaced permanently if they did
not report for work by October 12. Then, on June 23, 1988,
the Union sent a telegram to Respondent offering on behalf
of all striking employees to unconditionally return to work.
In the case of 80 of these employees, Respondent rejected
the offer to immediately reinstate them solely because per-
manent replacements occupied their jobs.
2. Analysis
Various terminology has been articulated in expressing the
standard that must be utilized to determine whether or not a
strike is an unfair labor practice one. Thus, it has been con-
cluded that such a strike exists where unfair labor practices
were a ‘‘contributing cause,’’ Larend Leisurelies v. NLRB,
523 F.2d 814, 820 (6th Cir. 1975); NLRB v. Pope Mainte-
nance Corp., 573 F.2d 898, 905 (5th Cir. 1978); NLRB v.
Colonial Haven Nursing Home, 542 F.2d 691, 704 (7th Cir.
1976); Massachusetts Coastal Sea Foods, 293 NLRB 496
(1989); or a ‘‘contributing factor,’’ I. W. Corp., 239 NLRB
478, 478 (1978); or ‘‘a proximate cause,’’ Newport News
Shipbuilding Co. v. NLRB, 602 F.2d 73, 78 (4th Cir. 1978);
or ‘‘one of the operative causes,’’ NLRB v. Wichita Tele-
vision Corp., 277 F.2d 579, 584 (10th Cir. 1960), cert. de-
nied 364 U.S. 871 (1960); or, ‘‘one of the reasons,’’ NLRB
v. West Coast Casket Co., 205 F.2d 902, 907 (9th Cir. 1953);
or ‘‘one of the causes,’’ NLRB v. Milco, Inc., 388 F.2d 133,
139 (2d Cir. 1968); or ‘‘had anything to do with causing a
strike.’’ NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d
Cir. 1972), cert. denied 409 U.S. 856 (1972). But, regardless
of the precise formulation of the standard in any particular
case, all of them express the same basic point: an unfair
labor practice strike exists ‘‘if an unfair labor practice had
anything to do with causing the strike.’’ Teamsters Local 662
v. NLRB, 302 F.2d 908, 911 (D.C. Cir. 1962), cert. denied
371 U.S. 827 (1962).
In making this determination, it is not essential to con-
clude that the strike would not have occurred but for com-
mission of the unfair labor practices. ‘‘Exclusive adherence
to a ‘but for’ test as the only method of analyzing causation
would likely prove as unsatisfactory in the labor field as it
has in the torts field.’’ Head Division, AMF v. NLRB, 593
F.2d 972, 982 fn. 19 (10th Cir. 1979). That is, the method-
ology for analyzing strike causation is not guided by the ana-
lytical standard enunciated in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Recently, this very point was made quite
specifically in Northern Wire Corp. v. NLRB, 887 F.2d 1313
(7th Cir. 1989):
Wright Line does not provide the applicable standard in
assessing strike causation. The dispositive question is
whether the employees, in deciding to go on strike,
were motivated in part by the unfair labor practices
committed by their employer, not whether, without that
motivation, the employees might have struck for some
other reason.
Consequently, regardless of whether a strike might have oc-
curred on October 1 even had all of the requested relevant
information earlier been provided to the Union, Respondent’s
declaration of impasse at a time when it had not supplied all
of it can support the conclusion that the strike was an unfair
labor practice one, if the absence of that information ‘‘had
anything to do with causing the strike,’’ Teamsters Local 662
v. NLRB, supra, despite the fact that ‘‘there were also other
causes of the strike.’’ NLRB v. Fitzgerald Mills Corp., 313
747DECKER COAL CO.
24 It is worth pointing out that even had the employees voted on September
26 to strike over economic issues, that would not necessarily mean that the
strike could not be an unfair labor practice one. It is well settled that an eco-
nomic strike can be converted to an unfair labor practice one where, after it
has begun, the employer commits unfair labor practices that inherently tend
to prolong it. Of course, a declaration of impasse where none exists, followed
by unilateral changes in employment terms, would tend inherently to prolong,
if not obstruct completely, the negotiating process. See, e.g., Powell Electrical
Mfg. Co., 287 NLRB 969 (1987). By such conduct, any previously declared
economic strike would be converted to an unfair labor practice strike.
25 Nor is a predetermined intention to strike on October 1 shown by the fact
that a group of women and children picketed, with professionally lettered
signs, at the main entrance during the afternoon of September 30. The testi-
mony of the Union’s officials that they had not authorized that activity, and
had not been aware of it while it was in progress, is not facially implausible
in a society and era when individuals have not been the least reluctant to speak
out and engage in direct action, without regard to authorization or approval
by the organizations to which they belong. Beyond that, there is nothing inher-
ently inconsistent between publicizing a dispute through informational pick-
eting and continuing to work while the negotiating process runs its course.
F.2d 260, 269 (2d Cir. 1963), cert. denied 375 U.S. 834
(1963).
In order to make this causation determination, the Board
and the courts of appeals have paid special attention to state-
ments made during negotiating sessions, Northern Wire
Corp. v. NLRB, supra, and during strike vote meetings. North
American Coal Corp., 289 NLRB 788 (1988); cf. Burner
Systems International, 273 NLRB 954 fn. 1 (1984). In its
brief, Respondent places great emphasis on the events of the
employee meeting and strike vote conducted on September
26. However, in determining causation of the strike in this
case, the events of that meeting are of little assistance. For,
at the time of that meeting, Respondent had not yet declared
an impasse by making a last and final offer. Nor, so far as
the evidence shows, had there been any indication that em-
ployees could anticipate that Respondent would do so 4 days
after their meeting. Consequently, at the time of their elec-
tion, the employees had no basis for even suspecting that Re-
spondent would decide to engage in unfair labor practices.
Furthermore, at that meeting the employees did not vote
to actually go on strike. Instead, they voted to support any
strike that their executive board made the ultimate decision
to call.24 Indeed, this fact significantly undermines the argu-
ment that a strike would have occurred at 12:01 a.m. on Oc-
tober 1 without regard to the status of Respondent’s answers
to the information requests. As the vote on September 26
demonstrates, the majority of the unit employees were pre-
pared to support a strike were one to be called. Con-
sequently, if it truly did intend on that date to strike on Octo-
ber 1, as Respondent argues should be found, then the Union
had nothing to gain by concealing that intention from the
employees under the guise of a purported authorization mere-
ly to decide in the future whether or not a strike should be
called. That is, so far as the evidence establishes, the Union
would have received as much support from the employees
for either proposition.
None of the other events preceding the executive board
meeting on September 30 demonstrate an intention by the
Union to begin striking on October 1. The Union had long
abandoned its rigid ‘‘no contract, no work’’ policy. That fact
must have been obvious to Respondent from the fact that its
employees had continued working from 1983 to 1986 despite
the absence of a contract during that 3-year period. More
contemporaneously, at the time of Respondent’s last and
final offer, employees at Big Horn were continuing to work
even though no agreement had been reached there for a new
contract.
Nor is the conclusion that a strike was definitely planned
for October 1 mandated by Trumka’s telegram and by the re-
moval of personal items from Respondent’s premises. These
were not unprecedented events. A similar telegram had been
sent to Respondent by Trumka in connection with the 1983–
1986 negotiations. Likewise, employees also had removed
personal belongings at one point during the course of those
negotiations. But no strike ever occurred then. As Luth
pointed out to Ruff when she turned in her powder keys at
shift’s end on September 30, the keys would be picked up
the following day if no strike occurred.
In contending that a strike was inevitable on October 1,
Respondent places special emphasis on various statements to
that effect by employees and by the Union’s own officials,
especially by Deeds. Yet, for the most part, these statements
appeared to have been no more than individual opinions con-
cerning the course that would have to be pursued to secure
the goals that the Union sought in negotiations. Not one of
these statements show that, even if a strike did occur ulti-
mately, it was planned for October 1. In fact, none of them
show that the Union intended to call a strike before it re-
ceived, and had the opportunity to examine, the information
that it had requested of Respondent. In the final analysis,
even if it truly would have taken a strike for the Union to
achieve its negotiating goals, there is no evidence that the
Union actually would have pursued those goals to that
point—would not, as it did concerning health benefits in
1986 and as it did regarding its cotrustee proposal in the cur-
rent negotiations, have backed away from its stated objec-
tives and avoided a strike by lowering its sights and accept-
ing the best deal that it could attain from Respondent without
a strike.25
Although it does not make the precise argument, Respond-
ent’s actual arguments in this area come very close to assert-
ing that it was privileged to declare impasse simply because
it anticipated that a strike was going to be called by the
Union when the contract expired. Yet, no case has coun-
tenanced, in effect, retaliatory declaration of impasse because
of anticipation that employees were going to strike. Whether
a strike occurs, parties are obliged to continue negotiating
until final agreement or genuine impasse is reached. They are
not free to rush to impasse simply so they can beat com-
mencement of a strike by their employees.
Of course, there are situations where employee statements
and strike preparations are entitled to great weight in deter-
mining strike causation—where they are determinative, or at
least entitled to significant weight, in evaluating the true
cause of a strike. However, such evidence is but secondary
and is entitled to consideration only where there is no reli-
able direct evidence of the reason that a strike was com-
menced. That is not the situation in this case. Here, there is
direct evidence concerning what was discussed with the ne-
gotiating committee after Respondent left the September 30
negotiating session and, later that same day, during the exec-
utive board meeting which produced the actual decision to
strike. In that respect, whether Boyens alone did or did not
make the decision to actually call the strike is not the crucial
issue. What is crucial is that, in both meetings, there was no
dissent from the proposition that a strike had to be called—
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Accordingly, there is no force to the argument that this could not be an
unfair labor practice strike, because the strike decision was motivated simply
by fear of layoffs. It is undisputed that the Union intended to file unfair labor
practice charges, regardless of whether or not there was a decision to strike.
Moreover, that fear of ultimate layoffs was generated by suspicion that Re-
spondent would implement the terms of its last and final offer—a suspicion
that proved well-founded in light of subsequent events.
and that it had to be called, in the view of those in attend-
ance, because Respondent was declaring an illegal impasse
that opened the door to unilateral implementation of the
terms of its last and final offer that, in turn, could lead ulti-
mately to layoffs of unit employees as a result of subcon-
tracting permitted under the terms of that last and final
offer.26
Respondent argues that the testimony concerning Boyens’
remarks to the executive board should be viewed with skep-
ticism. Yet, despite some discrepancies about everything that
had been said during that meeting, the testimony was gen-
erally consistent on the point that Boyens singled out Re-
spondent’s failure to complete submitting all of the requested
information as a cause for striking. Moreover, that testimony
is supported by other evidence that, itself, provides an infer-
ence that Boyens likely would have complained to the execu-
tive board about the lack of information. The Union repeat-
edly had requested production of the unsupplied information
during negotiating sessions. It had complained to Houston
about its inability to negotiate properly without it. In view
of these facts, it cannot be said that lack of all the requested
information was a subject that the Union’s negotiators took
lightly. Furthermore, before the executive board meeting,
Blitzstein and, then, Boyens each prepared a list, enumer-
ating the items of unprovided information. Surely, they
would not have engaged in such an endeavor, during the rel-
atively short time available to them before the executive
board meeting, if they did not regard the missing information
as being important.
The most compelling factor, however, is Boyens’ own
contemporaneous reaction to Houston’s announcement that
he was making a last and final offer. He immediately pro-
tested the lack of all requested information. Having done so,
at the very time of Houston’s departure from negotiations, it
hardly is likely that he would have ignored that very subject
when thereafter addressing the executive board. Further, hav-
ing accused Houston directly of committing an unfair labor
practice by making a last and final offer before supplying all
the requested information, it is unlikely that Boyens would
not have repeated that identical sentiment in his remarks to
the executive board. Nor is it likely that the subject was
viewed any the less seriously during that meeting than had
been the view of it expressed directly to Houston by Boyens,
as the negotiating session was concluding earlier that day. In
sum, a preponderance of the evidence supports the testimony
that Respondent’s failure to have provided all requested in-
formation was a topic, perhaps the principal one considered,
in reaching the ultimate decision to go on strike at 12:01
a.m. on October 1.
Neither the absence of reference to unfair labor practices
on most picket signs nor the absence of specific reference to
lack of information in post-September 30 statements by
union officials refutes this direct evidence that the lack of in-
formation was, at least, a cause of the strike. Even if there
had been a delay in erecting pickets signs bearing unfair
labor practices legends, that would show no more than that
the Union had not foreseen that it needed to prepare signs
in advance protesting that type of conduct—that it did not
anticipate that Respondent would violate the Act. Moreover,
picket sign legends and statements to reporters are aimed at
generating the broadest possible support for a labor organiza-
tion’s strike activity. They are a form of advertising and, as
is true of advertising generally, a cerebral, as opposed to an
emotional, appeal is not necessarily the most effective ap-
proach in evoking a favorable response and garnering sup-
port. More specifically although severe, Respondent’s unfair
labor practices are not ‘‘glitzy’’ when viewed from the per-
spective of public perception. As the length of the hearing,
the briefs and this decision illustrate, an understanding of
them is not easily reduced to a picket sign legend nor even
to a description in a necessarily abbreviated interview.
In sum, the poststrike events must be accorded the same
weight as their prestrike relatives. In proper circumstances,
the cause for a strike can be inferred from evidence such as
public characterizations of a strike, Massachusetts Coastal
Sea Foods, supra, 293 NLRB 496; Head Division, AMF v.
NLRB, supra, 593 F.2d at 981 fn. 18; picket sign legends,
Burner Systems International, supra; lapse of time in filing
unfair labor practice charges or dismissal of most charges
that are filed, Northern Wire Corp. v. NLRB, supra; inability
of union officers to explain the purported unfair labor prac-
tices that assertedly generated charges that can be character-
ized as mundane in nature, Ibid; recognition by the bar-
gaining agent of strategic advantage in portraying a work
stoppage as motivated by unfair labor practices, North Amer-
ican Coal Corp., supra, 289 NLRB 788 fn. 4; and, expecta-
tions that a strike might help to settle outstanding issues.
NLRB v. My Store, Inc., 345 F.2d 494, 498 (7th Cir. 1965),
cert. denied 382 U.S. 927 (1965). But these secondary indi-
cia do not serve to refute direct evidence, where it exists, of
a strike’s cause(s).
Nevertheless, I have considered both pre- and poststrike
events in considering the type of strike that occurred in this
case. While some may have been phrased or handled better,
viewed from the perspective of Monday morning quarter-
backing, they do not—individually or collectively—nullify or
refute the unfair labor practice character of the strike shown
by the credible direct evidence of the events leading to its
commencement. Nor do any of them serve to remove the in-
herently prolonging effect on the strike of Respondent’s un-
lawful implementation of the terms of its last and final offer.
Therefore, I conclude that a preponderance of the evidence
establishes that the strike was an unfair labor practice one
from its inception at 12:01 a.m. on October 1 and that it re-
tained that character at all times thereafter.
It is settled that unfair labor practice strikers cannot be
permanently replaced, but instead must be offered immediate
and full reinstatement on submission of an unconditional ap-
plication to return to work. NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 379 fn. 5 (1967). A corollary to this principle
is that Section 8(a)(1) of the Act is violated whenever strik-
ers in that category are warned that they will be replaced
permanently if they do not return to work. See, e.g.,
Bozutto’s, Inc., 277 NLRB 977 fn. 3 (1985). Respondent did
the latter in October and failed to do the former in June
1988. By this conduct, Respondent violated Section 8(a)(1)
and Section 8(a)(3) and (1), respectively, of the Act.
749DECKER COAL CO.
27 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 objec-
tions to them shall be deemed waived for all purposes.
CONCLUSIONS OF LAW
Decker Coal Company committed unfair labor practices
affecting commerce by its refusal to process grievances after
expiration of its collective-bargaining contract and by declar-
ing impasse in negotiations and unilaterally implementing the
terms of its last and final offer at a time when there were
unanswered and only recently answered requests for relevant
information, in violation of Section 8(a)(5) and (1) of the
Act; by refusing to immediately reinstate strikers, whose
strike was caused at least in part by unfair labor practices,
in response to an unconditional offer to return to work, in
violation of Section 8(a)(3) and (1) of the Act; and, by
threatening to replace permanently strikers whose strike was
caused at least in part by unfair labor practices, in violation
of Section 8(a)(1) of the Act. However, it did not violate the
Act in connection with its efforts to supply information re-
quested by its employees’ bargaining agent. Moreover, while
I grant the motion to amend complaint with respect to the
warning that unfair labor practice strikers would be perma-
nently replaced if they did not report for work, I deny that
motion in all other respects.
REMEDY
Having found that Decker Coal Company engaged in cer-
tain unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and, further, that it be
ordered to take certain affirmative action to effectuate the
policies of the Act.
With respect to the latter, Decker Coal Company shall be
directed to bargain in good faith with United Mine Workers
of America until total agreement or a valid impasse is
reached. Moreover, it will be ordered to restore terms and
conditions of employment to levels prevailing in the 1986–
1987 collective-bargaining contract and to make whole em-
ployees for any lost wages or benefits incurred as a result
of the unilateral changes made in those terms and conditions
of employment on October 1, 1987, as prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with, to the ex-
tent appropriate, interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). Further, it shall be or-
dered to maintain those terms and conditions of employment
in effect until the parties have bargained to agreement or to
impasse.
In addition, Decker Coal Company shall be ordered to
offer the 80 employees named in the Order immediate and
full reinstatement to the positions to which they would have
been reinstated had they not been deprived of reinstatement
in June 1988, dismissing, if necessary, anyone who may be
occupying the positions to which they should have been rein-
stated. If any of those positions no longer exist, it shall be
ordered to reinstate the appropriate employees to substan-
tially equivalent positions without prejudice to their seniority
or other rights and privileges. It shall also be ordered to
make all of those employees whole for any loss of pay they
may have suffered because they were not immediately rein-
stated when they offered to return to work. Backpay shall be
computed on a quarterly basis, making deduction for interim
earnings, F. W. Woolworth Co., 90 NLRB 289 (1950), and
interest shall be paid on the amounts owing as computed in
New Horizons for the Retarded, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, Decker Coal Company, Big Horn Coun-
ty, Montana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing and failing to bargain in good faith with
United Mine Workers of America—as the exclusive rep-
resentative of employees in the appropriate unit of employees
at all pits of Decker Coal Company now or hereafter added,
who are engaged in production and maintenance at the Deck-
er, Montana coal mine, excluding guards, watchmen, office
clerical employees, engineering employees foremen, and su-
pervisors as defined in the Act—by premature impasse dec-
larations, by implementing last and final contract offers with-
out having reached a valid impasse, and by refusing to proc-
ess grievances because of the expiration of a collective-bar-
gaining contract.
(b) Failing and refusing to reinstate unfair labor practice
strikers after receiving their unconditional offers to return to
work, including:
Jim Aksamit Larry Kobielusz
Tom Allen Darryl Kurtz
Bob Allred Mary Lance
Duane Anderson Gay Laya
Ron Anderson Bobby Legerski
Ken Ballek Madonna Lyons
George Batt Raynard McKenzie
Larry Baumgartner Bud Madron
Marshal Bears Bob Marchant
Art Benton Dan Mest
Bill Biesterfeld Brent Moore
Bruce Bisbee Bill Morgareidge
Dave Blankenship Bruce Morrill
Bob Bond Clayton Morris
Leonard Bull Ken Mortensen
Dwight Castle Vic Mortensen
Buddy Chaffee Jack Murray
Bill Clark Jerry Noecker
Lawrence Conner Jerry O’Daniels
Pete Crook Jim Palser
Roger Duin Ernie Roberts
George Eisele Brad Robinson
John Eychanor Ron Rosenlund
Dalton Gaynor Jim Schutte
John Gazdik Merle Smith
Richard Glantz Tom Smith
Ken Greer Dennis Songer
Rick Hanslip Gene Songer
Madge Herden Derald Stiles
Dick Herman Ray Swanby
Al Herrera George Taylor
Gary Hinz Gerry Thompson
Rod Howell Larry Tibbets
Dale Jacobson Steve Torbet
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Dan Johnson Rodger Wagner
Greg Johnston Leroy Westika
Marc Ketcham Dick Williams
Jim Kibler Karen Woodard
Gary King Jerry Woodward
Alan Kobielusz Don Ziegler
(c) Telling unfair labor practice strikers that they will be
permanently replaced if they do not report for work by a cer-
tain time.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Bargain collectively in good faith with United Mine
Workers of America, as the exclusive representative of the
employees in the bargaining unit set forth in subsection 1(a)
above, and embody any understanding reached in a signed
agreement.
(b) Restore employment terms to the levels set forth in the
1986–1987 collective-bargaining contract with United Mine
Workers of America and maintain them until such time as
the parties have bargained in good faith and reached agree-
ment, or alternatively, until a valid impasse is reached.
(c) Make whole all employees, for any losses they may
have sustained by reason of the implementation of unilateral
changes in employment terms on October 1, 1987, in the
manner set forth in the remedy section of this decision.
(d) Offer immediate and full reinstatement to the 80 em-
ployees named in subsection 1(b) above to the positions to
which they would have been reinstated had their offers to re-
turn to work not been refused, dismissing, if necessary, any-
one who may be occupying those positions or, if any of
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
they may have suffered as a result of the discrimination they
suffered, in the manner set forth in the remedy section of this
decision.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its Big Horn County, Montana mines copies of
the attached notice marked ‘‘Appendix.’’28 Copies of the no-
tice, on forms provided by the Regional Director for Region
27, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not found.