Drummond Coal Co., Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1986

277 N.L.R.B. 1618 (N.L.R.B. 1986)

1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drummond Coal Company, Inc. and District 20,
United , Mine Workers of America. Case 10-
CA-19565
13 January 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 24 April 1984 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief and cross-exceptions with a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record' in light of the exceptions and briefs and
has decided to affirm the judge's rulings, findings,2
and conclusions as modified and to adopt the rec-
ommended Order.
The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by ceasing
operation of its Jasper, Alabama central repair shop
and by laying off the shop employees without
notice to or consultation with the Union concern-
ing the cessation of operations and its effects. The
specific issue litigated at the hearing, however, was
whether the Respondent violated Section 8(a)(5)
and (1) by transferring the repair work previously
done at the Jasper shop to onsite mine repair shops
and closing the Jasper shop without notice to or
consultation with the Union over this decision and
its effects. Although we agree with the judge that
the complaint should be dismissed, we do so only
for the reasons set forth below.
Since the Respondent acquired the Jasper shop
in April 1976, it had used the shop to repair vari-
ous equipment used in its coal mining operations.
This included mobile equipment such as bulldozers
and front-end loaders and other equipment includ-
ing drills, draglines, and mining buckets. The Re-
i On 29 November 1984 the Board issued a Notice to Show Cause
why it should not take administrative notice pursuant to Rule 201 of the
Federal Rules of Evidence of the arbitral award of Roger C Williams,
issued on 3 February 1984 after the close of the hearing, in reviewing the
exceptions to the judge's decision On 12 December 1984 the Charging
Party fled a response which opposed the Board's taking of administrative
notice We find that the Charging Party's opposition provides no basis
for not admitting the arbitral award into evidence Accordingly, we take
administrative notice of the award pursuant to Rule 201
2 The Charging Party has excepted to some of the judge's credibility
findings The, Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence 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 examined the record and find no basis for re-
versing the findings
spondent sent this equipment in for repair from its
numerous coal mines located'' in the area. In 1981
the Respondent closed its nearby Carbon Hill shop
and transferred its machining equipment to the
Jasper shop. This enabled the Jasper shop also to
construct mining shovels.
At approximately the same time it purchased the
Jasper shop, however, the Respondent began con-
verting its inventory of coal mining machinery
over to larger, more efficient equipment while
phasing out its smaller equipment. It replaced its 4-
and 6-yard coal mining buckets with buckets rang-
ing in size from 78 to 115 yards. It also replaced its
bulldozers with two significantly larger models.
Repairing the new equipment at offsite repair
shops such as the Jasper shop presented several
problems. Among these were that the buckets were
too large to be transported over the public high-
ways and that the Jasper shop was not set up to
handle the larger model bulldozers. For these and
other reasons, such as the time lost due to trans-
porting the broken equipment between the mine
and the offsite repair shop, the Respondent began
constructing repair shops at each of its mine sites.
During this same period the Respondent began
phasing out its offsite repair shops. In 1976 it
closed another shop located in downtown Jasper,
and in 1981 it closed the Eastern Maintenance
Shop in Arkadelphia and the Carbon Hill shop.
As the Respondent converted its mining equip-
ment and changed the location of its repair oper-
ations, it also began phasing out and closing down
several of its mines. After operating at one time up
to 38 mines, it closed all but 19, and in August
1982 it closed approximately 9 more mines which
the Jasper shop had serviced. Prior to this shut-
down, the Jasper shop had operated three 8-hour
shifts a day, 5 days a week, and one shift on Satur-
days. By the beginning of 1983, the Jasper shop
was operating three shifts of only 7 hours and 15
minutes a day, 4 days a week, and no shifts on Sat-
urdays.
In order to reduce idle time at the shop the Re-
spondent eventually began assigning make-work
jobs. These included painting the shop facility and
machinery and cleaning the ' steel yard and scrap
area adjacent to the shop. The shop's welders and
mechanics performed this work along with the
shop's one laborer. The Respondent also directed
the shop employees to work on broken equipment
in the idle equipment yard and repair other ma-
chinery it brought in of types they had never
before repaired.
Finally, on 29 June 1983, the Respondent closed
the Jasper shop and laid off 14 of the facility's 16
employees. It also decided to remove the shop's
277 NLRB No. 177
DRUMMOND COAL COMPANY, INC. 1619
repair machinery , transferring some to its onsite
mine repair shops, while selling the remainder.
We find that the Respondent's decision to relo-
cate its repair services to onsite mine repair shops
and to close the Jasper shop turned not on labor
costs, but instead on a "change in the nature and
direction of a significant facet of its business." Otis
Elevator Co., 269 NLRB 891 (1984). Accordingly,
the Respondent 's managerial decision is of the sort
which is at the core of entrepreneurial control and
lies outside the scope of Section 8(d) of the Act.3
The Respondent's decision to transfer the repair
work previously done at the Jasper repair shop and
to close the Jasper shop was based on a chain of
events which dramatically changed the nature of
its repair operations. Technological developments
which permitted the construction of larger, more
efficient coal mining machinery set this chain in
motion. As the Respondent phased in this new ma-
chinery and phased out its older, smaller machin-
ery, the flow of repair work from the Respondent's
mines to its offsite repair shops such as the Jasper
shop began to diminish. These shops could not
repair the new equipment. The offsite repair shops
lost even more work when the Respondent then
built onsite repair shops at each of its mines to
repair the new as well as the old machinery. The
flow of repair work to the Jasper shop,was eventu-
ally reduced to a trickle when in August 1982 the
Respondent closed nine mines the Jasper shop had
serviced. Shortly thereafter, the Respondent was
required to issue make-work assignments in order
to maintain some utilization of the shop's crew.
These facts demonstrate that the Respondent's
decision to close the Jasper shop and transfer work
turned on the absence of significant offsite repair
work caused primarily by a fundamental change in
the nature and direction of its operations. It is clear
that the Respondent's decision did not turn on
labor costs, although that factor may have been a
consideration in its decision-making process. Thus,
the Respondent's decision was excluded from the
area of bargaining encompassed by Section 8(d).4
Accordingly, the Respondent was not compelled
by Section 8(a)(5) to bargain with the Union con-
Member Babson agrees with this conclusion because it is consistent
with the Supreme Court's opinion in First National Maintenance Corp v.
NLRB, 452 U S 666 (1981), and because it is consistent with any of the
views expressed in Otis Elevator
4 Member Dennis agrees that the Respondent had no duty to bargain
with the Union based on the analysis set forth in her concurring opinion
in Otis Elevator, above. The factors underlying the decision-to close the
Jasper facility and transfer its remaining repair work to the Respondent's
onsite shops-were wholly outside the Union's control, as the Union was
in no "position to lend assistance or offer concessions that reasonably
could [have] affect[ed] . . the employer's decision " Id at 897.
cerning its decision to transfer repair work, close
the Jasper shop, and lay off the shop employees.5
The remaining issue is whether the Respondent
violated Section 8(a)(5) and (1) by failing to bar-
gain with the Union over the "effects" of its deci-
sion to transfer its repair services and close the
Jasper shop. We agree with the judge that deferral
of this issue to the arbitral award of David L.
Beckman is appropriate.
After the shop's closure on 29 June 1983, the
Union filed a grievance on behalf of all shop em-
ployees which alleged that the Respondent violated
article XVII, section (c), of the parties' collective-
bargaining agreement by failing to provide the
Union notice 24 hours prior to the closure.6 The
parties were unable to resolve the grievance, and
pursuant to the parties' contract7 a hearing was
held on 30 August 1983 before Arbitrator Beckman
to resolve the following issue: "What is the proper
remedy, if any, in a situation in which a company
sells the shop equipment and closes the shop prior
to holding the Article XVII, Section (c) 24-hour
meeting with the mine committee?"
On 30 September 1983 Arbitrator Beckman
issued his award which denied the Union's griev-
ance in part and sustained it in part . The award
5 The judge concluded that it was appropriate to defer this issue to the
arbitral award of George V Eyraud Jr . dated 8 September 1983 and the
arbitral proceeding before Roger C Williams As provided at fn I
above, the Board has taken administrative notice of Arbitrator Williams'
award, which issued after the hearing closed The grievances before both
arbitrators raised the issue of whether the Respondent had engaged in
subcontracting forbidden by the parties ' labor contract in closing the
Jasper shop . As explained below, we find that neither arbitral award con-
sidered the merits of the grievance or the substantive aspects of the case
relating to a possible unfair labor practice Accordingly , deferral here is
inappropriate.
Contrary to the judge, we find no ambiguity regarding whether Arbi-
trator Eyraud reached the merits of the grievance The arbitral award of
Eyraud explicitly dismissed the grievance because it was untimely, while
further providing that it was therefore "not necessary" to "rule on the
merits of the grievance " Furthermore , because the Williams' award
denied the grievance based on finding the Eyraud award binding under
principles of res judicata, the Williams award necessarily also failed to
reach the merits of the grievance
When procedural obstacles prevent the parties from resolving their dis-
putes on the merits through the grievance -arbitration process , the parties'
dispute resolution mechanism fails to provide the basis for Board deferral
because in such situations there clearly would be no consideration of the
substantive aspects of the case relating to a possible unfair labor practice
Based on this principle the Board traditionally has required in cases in-
volving Collyer deferral (Callyer Insulated Wire, 192 NLRB 837 (1971))
that the parties waive any timeliness provisions of the grievance-arbitra-
tion clauses of their collective -bargaining agreement See, e g , United
Technologies Corp., 268 NLRB 557, 560 fn 22 (1984) Accordingly, we
find that deferral to the Eyraud and Williams awards would not further
the purposes of the Act
6 Art XVII, sec (c), states in pertinent part:
In all cases where the working force is to be reduced or realigned,
management shall meet with the mine committee at least 24 hours in
advance and review the available jobs and the individuals to be laid
off, retained or realigned
7 Art. XXIII, sec (d), of the parties' contract provides that in the
event the parties are unable to settle a grievance , it shall be submitted to
final and binding arbitration
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held that the main purpose of the 24-hour notice
provision was to enable the Union timely to pre-
pare itself to meet with the Respondent for the
purpose of assisting the laid-off workers. The
award further held that the parties did not intend
automatically to penalize the Respondent monetari-
ly if it failed to give the intended notice. Because
the Union and the Respondent had in fact easily
handled all the concerns of the few laid-off work-
ers involved, including the filling out of recall
forms, the award held that no rights were lost as a
result of the Respondent's failure to provide notice
of. the closure. Thus, no damages were awarded
pursuant to the 24-hour notice provision. However,
the award did order, pursuant to the contract's re-
porting pay provision," that the Respondent pro-
vide 4 hours' pay to all employees who reported
for the second shift and were told there was no
work.9
Applying the standards of Olin Corp., 268 NLRB
573 (1984), we find that the arbitrator adequately
considered the unfair labor practice at issue here.
First, it is clear that the,contractual and statutory
issues are factually parallel. It is apparent that the
parties have, through article XVII, section (c), of
their contract, mutually agreed on the advance
notice required of the Respondent where effects
bargaining over layoffs is envisioned. The griev-
ance -ruled on by the arbitrator specifically raised
the issue of the Respondent's obligation under arti-
cle XVII, section (c), to provide the Union ad-
vance notice for effects bargaining over the Jasper
shop 's closure . This factual question is coextensive
with those that would be considered by the Board
in a'decision on the statutory question-i.e., wheth-
er the Respondent complied with the parties'
agreed-upon arrangement for effects bargaining
over layoffs. We also find that the arbitrator was
presented generally with the facts relevant to re-
solving the unfair labor practice issue.
With respect to whether the arbitral proceedings
complied with the standards set forth in Spielberg
Mfg. Co., 112 NLRB 1080 (1955), it is noted that it
is the party seeking to have the Board reject defer-
ral and consider the merits of a given case who
carries the burden of affirmatively demonstrating
the defects in the arbitral process or award-10 In
8 The reporting pay provision , art IX, sec (c), states in pertinent part
Unless notified not to report, when an Employee reports for work at
his usual starting time, he shall be entitled to four (4) hours' pay
whether or not the operation works the full four hours , . Notifi-
cation of Employees not to report means reasonable efforts by man-
agement to communicate with the Employees
The award held that neither the first- nor third-shift workers sus-
tained any compensable damages , the former because the shop closed ater
the end of their shift and the latter because they were timely notified not
to report
10 Olin Corp, supra at 574
this regard, only the Union has excepted to this
aspect of the judge's decision and it has failed even
to allege that the arbitral proceedings or award did
not meet such standards. Accordingly, we shall
defer to the grievance arbitration award and dis-
miss the complaint in its entirety.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Larry P. Rothman, Esq., for the General Counsel.
Harry L. Hopkins, Esq. (Lance, Simpson, Robinson &
Somerville), of Birmingham , Alabama, for the Re-
spondent.
Frederick T. Kuykendall III, Esq. (Cooper, Mitch & Craw-
ford), of Birmingham , Alabama, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HOWARD I . GROSSMAN, Administrative Law Judge.
The original charge was filed on September 12, 1983,1
by District 20, United Mine Workers of America (the
Charging Party or the Union). The amended charge al-
leges that, on about June 29, Drummond Coal Co., Inc.
(Respondent or the Company) closed its central shop
and subcontracted the balance of its maintenance work
without negotiating with the Union about its decision to
close and to subcontract.
A complaint issued on November 15 alleging that the
Company ceased operations of its central shop in Jasper,
Alabama, about June 29, and laid off a majority of the
employees therein, without notice to or consultation with
the Union concerning the cessation or the effects thereof
on the employees. Such conduct, the complaint alleges,
was violative of Section 8(a)(5) and ( 1) of the National
Labor Relations Act.
A hearing was conducted before me on this matter in
Birmingham, Alabama, on December 22 and 23, and
briefs were thereafter submitted by the General Counsel,
the Union, and the Company. Subsequent thereto, I di-
rected the parties to submit supplemental briefs concern-
ing the impact upon this proceeding, if any, of the
Board's Decision and Order in United Technologies Corp.,
268 NLRB 557 (1984), and in Olin Corp., 268 NLRB 573
(1984). The General Counsel and Respondent responded
with supplemental briefs. Upon the entire record, includ-
ing the aforesaid briefs and supplemental briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Alabama corporation with an office
and place of business at Jasper , Alabama, where it is en-
1 All dates are in 1983 unless otherwise indicated.
DRUMMOND COAL COMPANY, INC. 1621
gaged in the mining of coal. During the calendar year
preceding issuance of the complaint, a representative
period, Respondent sold and shipped, from its Jasper,
Alabama facility goods valued in excess of $50,000 di-
rectly to customers located outside the State of Alabama.
The pleadings establish and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contractual Relationship
1. The appropriate unit
The parties have had a contractual relationship for
many years and are currently signatories to the National
Bituminous Coal Wage Agreement of 1981 (the Contract
or the Agreement). The complaint alleges the appropri-
ate unit to be all Respondent's classified employees at its
Jasper, Alabama central shop. Respondent acquired this
shop by purchase of another coal company in 1976, and
the Union thereafter presented authorization cards to the
Company. The contract defines its "scope and coverage"
in terms of an overall unit including all of the Company's
mining and support operations at various locations.2 Al-
though the General Counsel initially suggested that the
employees at the Jasper central shop constituted a dis-
crete bargaining unit, the contract has what amounts to
an accretion clause,3 and the General Counsel did not
dispute Respondent's contention that the Jasper employ-
ees were accreted into the overall unit.
2. The grievance and arbitration process
The Agreement has a three-step grievance procedure,
followed by arbitration. Settlements during the grievance
procedure are final and binding, as is the arbitrator's de-
cision (G.C. Exh. 4, sec. XXIII). The record contains nu-
merous instances of arbitration of disputes arising under
the contract.
2 Art 1,A,(a) of the Agreement reads in pertinent part as follows-
"The production of coal, including removal of overburden and coal
waste, preparation , processing and cleaning of coal and transportation of
coal . repair and maintenance work nomally performed at the mine site
or at a central shop of the Employer . and work customarily related to
all of the above shall be performed by classified employees of the Em-
ployer covered by and in accordance with the terms of this Agreement
[emphasis added]." (G C. Exh 4.)
3 Art 1,A,(f) of the Agreement states in relevant part "[T]he Employ-
ers agree that this Agreement covers the operation of all the coal lands,
coal producing , and coal preparation facilities owned at the date of
this Agreement, or acquired during its term which may hereafter ... be
put into production or use. This section will immediately apply to any
new operations upon the Union's recognition, certification, or otherwise
properly obtaining bargaining rights (Emphasis added )
B. The Central Shop Grievances and Arbitrations
1. The proceeding before Arbitrator George V.
Eyraud Jr.
On July 25 or 26,4 the employees of the central shop
filed a grievance protesting the contracting out of main-
tenance and repair work "normally and customarily"
performed by them. The dispute was not settled during
the grievance process and was heard on September 1 and
2 by Arbitrator George V. Eyraud Jr. Fourteen wit-
nesses testified, and the transcript of the hearing contains
668 pages (G.C. Exhs. 2(a) and (b)).
In his opening statement, the union representative
stated that the central shop was closed, the equipment
sold, and that all but two employees had been laid off.
He argued that the Company had violated the contract-
ing and subcontracting article of the contracts He also
contended that the Company had breached the Agree-
ment by failing to give the required 24-hour notice prior
to the layoffs.6 Further, the union representative argued
that the filing of the grievance was not untimely' be-
cause of the Company's failure to give the 24-hour
notice, and because the Company was engaging in a con-
tinuing violation of the contract, with 16 grievances
filed, 12 of which were awaiting arbitration.
The company representative argued that the grievance
was procedurally defective because it was not filed
within 10 days of June 29, when the central shop was
closed and the employees laid off. Substantively, the
Company contended that it had not violated the provi-
sion against subcontracting, because it did not own the
equipment which it had just sold. Therefore, its action
fell within the equipment exception to the rule against
subcontracting.8 The company representative also testi-
fied that the shop was closed because of the "slump" in
the coal business and the closing of various mines.
Evidence adduced at the hearing showed that the
Company posted a notice on June 29 stating that the
shop would close at 2:15 p.m., and that the shop equip-
ment had been sold. The Company admitted that it had
16 jobs on hand requiring machining work at the time of
the closure. The Company also agreed that it had con-
tracted out work between June 29 and July 25 which
4 The date of the filing of the grievance is in dispute . Arbitrator
Eyraud stated that it was July 26, but the Union averred in a later pro-
ceeding before another arbitrator that it was July 25
5 As relevant , art 1,A ,(g),(2) of the contract reads as follows: "(2)
Repair and Maintenance Work-Repair and maintenance work customar-
ily performed by classified Employees at the mine or central shop shall
not be contracted out except ... (b) where the employer does not have
available equipment or regular employees (including laid-off employees at
the mine or central shop) with necessary skills available to perform the
work at the mine or Central Shop "
6 Art. XVII, sec. (c) of the Agreement reads in pertinent part as fol-
lows. "In all cases where the working force is to be reduced or realigned,
management shall meet with the mine committee at least 24 hours in ad-
vance and review the available jobs and the individuals to be laid off,
retained or realigned."
I Art . XXIII , sec (d) of the Agreement reads as follows "Any griev-
ance which is not filed by the aggrieved party within ten (10) working
days of the time when the employee reasonably should have known it,
shall be denied as untimely and not processed further."
8 Supra, in 5
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have been performed by central shop employees
had the necessary equipment been available.
Arbitrator Eyraud's award issued on September 8. He
held that the Company 's admission concerning the sub-
contracting of work between June 29 and July 25 did not
establish that it took place within 10 days of July 26,
when the grievance was filed. The arbitrator assessed
testimony of union witnesses to the effect that additional
violations took place on July 20 and concluded that the
evidence was insufficient to establish a violation. He
stated that the Company 's failure to meet with the mine
committee 24 hours before the layoffs may have warrant-
ed another grievance which was "not present" before
him. The conclusionary portion of the award reads as
follows:
[I]t is the ruling of this Arbitrator that the instant
grievance be dismissed for the following reasons:
1. It is untimely; and
2. Failure to prove an alleged violation of the
agreement.
For the above reasons, it is not necessary that the
Arbitrator rule on the merits of the grievance.
Grievance denied. [R. Exh. 29, p. 11.]
2. The proceeding before Arbitrator David L.
Beckman
An additional grievance was filed on behalf of the cen-
tral shop employees concerning the alleged June 29 clo-
sure. It requested payment for time lost because of the
Compnay's failure to give the 24-hour notice. This griev-
ance was not settled , and a hearing was held on August
30 before Arbitrator David L. Beckman.
The arbitrator 's award , issued on September 30, con-
sidered whether the negotiators of the contract intended
that the Company be penalized monetarily for failure to
give the mine committee 24-hour notice of the layoffs.
Arbitrator Beckman concluded that this was not the in-
tention of the negotiators . He also held that the rights of
the day-shift employees to be recalled, retained, or re-
aligned had not been damaged , and that they were,
therefore, not entitled to a monetary remedy. However,
second-shift employees who had not been notified not to
report were entitled to 4 hours of regular pay (R. Exh.
31).
3. The proceeding before Arbitrator Roger C.
Williams
On August 1, a third grievance was filed concerning
the central shop, alleging violation of the ban against
subcontracting in that work was moved from the central
shop on July 25 to another employer, the B & D Ma-
chine Shop . The grievance was not settled , and the case
was heard on November 4 before Artitrator Roger C.
Williams.9
In his opening statement , the union representative re-
ferred to alleged errors in Arbitrator Eyraud's decision,
particularly the holding the the prior grievance had not
been timely filed. The Union contended that the Compa-
9 The transcript of the hearing is contained in R Exh 2
ny's breach of the subcontracting clause was a "continu-
ous violation," and that the timeliness question was not a
real issue . With respect to the Company posting on June
29 that the shop was closed, the union representative
stated : "The shop is not closed, Mr. Arbitrator. The shop
has never been closed or was not even closed on June
29th."10
According to the Union, within a week after the "al-
leged sale" of equipment to B & D Machine Shop,
Drummond's central shop superintendent, Joseph Shores,
and two clerks had set up an office at B & D, doing es-
sentially the same thing that they were doing at the cen-
tral shop. The Company could not avail itself of the
"available equipment" exception to the subcontracting
ban, l i the Union argued; because it could rent such
equipment.
The Union also contended that the Company had vio-
lated the contractual ban against sublicensing of coal
lands,12 and renewed its objection to the Company's fail-
ure to give 24-hour notice of the layoffs.
The Union presented testimony in support of its con-
tentions, i.e., that the work which was remaining on June
29 was the normal and customary work of the central
shop employees, that Shores was supervising Drum-
mond's work at B & D, and that the Company still has
welding and utility equipment which would allow its em-
ployees to do their work. As a remedy, the Union asked
for "pay for all hours worked due to management violat-
ing our Contract." The "real issue," the Union contend-
ed in final argument, is whether "management can sell
the equipment and still remain in the business of repair
and maintenance and bypass the contract."
The Company disputed the Union's contentions and
asserted that the Union had not proved a violation of the
contract. The proceeding was simply a "rehash" of the
matter before Arbitrator Eyraud and was governed by
the principles of res judicata.
Arbitrator Williams had not - issued an award in this
matter at the time of the unfair labor practice hearing on
December 22 and 23.
C. The Unfair Labor Practice Hearing '
At the unfair labor practice hearing, evidence was pre-
sented on the following issues:
1. The contractual relationship between the parties.
2. Grievance and arbitration proceedings pursuant to
the contract.
io As noted above, on November 3, 1 day before the hearing before
Arbitrator Williams, the Union filed an amended charge with the Board
alleging that the Company closed its central shop on June 29 (G C Exh.
1(c)). The Union took the same position in the proceeding before Arbitra-
tor Eyraud
11 Supra, fn. 5
12 Art l,A,(h) of the Agreement reads as follow:
The Employers agree that they will not lease, sublease or license out
any coal lands ,' coal producing , or coal preparation facilities where
the purpose thereof is to avoid the application of this Agreement
Licensing out of coal mining operations on coal lands owned
or held under lease or sublease by any signatory operator hereto
shall not be permitted unless the licensing out does not cause or
result in the layoff of Employees of the Employer
DRUMMOND COAL COMPANY, INC
3. The nature of the appropriate unit, i.e ., the employ-
ees in the central shop only, or the entirety of employees
in the overall unit set forth in the Agreement.
4. Respondent 's closing down of repair shops, and
smaller mines , assertedly for economic reasons, and the
performance of onsite repair work at the larger mines.
5. The, asserted voluminous extent of Respondent's
routine subcontracting of repair and maintenance work.
6. The kind of work which was "customarily per-
formed" at the central shop , with the parties disagreeing
on the meaning of the contract language. i 3
7. The alleged reduced volume of work at the central
shop and consequent underutilization of capital assets.
8. The asserted "closing" of the Jasper central shop on
June 29, the sale of equipment to B & D Machine Shop,
and the layoffs of 15 out of 17 central shop employees
(R. Exh. 11).
9. Layoffs of other employees , the seniority system of
recall under the contract (paneling), and its application
to about 1100 employees in the overall unit.
10. The recall to work of two of the laid-off central
shop employees at other locations , and the positions of
the others on panels (R. Exh. 11).
11. The lack of notice to the Union concerning the
"closing."
12. The nature and extent of the work which was in-
complete at the time of the "closing."
13. The contracting out of the remaining repair work,
and later repair work to outside contractors including B
& D.
14. The postsale activities of former Central Shop Su-
perintendent Joseph Shores , with a new office at B & D
where he overlooks the quality of work contracted out
by Respondent to B & D .
15. Testimony of Shores that the work being done at
B & D would have been done by Respondent 's employ-
ees at the central shop absent the shutdown.
D. Positions of the Parties on the Substantive Issues
Citing Board and judicial authority, 14 the General
Counsel argues that Respondent 's shutdown of a portion
of its facility, the layoff of employees represented by a
union, the absence of any notice to the Union concerning
such actions , and the subcontracting of the work to out-
side contractors constitute a clear violation of Section
8(a)(5) and (1) of the Act. The General Counsel argues
that Respondent 's economic defense is insufficient as a
matter of law, characterizes the Company' s position on
customary work as "nonsense ," and notes that the Com-
pany's voluminous contracting out of repair work 'was
steadfastly opposed by the Union, utilizing the grievance
and arbitration machinery of the contract.
Respondent in essence argues that the General Coun-
sel's case is confused . Although there is nothing in the
complaint about subcontracting , the General Counsel's
la The General Counsel defined "customary work" in terms of the
process utilized to repair a particular product, i e., welding , assembly, etc
Respondent argued that the phrase refers to the kind ofproduct being re-
palled, rather than the process utilized in doing so
14 Fibreboard Paper Products Corp. v. NLRB, 379 U S. 203 (1964); Inter-
national Harvester Co, 236 NLRB 712 (1978); Marriott Corp., 264 NLRB
1369 (1982); and others
1623
case depends on it. According to the Company, there is
no Fibreboard15 or Marriott Corp ., 16 violation because in
this case there is a contract. Although repudiation of the
contract is a theoretical possibility , none is alleged. The
contract bans subcontracting in some circumstances and
allows it in others. The General Counsel 's subcontracting
theory depends on interpretation of the contract lan-
guage , i.e., whether the remaining work at the central
shop- was "normally" or "customarily" performed there,
and whether the Company had "available equipment."
The General ' Counsel did not prove that the remaining
work at the shop was "customarily" performed there. In
any event , the Company annually subcontracts $20-25
million in repair work and need not bargain about this
element of the status quo under applicable law. The
work subcontracted out of the Jasper central shop was
de minimis.
The appropriate unit is the overall unit stated in the
agreement, not the central shop unit alleged in the com-
plaint. There is nothing illegal in an employer 's transfer-
ring work "from one corner of the plant" to another,
and this is all that the Company did with its increase of
repair work at the mine sites concomitant with a reduc-
tion at the central shop. This transfer was made neces-
sary by economic realities which dictated the closing of
the smaller mines and the shops which served them and
the concentration on larger mines. The personnel layoffs
or transfers which accompanied these changes are cov-
ered in article XVII of the Agreement . t 7 Two of the 15
laid-off central shop employees have been recalled and
the others are on panels , pursuant to the Agreement.
E. Positions of the Parties on the Deferral Issue
In his supplemental brief, the General Counsel argues
that "deferral is inappropriate inasmuch as the contract
issues which were the subject of the three arbitrations
... are not factually parallel to the alleged unfair labor
practice, which asserts that Respondent unilaterally sub-
contracted the work of its Jasper central shop , closed the
shop, and laid off shop employees without prior notice
to or consultation with the Union ." Continuing with the
General Counsel 's argument, the issues before the arbi-
trators-which were different-included "the propriety
of Respondent 's decision to subcontract the work, the
appropriate remedy for Respondent 's failure to provide
the contractually required 24-hour notice to the Union
before laying off the shop employees , and a related case
concerning back pay for laid off shop employees."
The General Counsel further states that the "basis of
Eyraud's decision . . . was that the Union did not file
the grievance in a timely manner , and . . . failed to
properly allege that Respondent subcontracted the work
... prior to the shut down ." It was Respondent who
is Fibreboard Paper Products Corp., ibid
16 Marriott Corp, ibid
17 Art XVII of the Agreement is entitled "Seniority ," and sets forth
the procedures to be followed "where the working force is to be re-
duced" (id, sec . (b)) Topics covered in the art include realignment,
layoff, panels, panel custodians , the right to be recalled , recall of employ-
ees on layoff status, bidding , training for vacancies not filled by job bid-
ding, transfer to other mines of the employer, etc (G . C Exh 4)
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raised the timeliness defense , "thereby demonstrating its
unwillingness to resolve the issue through arbitration
notwithstanding time limitations , a requirement of defer-
ral." Further, Arbitrator Eyraud failed to address the
issue of absence of notice. Accordingly, the Eyraud
award is "palpably wrong."
The General Counsel further argues that United Tech-
nologies, supra, has "no effect" on the instant case be-
cause there are no allegations of violations of Section
8(a)(l) or (3) of the Act. However, the supplemental
brief also claims a "Section 8(a)(3)-type remedy" is ap-
propriate in the instant case with respect to the laid-off
employees.
The Company contends that the contractual dispute
and the unfair labor practice are "inextricably inter-
twined" and that Eyraud flatly held that the Union had
failed "to prove an alleged violation of the Agreement."
Accordingly , deferral is warranted , according to the
Company.
F. Legal Analysis
There is no doubt that the grievance, which led to the
Eyraud award , alleged violation of the contractual ban
against subcontracting out of repair work normally and
customarily performed by the central shop employees.
Although the unfair labor practice complaint speaks of a
cessation of operations, a central element in the General
Counsel 's case was the alleged illegality of the subcon-
tracting . It is obvious that cessation of operations would
not have occurred without the subcontracting, and I
conclude, contrary to the General Counsel, that these
issues are factually parallel.'
There is also no doubt that the conclusionary section
of the Eyraud award states that the Union had failed to
prove an alleged violation of a section of the contract,
obviously referring to the ban against subcontracting.
However, the award also states that the grievance was
untimely , and adds that, for these reasons-the failure to
prove a violation , and untimeliness-it was not necessary
to rule on the "merits of the grievance."
This language creates an element of ambiguity. Be-
cause of it, the award is susceptible to an interpretation
that the arbitrator did not consider the contractual issue.
On the other hand , the award also states that the Union
had failed to prove an alleged violation , leading to an
opposite inference . The matter is resolved by a reading
of the award, which shows that Arbitrator Eyraud did
consider the question of whether the ban against subcon-
tracting had been violated . "If the reasoning behind an
award is susceptible of two interpretations , one permissi-
ble and one impermissible , it is simply not true that the
award was `clearly repugnant' to the Act." Douglas Air-
craft Co v. NLRB, 609 F.2d 352 (9th Cir. 1979), enf,
denied 234 NLRB 578 (1978).
It would appear that the Union tried and failed to
prove illegal subcontracting within the 10-day period
prior to the filing of the grievance, the period of limita-
tion set forth in the contract . Although this period is
considerably shorter than the one in Section 10(b) of the
Act, the Union's position in the succeeding arbitrations
was that the Company's violation of the contract was a
continuing one, and it was still trying to prove a viola-
tion before Arbitrator Williams at the time of the unfair
labor practice hearing. Accordingly, the extent to which
Arbitrator Eyraud considered the 10-day limitation does
not detract from the adequacy of his award.
Indeed , I see no reason why the national policy favor-
ing voluntary arbitration of disputes should not require
that the parties abide by their own procedural agree-
ments, even though these may coincide with the Act. If
the parties freely choose to establish a 10-day instead of
a 6-month period of limitation , the Board 's deferral to
such an agreement could only encourage more rapid res-
olution of labor disputes ; there is nothing in such deferral
which is "clearly repugnant " to the Act.
With reference to the General Counsel's argument that
Arbitrator Eyraud did not consider the Company's fail-
ure to give the Union notice of the layoffs, the Union
separately grieved the Company's failure to abide by the
24-hour notice requirement in the contract . I conclude
that this issue is factually parallel with the complaint al-
legation in the unfair labor practice hearing, and Arbitra-
tor Beckman's award is described above.
Finally, about 6 weeks before the General Counsel and
the Union attempted to prove in an unfair labor practice
hearing that Arbitrator Eyraud's award was "palpably
wrong," the Union attempted to prove the same thing
before Arbitrator Williams. In doing so, it shifted its
ground on the issue of whether the central shop had
been closed on June 29. This matter is still pending. The
Union is thus attempting to correct what it believes is an
erroneous arbitral award-simultaneously, in two differ-
ent forums.
I conclude that the General Counsel has failed to dem-
onstrate that there are deficiencies in the awards of Arbi-
trators Eyraud and Beckman requiring the Board to
ignore those awards and subject the case to de novo
review . The contractual issues were factually parallel to
the unfair labor practice issues, the arbitrators were pre-
sented generally with the facts relevant to resolution of
the alleged unfair labor practice, and their awards are
susceptible to an interpretation consistent with the Act.
Olin Corp., supra.
This conclusion is buttressed by the fact that the
Union is continuing to arbitrate the issue, and the matter
is still pending before Arbitrator Williams. The latter
case has progressed one step further than the one in
United Technologies, supra, in which the grievance pro-
cess had been initiated but had not yet reached arbitra-
tion. It follows with even greater force that deferral to
the arbitration before Arbitrator Williams is appropri-
ate.i$
1s Although the General Counsel stated that United Technologies has
no effect on this case, it was in that case that the Board returned to the
policy of deferral to grievance -arbitration machinery in Sec. 8(a)(3) and
independent 8(a)(1) cases. The General Counsel ' s argument that there is
no 8(a)(3) allegation herein is somewhat diluted by his request for a "Sec-
tion 8(a)(3)-type" remedy. In any event, since Arbitrator Williams' award
has not yet issued , it can scarcely be called "repugnant" to the Act. Ac-
cordingly , even under the General Counsel 's reasoning , e g, that this is
simply an 8(a)(5) case , deferral to the still incomplete arbitration in the
matter before Arbitrator Williams is appropriate under applicable law
before or after United Technologies
DRUMMOND COAL COMPANY, INC.
I, therefore, conclude that it would best effectuate the
purposes and policies of the Act to defer this case to the
arbitral awards which have already issued and to the ar-
bitral proceeding before Arbitrator Williams.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed19
is If no exceptions are riled 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
ORDER
The complaint is dismissed in its entirety. 2 °
1625
Board and all objections to them shall be deemed waived for all pur-
poses,
20 Although jurisdiction was retained by the Board in United Technol-
ogies for the limited purpose of assessing the appropriateness of the arbi-
tral result, I see no necessity for this herein , since deferral to the two
existing awards is appropriate In light of my recommended Order, I
need not rule on Respondent 's motion to dismiss the complaint, as the
same is moot