Eddy Potash, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 552 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
Eddy Potash, Inc. and International Brotherhood of
Electrical Workers, Local 611, AFL–CIO and
United Steelworkers of America, AFL–CIO–CLC
and International Association of Machinists and
Aerospace Workers, Local Lodge 1265, AFL–
CIO. Cases 28–CA–13207, 28–CA–13218, and 28–
CA–13454
June 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On April 19, 1999, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel and Charging Parties United Steelworkers of
America and International Brotherhood of Electrical
Workers filed answering briefs, the Respondent filed a
reply brief, and the National Mining Association, as amicus
curiae, filed a brief in support of the Respondent.1 The
General Counsel and Charging Parties United Steelworkers
of America and International Brotherhood of Electrical
Workers also filed cross-exceptions and supporting briefs,
and the Respondent filed an answering brief.
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 decided to affirm
the judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified and set forth in full
below.2
In their cross-exceptions, the General Counsel and
Charging Parties United Steelworkers of America and In-
ternational Brotherhood of Electrical Workers assert that
the judge erroneously failed to order a make-whole remedy
for losses suffered by employees due to the Respondent’s
implementation of its proposal containing 12-hour shifts.
For the reasons that follow, we find merit to these cross-
exceptions.
We have adopted the judge’s findings that the Respon-
dent violated Section 8(a)(5) and (1) by: (1) bargaining to
impasse over its proposal for 12-hour shifts for under-
ground workers, because that was an unlawful subject of
bargaining in the circumstances of this case; (2) locking out
its employees in support of its unlawful bargaining de-
mand; and (3) implementing its final proposal to the Un-
ions, which included the 12-hour shift proposal for under-
ground workers. The judge’s recommended order requires
the Respondent to make whole employees for losses suf-
fered as a consequence of the lockout. However, the rec-
ommended order does not include a provision for any
losses suffered as a result of the Respondent’s subsequent
implementation of 12-hour shifts for underground workers.

1 The National Mining Association’s motion to participate as amicus
curiae is granted.
2 We shall modify the judge’s recommended order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996)
and Excel Container, Inc., 325 NLRB 17 (1997).
Where an employer unilaterally implements terms and
conditions of employment without first reaching a lawful
impasse, the Board has traditionally required the employer
to rescind the unlawfully implemented terms and condi-
tions of employment and to make whole employees for any
losses suffered as a result of the unlawful implementation.
See, e.g., Bryant & Stratton Business Institute, 321 NLRB
1007, 1009–1010 (1996), enfd. 140 F.3d 169 (2d Cir.
1998), supplemented 327 NLRB 1135, 1152–1153 (1999).
We find that it will effectuate the policies of the Act to pro-
vide the same remedy in this proceeding, and we shall
modify the judge’s recommended order accordingly.3
ORDER
The National Labor Relations Board orders that the Re-
spondent, Eddy Potash, Inc., Carlsbad, New Mexico, its
officers, agents, successors, and assigns, shall
1.Cease and desist from
(a) Insisting, as a condition of reaching any final collec-
tive-bargaining agreement, that the Unions agree to 12-
hour shifts for employees who work underground and, in
support of this proposal, bargaining to an impasse with the
Unions.
(b) Locking out its employees in support of its proposal
for the 12-hour shifts for employees who work under-
ground and to break the impasse.
(c) Implementing its final proposal to the Unions, which
included its proposal for 12-hour shifts for employees who
work underground.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, rescind the 12-hour shift requirement for
employees who work underground and bargain with the
Unions as the exclusive representatives of the employees in
the following appropriate units concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

Electrical Unit: All employees in the Electrical Work-
ers classifications as set forth in Article I and Exhibit
A of the collective-bargaining agreement for the pe-
riod July 16, 1992 to July 16, 1995, but excluding
guards and supervisors as defined in the Act.
3 As noted in the judge’s decision, while the parties entered into a
collective-bargaining agreement following the termination of the 1995
lockout, that agreement expressly reserved to all parties the right to
pursue legal claims concerning the legality of the 12-hour shifts. In
these circumstances, we find no merit to the Respondent’s position that,
because the Unions entered into the collective-bargaining agreement,
the Board is without power to order any make-whole remedy concern-
ing the unlawful implementation of 12-hour shifts.
331 NLRB No. 71
EDDY POTASH, INC. 553
Steelworkers Unit: All employees in the Steelworkers
classifications as set forth in Article I and Exhibit A of
the collective-bargaining agreement for the period July
16, 1992 to July 16, 1995, but excluding guards and
supervisors as defined in the Act.
Machinists Unit: All employees in the Machinists
classifications as set forth in Article I and Exhibit A of
the collective-bargaining agreement for the period July
16, 1992 to July 16, 1995, but excluding guards and
supervisors as defined in the Act.

(b) Make whole its employees for any loss of earnings
and other benefits suffered as a result of the lockout against
them and the unlawful implementation of 12-hour shifts for
underground workers, in the manner set forth in the remedy
section of the judge’s decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such records
if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
facility in Carlsbad, New Mexico copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any
time since July 15, 1995.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted By Order Of The Na-
tional Labor Relations Board” shall read “Posted Pursuant To A Judg-
ment Of The United States Court Of Appeals Enforcing An Order Of
The National Labor Relations Board.”
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT insist, as a condition of reaching any fi-
nal collective-bargaining agreement, that the Unions agree
to 12-hour shifts for employees who work underground
and, in support of this position, bargain to an impasse with
the Unions.
WE WILL NOT lock you out in support of our proposal
for the 12-hour shifts for employees who work under-
ground and to break the impasse with the Unions.
WE WILL NOT implement our final proposal to the Un-
ions, including our proposal for 12-hour shifts for employ-
ees who work underground.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, rescind the 12-hour shift re-
quirement for employees who work underground and bar-
gain with the Unions as the exclusive representatives of the
employees in the following appropriate units concerning
terms and conditions of employment and, if an understand-
ing is reached, embody the understanding in a signed
agreement:

Electrical Unit: All employees in the Electrical Work-
ers classifications as set forth in Article I and Exhibit
A of the collective-bargaining agreement for the pe-
riod July 16, 1992 to July 16, 1995, but excluding
guards and supervisors as defined in the Act.
Steelworkers Unit: All employees in the Steelworkers
classifications as set forth in Article I and Exhibit A of
the collective-bargaining agreement for the period July
16, 1992 to July 16, 1995, but excluding guards and
supervisors as defined in the Act.
Machinists Unit: All employees in the Machinists
classifications as set forth in Article I and Exhibit A of
the collective-bargaining agreement for the period July
16, 1992 to July 16, 1995, but excluding guards and
supervisors as defined in the Act.

WE WILL make whole our employees for any loss of
earnings and other benefits suffered as a result of the lock-
out against them and the unlawful implementation of 12-
hour shifts for underground workers, less any net interim
earnings, plus interest.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
EDDY POTASH, INC.
Paul R. Irving, Esq., for the General Counsel.
W. T. Martin, Jr., Esq. (Martin & Shanor), of Carlsbad, New
Mexico and Walter W. Christy, Esq. (the Kullman Firm), of
New Orleans, Louisiana, for the Respondent.
John L. Hollis, Esq., of Albuquerque, New Mexico, for IBEW
Local 611.
Gerald Barrett, Esq. (Ward, Keenan & Barrett, P.C.), of Phoenix,
Arizona, for United Steelworkers of America.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. In
a nutshell, the legal issue to be determined in this case is whether
Respondent Eddy Potash, Inc. (Respondent or EPI) bargained to
impasse about an illegal subject of bargaining in violation of Sec-
tion 8(a)(1) and (5) of the Act. Respondent mines potash in Carls-
bad, New Mexico, pursuant to a mineral lease agreement with the
United States Department of the Interior (Interior). The lease con-
tains a clause providing for, inter alia, “a restriction of the work
day not to exceed eight hours in any one day for underground
workers except in cases of national emergency.” In addition, the
Mineral Lands and Mining Act of 1920, 30 U.S.C. §181 et seq.
(the 1920 Act) prohibits a 12-hour shift at lands leased from Inte-
rior. Respondent’s 1992–1995 collective-bargaining agreement
provided for 8-hour underground shifts. On July 15, 1995, in the
course of bargaining for a successor collective-bargaining agree-
ment, Respondent insisted to impasse on inclusion of 12-hour
shifts for employees who work underground. Thereafter, Respon-
dent locked out its employees and implemented its final proposal
including the 12-hour shift requirement.
Charging Party International Brotherhood of Electrical Work-
ers, Local 611, AFL–CIO (IBEW Local 611) filed a charge in
Case 28–CA–13207 on July 17, 1995. Charging Party United
Steelworkers of America, AFL–CIO, CLC (USWA) filed a charge
on July 19 and an amended charge on July 27 in Case 28–CA–
3218. Charging Party International Association of Machinists and
Aerospace Workers, Local Lodge 1265, AFL–CIO (IAM Local
1265) filed a charge in Case 28–CA–13454 on December 8. On
January 9, 1996, a consolidated complaint issued. On June 5, 6,
and 7, 1996, all parties agreed to submission of the matter directly
to the Board with a stipulation of facts. By order of August 26,
1996, the Board approved the submission and stipulation. By
order of July 17, 1998, the Board remanded the proceeding for a
hearing to develop a full factual record. The Board stated,
“Among the issues that the parties should address are whether
other employers engaged in mining operations subject to the
[1920 Act] operate with shifts in excess of 8 hours and, if so, what
sanctions, if any, have been imposed pursuant to the [1920 Act].”
Pursuant to the Board’s remand, this case was tried in Carlsbad,
New Mexico on January 21, 1999.
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine witnesses,
and to argue the merits of their respective positions. Portions of
the parties’ joint stipulation to the Board were admitted in evi-
dence and are relied upon extensively herein.1 On the entire re-

1 The joint stipulation was entered into without prejudice to any ob-
jection that any party might have to relevance, materiality, or compe-
tency of any facts stated therein. Inclusion of facts is not intended to
necessarily reflect the relative evidentiary weight of various facts,
correspondence, lease agreements, and other documents.
cord,2 and after considering the briefs filed by counsel for the
General Counsel, counsel for the Charging Parties, and counsel
for Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Eddy Potash, Inc. (Respondent or EPI), a Delaware corporation
with a potash mining facility in Carlsbad, New Mexico, has been
engaged in the business of mining, extracting, processing, and
selling potash for agricultural or other chemical uses.3 During the
12-month period preceding June 7, 1996, Respondent purchased
and received at its facility goods, materials, equipment, and sup-
plies valued in excess of $50,000 directly from points located
outside the State of New Mexico, and has also sold and shipped
goods valued in excess of $50,000 from its facility in interstate
commerce directly to points outside the State of New Mexico.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION STATUS
IBEW Local 611, USWA Local 177,4 and IAM Local 1265 (re-
ferred to collectively as the Unions) are labor organizations within
the meaning of Section 2(5) of the Act.
III. FACTS
A. Background Facts
All three Unions have been signatory to a series of single (joint)
collective-bargaining agreements with Respondent, although each
Union has been separately certified to represent one of three sepa-
rate bargaining units of Respondent’s employees.5 Respondent has
recognized, by reason of prior certifications, each of the labor
organizations as the exclusive representative of its respective unit
of employees. Each unit constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b)
of the Act. By virtue of Section 9(a) of the Act, each Union is the
exclusive representative of its respective unit for purposes of col-
lective bargaining. The most recent collective-bargaining agree-
ment was effective by its terms from July 16, 1992, to 7 a.m. on
July 16, 1995.
Respondent leases most of the land on which it operates its fa-
cility from Interior pursuant to a mineral lease agreement made
under the 1920 Act.6 The original lease covering the land upon
which Respondent operates its facility, entered into between Inte-
rior and a predecessor of Respondent, is dated December 6, 1950.
A successor lease was effective from October 1, 1957 to October
1, 1977. During 1990, Respondent entered into a lease readjust-
ment, which became effective December 6, 1990, and has a term
of 20 years (lease number NM LC 065081).
ry.
2 Credibility resolutions were not necessary in this case as there are
no facts in dispute.
3 “Potash” is potassium or a potassium compound, as used in
agriculture and indust
4 Additionally, it is admitted that Charging Party USWA is a labor
organization within the meaning of Section 2(5) of the Act.
5 Art.1.1 of the parties’ 1992–1995 collective-bargaining agreement
contains a recitation of Respondent’s recognition of USWA Local 177,
IBEW Local 611, and IAM Local 1265.
6 A smaller portion of the land on which Respondent operates its fa-
cility is leased to it be the State of New Mexico, and a small amount is
owned by Respondent in fee.
EDDY POTASH, INC. 555
B. Mineral Lands and Mining Act of 1920
The original lease, the 1957 lease, and the current lease were
entered into between Interior and Respondent under the authority
of the 1920 Act. The parties agree that the lease is subject to the
provisions of Chapter 3A of Title 30 of the United States Code
(see 30 U.S.C. §§181–187, 281–287). The 1920 Act provides at
Section 187, inter alia, that the Secretary of the Interior may issue
leases to various operators, but each lease must contain provisions
attending the careful operation of mines as well as the safety and
health of employees.7 Such leases must contain specific provisions
limiting the workday of underground workers to 8 hours per day
except in cases of emergency. The pertinent language of Section
187 is as follows:

Each lease shall contain provisions for the purpose of insur-
ing the exercise of reasonable diligence, skill, and care in the
operation of said property; a provision that such rules for the
safety and welfare of the miners and for prevention of undue
waste as may be prescribed by the said Secretary shall be ob-
served, including a restriction of the workday to not exceed-
ing eight hours in any one day for underground workers ex-
cept in cases of emergency. . . . No such provisions shall be
in conflict with the laws of the State in which the leased
property is situated.
C. Respondent’s Lease
Section 7 of the lease under which Respondent operates con-
tains such an 8-hour provision, as follows:

Sec. 7. PROTECTION OF DIVERSE INTERESTS, AND
EQUAL OPPORTUNITY—Lessee shall: pay when due all
taxes legally assessed and levied under the laws of the State
or United States; accord all employees complete freedom of
purchase; pay all wages at least twice each month in lawful
money of the United States; maintain a safe working envi-
ronment in accordance with standard industry practices; re-
strict the workday to not more than 8 hours in any one day
for underground workers, except in emergencies; and take
measures necessary to protect the health and safety of the
public. No person under the age of 16 years shall be em-
ployed in any mine below the surface. To the extent that the
laws of the State in which the lands are situated are more re-
strictive than the provisions of this paragraph, then the State
laws apply. Lessee will comply with all provisions of Execu-
tive Order No. 11246 of September 24, 1965, as amended,
and the rules and regulations, and relevant orders of the Sec-
retary of Labor. Neither lessee nor lessee’s subcontractors
shall maintain segregated facilities.
D. Other Statutes and Regulations
In addition to the provisions of the 1920 Act, the parties have
included other statutes and regulations for consideration. Specifi-
cally, the Federal Mine Safety and Health Amendments Act of
1977, Pub. L. 95–164, Nov. 9, 1977, 91 Stat. 1290 (the Mine
Safety Amendments) repealed Title 30, Chapter 21 of 30 U.S.C.
Sec 721–740 (the Metal and Nonmetallic Mine Safety provisions).

7 In 1978, §187 was amended (Pub. L. 95–554) to substitute “provi-
sions prohibiting the employment of any child under the age of sixteen
in any mine below the surface” for “provisions prohibiting the em-
ployment of any boy under the age of sixteen or the employment of any
girl or woman, without regard to age, in any mine below the surface.”
30 U.S.C.A. §187, amended October 30, 1978, Pub. L. 95–554, §5, 92
Stat. 2074.
Thus, the operation of mines which had been covered under Chap-
ter 21 (metal and nonmetallic mines) were thereafter to be covered
under Chapter 22 of Title 30. In effect, this legislative change,
“brought the operation of all coal and other mines under a single
legislative canopy.” 30 U.S.C.A. §§721–740. As set forth at
§961(a), 30 U.S.C. §961(a), the Secretary of Labor was designated
to assume responsibilities relating to mine safety and health in
coal, metal, and nonmetallic mines. Section 961(b)(1) states, inter
alia, that mandatory standards relating to mines in effect as of
November 9, 1977, “shall remain in effect as mandatory health or
safety standards applicable to metal and nonmetallic mines . . .
until such time as the Secretary of Labor shall issue new or revised
mandatory health or safety standards applicable to metal or non-
metallic mines. . . .” Pursuant to Sec. 961(b)(2), the Secretary of
Labor is directed to publish such proposed mandatory health and
safety standards in the Federal Register.
New Mexico state law regarding daily maximum hours of em-
ployment, as set forth at §50-4-30 NMSA 1978, is as follows:

IV. No employee other than a fireman, law enforcement offi-
cer or farm or ranch hand whose duties require them to work
longer hours, or employees primarily in a stand-by position,
shall be required to work for any employer within the state
more than sixteen hours in any one day of twenty-four hours
except in emergency situations.

V. Any person violating any of the provisions of this act
[section] shall be guilty of a misdemeanor.
E. Correspondence with Governmental Agencies Regarding
Coverage of the 8-Hour Shift Language
On June 16, 1989, IMC Fertilizer, Inc. (IMC), another potash
mining company operating a facility in the Carlsbad, New Mexico
area, objected to the 8-hour provisions of its readjusted mineral
lease, a lease under the authority of the 1920 Act and containing
8-hour shift language similar to that contained in Respondent’s
lease.8 IMC filed its objections with the Bureau of Land Manage-
ment (BLM) in Santa Fe, New Mexico. By letter dated September
7, 1989, Clarence F. Hougland, chief of the BLM’s Lands and
Mining Unit, informed IMC that the BLM could not comply with
IMC’s request, and that the terms and conditions in its lease, i.e.,
those restricting the workday to not more than 8 hours in any one
day for underground workers, remain unchanged.
During late 1993 or early 1994, Respondent contacted BLM
seeking relief from the 8-hour shift language of Section 7 of its
lease. By letter dated April 22, 1994, BLM Assistant District
Manager, Minerals, Tony L Ferguson, responded. Respondent
sought the removal of the 8-hour shift language from its lease,
and, in the alternative, that the BLM waive the 8-hour restrictions
of the lease. Ferguson denied Respondent’s request to remove the
8-hour shift language from its lease, and in doing so he referenced
and attached the 1989 correspondent between BLM and IMC and
also a BLM internal memorandum from Gayle E. Manges, field
solicitor of BLM’s Southwest Region, to BLM’s state director.
The BLM, by Ferguson, also denied Respondent’s request to
waive the 8-hour restrictions, explaining as follows:

The second portion of your request deals with the waiver of
the [8-hour shift] requirement. We have researched our regu-
8 IMC objected to the following provision of its Potassium Lease,
Notice of Readjusted Lease, which it received on May 4, 1989: “Sec. 7.
Protection of Diverse Interests, and Equal Opportunity—Restrict the
workday to not more than 8 hours in any one day for underground
workers, except in emergencies.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
lations and do not find any authority for the granting of a
waiver in this situation. According to Section 2(m) of the
lease document, the workday is not to exceed eight (8) hours
in any one day for underground workers, except in an emer-
gency.

We have examined our regulations and guidance to deter-
mine what constitutes an emergency and find that emergency
is normally identified with accidents/incidents that are di-
rectly related to the safety of the miners. (emphasis in origi-
nal)

On May 18, 1994, Lesley Cone, district manager of BLM’s
Roswell, New Mexico office, sent Respondent a letter which reads
in pertinent part:

This is in reference to your request concerning the Bureau of
Land Management’s (BLM) lease requirement for length of
shifts. As you know, BLM does not have jurisdiction over
labor issues, that is the responsibility of the Department of
Labor.

The 1920 Mineral Leasing Act does require a lease stipula-
tion which addresses length of shifts. These can be modified
in emergency situations. However, it is not BLM’s intent to
intercede into jurisdictional issues more appropriately dealt
with by the Department of Labor.

Respondent interpreted BLM’s May 18, 1994 letter as indicat-
ing that should Respondent institute work shifts longer than eight
hours, BLM would not intervene.
The BLM later provided an “additional response” to Respon-
dent regarding its request for a waiver by letter dated July 11,
1994, from Arthur Arguedas, Field Solicitor, Department of the
Interior, Santa Fe, New Mexico Field Office. In his letter Ar-
guedas informs Respondent that “. . . the 8-hour workday stipula-
tion in each lease is required by federal law, 30 U.S.C. §187.
BLM has no authority to remove the stipulation from any lease. It
has no authority to ‘waive’ the requirement of the statute. . . .”
Arguedas’ letter also contains the following:

I note that this office has found no court decision that we be-
lieve adjudicates the meaning or the current-day enforceabil-
ity of the 8-hour provision of the statute. We express no view
as to whether the statute remains effective. A proper deter-
mination of those questions can be made only by judicial de-
cision, not by an advisory opinion from this office.

BLM is skeptical of your assertion that economic circum-
stances might constitute the sort of “emergency” within the
meaning of the statute that would allow workdays of more
than eight hours, but it has no occasion to decide such a mat-
ter. Even if economic conditions could constitute an emer-
gency in some instances, BLM has no knowledge as to
whether Eddy’s financial situation is such that an “emer-
gency” exists.

Again, if some Agency is to make a judgment on matters of
labor law or on mine safety or on potash economics, it must
be a labor agency or a judicial of administrative decision
making body. BLM declines at this time to become en-
meshed in the currently-pending potash industry la-
bor/management disputes.

I do note that the potash leases contain provisions that a party
to the lease may follow in the event of an alleged breach or
default. To date BLM has not taken any action (e.g., a cita-
tion or notice of default) that would lead to either a judicial
or an administrative dispute or decision on whether the 8-
hour requirements of Eddy’s lease have been violated. Other
than to seek a waiver, Eddy also has not sought a formally
adjudicated decision on this matter.

On August 2, 1994, the USWA made inquiry, by letter, to the
United States Department of Labor’s Mine Safety and Health
Administration (MSHA). The letter, to J. Davitt McAteer, Assis-
tant Secretary of Labor for Mine safety and Health, posed the
following:

Eddy Potash operates an underground mine in Carlsbad,
NM, on lease federal land. The Mineral Leasing Act of 1920
includes language . . . requiring leases to contain a provision
restricting the workday to no more than 8 hours. Eddy’s lease
does contain that provision.

However, the company claims that the provision is invalid,
on the grounds that mine safety matters were transferred
from the Department of the Interior to the Department of La-
bor with the 1977 Federal Mine Safety and Health Act. Our
reading of the Act is that it transferred only those functions
contained in the 1969 Federal Coal Mine Health and Safety
Act and the Federal Metal and Nonmetallic Mine Safety Act.
(Addendum Sec. 301).

We would appreciate a letter stating MSHA’s position as
quickly as possible.

By letter dated August 3, MSHA’s McAteer replied to the USWA
as follows:

This letter responds to your request for the views of the Mine
Safety and Health Administration (MSHA) on 30 U.S.C.
Sec. 187, which deals with certain leases involving federal
lands

MSHA is responsible for enforcement of the Federal Mine
Safety and Health Act of 1977 (Mine Act) and regulations
pursuant to that statute. The Mine Act did not repeal 30
U.S.C. 187, nor is the Mine Act in conflict with that provi-
sion.

In December 1992, the BLM’s office in Utah granted a coal-
mining company a variance from the 8-hour requirement. Thus, in
a case involving Utah Fuel Company (UFC), a coal mining con-
cern, the BLM granted UFC a waiver of the 8-hour shift rule on
the basis that UFC had been granted a variance by the Industrial
Commission of Utah from the State of Utah’s 8-hour shift law.
The variance granted by the BLM was to remain valid “as long
[as] the variance of the [Industrial] Commission [of Utah] remains
in effect.”
At no time has the Secretary of the Interior, the BLM, or the
United States Department of Labor (DOL) taken any action to
declare Respondent’s lease in default for any violation of the 8-
hour shift provision.
F. 12-hour Shifts
Toward the end of 1993, Respondent contacted the Unions to
determine if they had any objections to the institution of a 12-hour
shift. Respondent took the position that under article 3 (manage-
ment rights) and article 5.6 (hours of work and overtime) of the
collective-bargaining agreement, it had the right to establish such
underground shifts even without the Union’s approval.9 Prior to

9 Art. 5.6 of the contract specifically sets the shift lengths for surface
and lading dock employees at 8 hours. This restriction is not specifi-
cally set forth for underground or mining employees.
EDDY POTASH, INC. 557
January 1994, the Unions advised Respondent that they would not
agree to the establishment of 12-hour shifts.
In January 1994, Respondent instituted 12-hour underground
shifts. Thereafter, grievances were filed by each of the Unions.
The grievances were referred for arbitration under the contract and
on July 12, 1994, an arbitration hearing was conducted before
Arbitrator Francis X. Quinn. On September 9, 1994, Arbitrator
Quinn issued his decision wherein he sustained the grievances,
finding that Respondent violated the contract when it unilaterally
imposed a 12-hour work shift. Arbitrator Quinn also ordered Re-
spondent to cease and desist from 12-hour work shifts and return
to 8-hour shifts. Respondent complied with the arbitrator’s ruling
and returned to operations utilizing 8-hour shifts.
G. Negotiations: Generally
In May 1995,10 in preparation for the pending negotiations for a
successive contract, Respondent notified the Federal Mediation
and Conciliation Service (FMCS) that a labor dispute existed.
During an initial meeting between Kenny Leivo, Respondent’s
Director of Human Resources, and representatives of the three
Unions, Respondent informed the Unions that during negotiations
over the terms of a new contract it would plead poverty based on
its poor economic condition. The Unions agreed that they would
meet jointly with Respondent in negotiations, although each of the
Unions would be free to assert their own positions and demands
where appropriate.
Bargaining sessions were conducted on June 13, 14, 21, and 22,
and during the period from July 6 through 15, until about 7 a.m.
on July 16.
On June 13, the parties met for negotiations over the terms of a
new contract. At this first session, Respondent was represented by
Leivo, Jim Ryan, Respondent’s vice president and general man-
ager, and Hugh M. Smith, Esq., Respondent’s counsel. At this first
session, with all of the Unions’ bargaining committees present,
Respondent informed the Unions that it was entering negotiations
with no additional moneys to place on the table and it was making
a plea of poverty. Respondent stated that it would make all of its
books available at its facility to any reputable certified public
accountant of the Union’s choice. On June 14, USWA Interna-
tional Representative Manny Sierras sent a letter to Leivo request-
ing “the up-to-date financial status and all pertinent information
regarding [Respondent].” In response, Respondent furnished the
USWA with a copy of its annual report.11
With the exception of the issue of 12-hour shifts, the negotia-
tions followed a normal give and take with each party making
some concessions, resulting in agreement on some issues but not
all. The parties agreed that many of the provisions of the old con-
tract would not be changed and also agreed to changes in the lan-
guage of several existing articles, including changes to the griev-
ance procedure, vacation language, safety glasses, tool replace-
ment, issuance of safety manuals and company policies, absentee-

10 All dates hereafter are in 1995.
11 Later, on Friday, July 14, Sierras called Smith and asked if Sier-
ras’ agents would be permitted to examine Respondent’s books. Smith
told Sierras that his agents and accountants would be allowed to exam-
ine Respondent’s books, and that such inspection would have to occur
on Respondent’s premises due to the volume and location of the variety
of documents and data necessary to perform a bona fide audit. Thereaf-
ter, USWA agents from its headquarters in Pittsburgh, Pennsylvania
requested from Respondent an up-to-date financial report (annual re-
port). Respondent’s annual report was, prior to July 16, again provided
to the USWA.
ism, job posting, and seniority. However, the primary issue from
the onset of negotiations was the matter of the 12-hour shift.
H. Negotiations: The 12-hour Shift
During bargaining, Respondent sought to remove all references
to an 8-hour shift from the contract, while the Unions sought to
insert the 8-hour shift language in all areas where the contract was
silent in that regard. Throughout negotiations, Respondent tied all
wage-increase proposals to the implementation of a 12-hour shift
system. At a later point in negotiations, Respondent offered an
across-the-board 25-cent wage increase coupled with a “gainshar-
ing” plan, all of which was premised on the Unions’ acceptance of
12-hour shifts. Under the proposed “gainsharing” plan, employees
would share in any profit realized by Respondent. Under Respon-
dent’s proposal, profit was to be determined by production and the
decrease in cost per ton as production rose. During contract nego-
tiations in both 1989 and 1992, the Unions had proposed or re-
quested some form of profit sharing. Throughout the 1995 nego-
tiations, Respondent consistently took the position that any in-
crease in wages and/or a gainsharing plan must be tied to a 12-
hour shift schedule or some other program or structure which
would bring Respondent an immediate profit. Respondent offered
to consider any union proposal along these lines so long as such
an alternative would yield an immediate profit capability.
The USWA suggested an alternative to Respondent’s 12-hour
shift proposal that Respondent would be able to increase profits
and lower costs if it were to stagger the shift times of some of the
underground crews, thereby allowing for the continuation of ac-
tual mining operations.
Respondent took the position that it was a good suggestion and
had been tried before, and, if it had the time, such a plan could
probably work again. However, Respondent repeated that it
needed operational changes that would immediately save it from
losses and would immediately result in profit, namely, 12-hour
shifts.
At this point in negotiations, Sierras remarked that it appeared
to him that the Respondent was attempting to obtain through ne-
gotiations that which it was denied via arbitration. Leivo, on be-
half of Respondent at the bargaining table, confirmed that such
was the case.
During negotiations, all the Unions took the position that it was
unlawful to work more than 8 hours underground. Respondent
took the position that 12-hour shifts are not unlawful; that the only
authority which prohibited 12-hour shifts was the lease agreement;
and that the lease agreement itself provided for and prescribed a
legal remedy. Respondent took the position that it did not believe
that BLM would consider the implementation of 12-hour shifts as
a default of the lease agreement. At the table, Respondent argued
that if the Unions were successful through the Federal courts or
other judicial forums, the result, i.e., a declaration of default result-
ing in the cancellation of the lease, would result in the closing the
mine and the loss of approximately 250 jobs.
At the July 6 bargaining session, it was agreed that all parties
would present their final positions on Wednesday, July 12. On
July 7, Respondent notified the Unions that it would implement
12-hour shifts at the expiration of the contract if no new agree-
ment was reached, and that it was not interested in extending the
current contract beyond its July 16 expiration date.
On July 12, the Respondent presented its final position which
included an additional across-the-board direct wage increase and
an increase to the previously proposed gainsharing plan (i.e., an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
increase in the gainsharing split in favor of the employees),12 but
conditioned such proposals on the Unions’ acceptance of the prin-
ciple of 12-hour shifts. The language proposed by Respondent
would allow it to schedule 12-hour shifts at its option. Respondent
reminded the Unions that the language sought did not necessarily
mean that the 12-hour shifts would be in place forever.
During the July 12 negotiation session, each Union was asked
by the Respondent if it would accept the 12-hour shifts under any
conditions, and if there was anything that Respondent could do to
persuade the Unions to accept the 12-hour shifts. Each Union
responded “no” to such inquiries. At this point in negotiations,
Respondent declared that if a contract could not be reached by 7
a.m. on July 16, Respondent would institute a lockout. At the
request of the Unions, the Respondent agreed to set forth its posi-
tions in writing. Respondent’s representatives presented the Un-
ions’ representatives with a document entitled, “Eddy Potash
Statement of Position Regarding Negotiations for Labor Agree-
ment and Mine Operations,” which includes the following:

1. 12-hour shift is essential for viable long-term op-
eration. It also provides opportunity for substantial in-
crease in wages through a gainsharing program as well as
a wage increase.
2. [Respondent] cannot continue to work under pre-
sent labor agreement.
3. Regret[t]ably, if an agreement is not reached by
July 16, at 7:00 a.m., [Respondent] will be forced to de-
clare a lockout.
4. If however, a number of employees sufficient to en-
sure safe and effective operations indicate their willing-
ness to work without a contract, the lock-out will be lifted
and they will be able to do so on a 12-hour-shift basis and
under the other terms and conditions of the [Respondent’s]
final proposal. Operations would then resume as soon as
reasonably possible. The Unions will be notified of any
expected changes in the status of operations.

On or about July 15, Respondent insisted, as a condition of
reaching any final collective-bargaining agreement, that the Un-
ions agree to 12-hour shifts for employees represented by them.
On or about July 15, in support of its proposal for a 12-hour-shift
system, Respondent declared an impasse in bargaining with the
Unions.
On Sunday, July 16, employees reporting for the morning shift
were held at the mine hoist and skip until approximately 7 a.m.,
and then sent home by Respondent. Respondent thereby instituted
a lockout. From that point on, Respondent maintained its lockout
of employees represented by the Unions. Respondent imple-
mented it final proposal to the Unions, which included a 12-hour-
shift system.
On July 10, 12, 16, 19, and 26, and August 1, Respondent dis-
tributed letters to its employees addressed to “Dear Employee and
Family” or “Dear Eddy Potash Employee.” In its July 16 letter to
employees, Respondent states that, “. . . should you wish to return
to work, you should notify us . . . by calling Kenny Leivo . . . at
the minesite at 887–2844, Ext 239. You may also call our answer-
ing machine number . . . anytime. . . .” The answering machine
played the following message, recorded by Leivo, to those calling:

12 During the course of negotiations, Respondent gradually increased
its gainsharing proposal from 33 percent (i.e., 33 percent of profits over
a projected amount would go to employees’ bonuses) to 39 percent and
finally to 45 percent.
You have reached the Eddy Potash information line. This
line has been set up for employees to notify us if they wish to
return to work under the terms and conditions of our final
proposal. If you are willing to come back to work under
those conditions, please leave your name and telephone
number and we will get back to you regarding when and if
the lock-out will be lifted. Thank you very much.
I. Duration of Lockout; Interim Agreement; Current Status
The lockout ended on August 7 under the terms of an interim
agreement entered into by Respondent and the Unions. Thereafter,
the parties entered into a collective-bargaining agreement (the
final agreement), under which the parties are currently working.
Both the interim and final agreements contain the following provi-
sion at Article 18.5:

With the exception of and excluding the Minerals Leasing
Act of 1920, Title 30, §187; any provisions of this contract in
conflict with or in violation of any applicable State or Fed-
eral Law, shall be inoperative and of no effect, but shall not
affect the remaining provisions hereof. Provisions of this
agreement for shifts in excess of 8 hours and daily overtime
shall not be subject to the to the grievance and arbitration
provisions contained herein. Nothing in this Article shall
preclude either Party from pursuing legal recourse or appeal
of any action by any court or other governmental body con-
cerning the legality of 12-hour shifts.
J. Practices in the Carlsbad area
There are four potash mines in the Carlsbad area. From time to
time, these mining entities have required that employees work in
excess of 8 hours. Generally, this took the form of overtime hours
which were sporadically assigned as needed. BLM never notified
Respondent that it considered the overtime for underground min-
ers in excess of 8 hours to be a violation of the 1920 Act of or the
potassium leases. In addition, Respondent required 10-hour shifts
of its employees for a period of time when it was going through
bankruptcy proceedings. Although Respondent instituted 12-hour
shifts in January 1994 and August 1995, BLM never notified
Respondent that it considered the extended 12-hour shifts a breach
of the 1920 Act or of the leases. On both occasions when the 12-
hour shifts were implemented, Respondent notified BLM. BLM
did not take any action on these occasions to declare Respondent’s
lease in default. Other mines in the Carlsbad area have also im-
plemented 10-hour or 12-hour shifts at about the same time that
Respondent did. BLM has not taken any action to treat any of the
mines as having violated that 1920 Act or their leases because of
implementation of the 12-hour shift.
IV. ANALYTICAL FRAMEWORK
Generally, subjects of bargaining are categorized as mandatory
or nonmandatory.13 Mandatory subjects are those which “vitally
affect” employees.14 Current industry practices, “although not
conclusive,” are “highly relevant” in determining which subjects
13 NLRB v. Borg-Warner Corp., Wooster Division, 356 U.S. 342,
349 (1958).
14 Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 179 (1971), relying on Teamsters Local 24 v.
Oliver, 358 U.S. 283 (1959) and Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203 (1964).
EDDY POTASH, INC. 559
are mandatory.15 In making the determination regarding which
subjects are mandatory, the Board has primary responsibility.16
In practical terms this means a party may bargain to impasse
regarding a mandatory subject of bargaining. Parties may bargain
regarding permissive subjects of bargaining and, if agreement is
reached, include such subjects in their collective-bargaining
agreement. However, a party may not insist to impasse that a per-
missive subject of bargaining be included.17 Illegal subjects of
bargaining are those which are unlawful or inconsistent with the
basic policy of the Act.18 The parties may not include such sub-
jects in their agreement. A party who insists to impasse on an
illegal subject of bargaining violates the Act.19 Examples of sub-
jects which have been held illegal subjects under the Act are
modification of provisions of a court-approved Title VII settle-
ment agreement incorporated in the parties’ collective-bargaining
agreement,20 closed-shop provisions,21 and hot cargo clauses.22
VI. ARGUMENTS
Counsel for the General Counsel argues that Respondent’s in-
sistence on shifts longer than 8 hours is contrary to the 1920 Act.
Counsel notes that Congress amended the 1920 Act in 1978 by
deleting the prohibition of women working underground. In addi-
tion, counsel asserts that the Federal Mine Safety and Health
Amendments Act of 1977 did not emasculate the 1920 Act as
evidenced by later litigation regarding matters of health, safety,
and labor relations of miners pursuant to the1920 Act.23 Further,
counsel reasons that in order to find that the MSHAA transferred
mine safety matters from the Secretary of the Interior to the Secre-
tary of Labor, one would have to conclude that Congress meant
something other than what it said or, at best, a repeal by implica-
tion, much disfavored in the law.
Counsel for the General Counsel, in addition, notes that the
failure of BLM or DOL to act to enforce the 8-hour provision in
Respondent’s lease does not lessen the viability of the statute.24
Counsel also notes that New Mexico state law is less restrictive
than Section 187. Accordingly, counsel reasons that New Mexico
law (which allows shifts of 16 hours in any one day) does not
control because Section 187 specifically provides that it shall not
be in conflict with state law where the property is leased and the
lease specifically provides that state law shall control only where
it is more restrictive.

15 Ford Motor Co. v. NLRB, 441 U.S. 488, 501 (1979).
16 Id. at 497.
17 Borg Warner, supra, 356 U.S. at 349.
18 National Maritime Union (Texas Co.), 78 NLRB 971, 981–982
(1948), enfd. 175 F.2d 686 (2d Cir. 1949), cert. denied, 338 U.S. 954
(1950); see also, Massillon Community Hospital, 282 NLRB 675, 676
(1987).
19 Honolulu Star-Bulletin, 123 NLRB 395 (1959), enft. denied on
other grounds, 274 F.2d 567 (D.C. Cir. 1959).
20 Chesapeake Plywood, 294 NLRB 201 (1989), enfd. in part and
denied in part, unpublished, 917 F.2d 22 (4th Cir. 1990).
21 Penello v. Mine Workers, 88 F.Supp. 935 (D.C. Cir. 1950).
22 Lithographers Local 17 (Graphic Arts Employers Assn.), 130
NLRB 985 (1961), enfd. 309 F.2d 31 (9th Cir. 1962), cert. denied, 372
U.S. 943 (1963).
23 Counsel cites Ventura County v. Gulf Oil, 601 F.2d 1080 (9th Cir.
1979) affd. on appeal, 445 U.S. 947 (1980), acknowledging that all
parties rely on the case, and argues that the case supports a finding that
Sec. 187, “remains a viable, enforceable federal statute.” (Brief of
counsel for the General Counsel at 15, fn. 11).
24 Counsel cites Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437
(1968) (“The fact that the statute lay partially dormant for many years
cannot be held to diminish its force today.”).
Counsel for IBEW Local 611 asserts that Section 187 and the
resulting leases are clear and unambiguous. Counsel notes that the
NLRB has authority to interpret this statutory scheme even though
it is outside the specific contours of Board law. Counsel urges that
the 1920 Act has not become dormant. Specifically, counsel
points to BLM’s refusal to exclude the 8-hour provision from its
leases. In addition, in agreement with counsel for the General
Counsel, counsel for IBEW Local 611 asserts that MSHAA did
not repeal Section 187 and state law does not control the situation.
Counsel for USW emphasizes that BLM does not assert that the
statute is void, nor does it contest the plain meaning of Section
187. Counsel notes that BLM has never approved Respondent’s
request to schedule shifts in excess of 8 hours. Counsel asserts that
because BLM’s position is that it is not the appropriate authority
to enforce the 8-hour provision, its only recourse in a case such as
this is the draconian one of canceling the lease.
Counsel also notes that even though the statute may have been
dormant for many years, it does not diminish the force of the stat-
ute. Counsel urges that a finding by the Board that the statute is
not enforceable would be inconsistent with Congressional concern
for the health and safety of the miners. Moreover, counsel argues
that because Respondent’s contract proposal was unlawful under
the plain meaning of Section 187, the Board should not explore
the frequency or manner of enforcement.
Respondent asserts that the requirement of a 12-hour shift
does not violate Section 187 or the MSHAA. Respondent notes
that Section 187 provides that state law controls over any statu-
torily mandated provision in a federal mineral lease. Relying on
Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979)
and Kirkpatrick Oil & Gas Co. v. U.S., 675 F.2d 1122 (10th Cir.
1982), Respondent asserts that Section 187 yields to state law if
the terms of Section 187-mandated lease provisions conflict with
state law. Contending that those provisions do conflict, Respon-
dent relies upon New Mexico law, which allows employees to
work up to 16 hours in a day. Accordingly, Respondent con-
cludes that the issue of 12-hour shifts is not an illegal subject of
bargaining.
Respondent also notes that MSHAA took the position that its
regulatory scheme was not in conflict with Section 187. Because
neither the MSHAA nor the regulations propounded thereunder
address the number of hours which may be worked by under-
ground miners, Respondent asserts its proposal was not in viola-
tion of MSHAA. Reasoning that its proposal was not unlawful,
and was in fact justified by compelling economic necessity, Re-
spondent concludes that it lawfully reached impasse and locked
out employees thereafter.
Finally, Respondent avers that the NLRB does not have author-
ity to construe or enforce a contractual provision between Re-
spondent and BLM. Respondent notes that BLM has taken no
action to cancel Respondent’s lease. Because the Union’s claims
against Respondent are actually a dispute under the 1920 Act, the
Board has no jurisdiction or, assuming it has jurisdiction, it should
exercise its discretion to decline jurisdiction under principles of
comity and deference to sister agencies.
VII. ANALYSIS
Hours of work are a mandatory subject of bargaining.25 Ac-
cordingly, before altering the hours of employees’ work, an
25 Meat Cutters Locals 189, 320, 546, 571, 638 v. Jewel Tea Co.,
381 U.S. 676, 691 (1965):
Contrary to the Court of Appeals, we think that the particular hours of
the day and the particular days of the week during which employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
employer must bargain.26 Respondent has satisfied this require-
ment. However, in so doing, Respondent allegedly insisted upon
an illegal subject of bargaining.
Just as the factual existence of impasse, lockout, and unilateral
implementation are not disputed, several legal issues are also not
in dispute. First, Section 187 of the 1920 Act has not been specifi-
cally repealed by any other legislation. In fact, in 1978, it was
amended to conform with Title VII. One might argue that if Con-
gress had intended to repeal the 8-hour shift provision, it would
have done so in 1978. However, it did not do so. Moreover, be-
cause this amendment occurred after the MSHAA transferred
mine safety matters from Interior to Labor, it does not appear that
MSHAA repealed Section 187. Second, the requirement of 8-hour
shifts in Section 187 has not been the subject of litigation in re-
ported decisions arising under the 1920 Act. However, in agree-
ment with counsel for the General Counsel, I find that the dor-
mancy of a statute does not diminish its force.27 Third, BLM con-
tinues to insert the 8-hour shift requirement in its mineral leases
and refuses to waive this 8-hour shift requirement, officially tak-
ing the position that the matter is not appropriately litigated before
it. Unless New Mexico law supersedes the language of Respon-
dent’s mineral lease, as Respondent suggests, a shift other than the
8-hour shift is technically unlawful pursuant to the 1920 Act.
In construing the provisions of the 1920 Act and the provisions
of New Mexico’s wage and hour law, I conclude that the 1920 Act
has not been superseded by New Mexico law. The 1920 Act sets
8-hour shifts stating that this shall not be in conflict with the laws
of the State in which the property is lease. New Mexico law al-
lows 16-hour shifts in a 24-hour day except in emergencies. The
1920 Act is certainly more restrictive than New Mexico law.
However, there is no conflict between the two. Moreover, Re-
spondent’s lease provides that state law will prevail only where
the state law is more restrictive.28
Having rejected the grounds raised for dismissal of the com-
plaint, I find that the 1920 Act’s requirement of an 8-hour shift for

may be required to work are subjects well within the realm of “wages,
hours, and terms and conditions of employment” about which em-
ployers and unions must bargain.
26 See, e.g., Kal Kan Foods, 288 NLRB 590 (1988) (unilateral insti-
tution of a 7-day, 12-hour-shift system in lieu of three 8-hour shifts, 5
days per week unlawful); RAHCO, Inc., 265 NLRB 235 (1982).
27 See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437 (1968);
IT&T v. U.S., 536 F.2d 1361 (Ct. Claims 1976).
28 Respondent’s argument that the NLRB does not have authority to
construe or enforce the lease provisions of its contract misses the point.
My finding is not based on the provisions of the lease. Rather, it is
based on the provisions of the 1920 Act. Moreover, to the extent Re-
spondent argues that only BLM may declare its actions unlawful, I find
that BLM essentially did just that when it refused to grant Respondent a
waiver. The fact that it has not taken the further action of canceling
Respondent’s mineral lease does not suggest otherwise.
miners remains in effect. I further find that Respondent, by bar-
gaining to impasse regarding a 12-hour shift, violated the Act by
insisting to impasse on an unlawful subject of bargaining. It fol-
lows that the lockout was also unlawful.29
This analysis has not utilized the evidence requested by the
Board regarding industry practice or BLM’s failure to cancel the
leases when lessees have violated the 8-hour-shift requirement. In
my view, industry practice does not answer the question about
legality of actions. Nor does BLM’s failure to cancel leases serve
to endorse the actions of its lessees in instituting a 12-hour-shift
requirement. This is especially so in light of BLM’s failure to
grant waivers to allow the 12-hour shifts. However, in one respect,
industry practice is relevant. That is in determining which subjects
are mandatory subjects of bargaining. And with this observation,
the analysis comes full circle. Obviously, hours are a mandatory
subject of bargaining. The fact that other mines followed Respon-
dent’s lead and also instituted 12-hour shifts, does not advance the
analysis, in my view.
CONCLUSIONS OF LAW
1. By insisting, as a condition of reaching any final collective-
bargaining agreement, that the Unions agree to 12-hour shifts for
employees who work underground, and in support of this pro-
posal, bargaining to an impasse with the Unions, Respondent has
committed unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
2. By locking out its employees in support of its proposal for
the 12-hour shift and to break the impasse, Respondent has com-
mitted unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
3. By implementing its final proposal to the Union which in-
cluded its proposal for a 12-hour shift, Respondent has committed
unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, having found that Respondent’s
lockout was unlawful, Respondent shall make its employees
whole for any loss of earnings and other benefits suffered as a
result of the lockout with backpay to be computed in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]

29 See, e.g., C-E Natco/C-E Invalco, 272 NLRB 502, 505 (1984).