Falcon Coal Co Employees' Assn

National Labor Relations Board - Board Decisions

Mar 8, 1990

297 N.L.R.B. 855 (N.L.R.B. 1990)

FALCON COAL CO EMPLOYEES' ASSN 855
Arch on the North Fork Employees' Association
a/k/a Falcon Coal Company Employees' Asso-
ciation and Arch on the North Fork, Inc. Case
9-CB-7168 •
March 8, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 22, 1989, Administrative Law
Judge Richard H Beddow Jr issued the attached
decision The General Counsel and the Charging
Party filed exceptions and supporting briefs The
Respondent filed cross-exceptions and a supporting
brief, and the Charging Party filed an answering
brief 1
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
conclusions3 and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
'The Charging Party submitted with its answering bnef a copy of the
decision of the United States District Court for the Eastern District of
Kentucky in Arch on the North Fork Inc v Arch on the North Fork Em-
ployees' Assn , Civil Action No 89-235 (Nov , 9, 1989) Subsequently, the
Respondent filed a motion to strike portions of the answering brief and
the Charging Party filed a response We deny the Respondent's motion
The decision of the district court, however, does not affect our disposi-
tion of this case
2 In his decision, the judge found that on May 23, 1988, the Charging
Party was told that the draft bargaining agreement It had prepared con-
tained language which was different from that agreed to at the bargaining
table The record, however, does not specifically indicate that the Re-
spondent s officials brought the deleted contract language to the Charg-
ing Party's attention, although the Respondent's officials told the Charg-
ing Party that It was not operating as the parties had agreed In the first
paragraph of sec II of the judge's decision, the date March 6' should
be "May 6" In sec III, C, par 5, of the judge's decision, the word 'con-
tends' should be 'contents Also in that paragraph, the judge stated that
the document submitted by the Charging Party for execution "fails to ac-
curately reflect and incorporate the clear Intent of the Association on an
issue of substantive importance,' whereas It is clear in context that the
judge meant to state the document falls to accurately reflect and Incorpo-
rate the agreement of the parties on an issue of substantive Importance
None of these corrections affects our decision
3 In light of our agreement with the judge that the Respondent did not
violate Sec 8(b)(3) of the Act when It refused to execute the bargaining
agreement presented to It in November 1988, we find it unnecessary to
pass on his discussion of whethef the complaint was barred by Sec 10(b)
Additionally, we find It unnecessary to pass on the Respondent's cross-
exceptions including Its argument that the judge erred in rejecting Its
contention that the ratification was invalid
Andrew L Lang, Esq , for the General Counsel
Irwin H Cutler, Jr, Esq and Linda J Wallbaum Esq , for
the Respondent
Edwin S Hopson, Esq , of Louisville, Kentucky, for the
Charging Party
DECISION
STATEMENT OF THE CASE
RICHARD H BEDDOW JR , Administrative Law Judge
This matter was heard in Lexington, Kentucky, on June
20, 1989 Subsequently, briefs were filed by all parties
The proceeding is based upon a charge filed December
1, 1988, 1 by Arch on the North Fork, Inc, of Jackson,
Kentucky The Regional Director's complaint dated Jan-
uary 31, 1989, alleges that Respondent Arch on the
North Fork Employees' Association, a/k/a Falcon Coal
Company Employees' Association, violated Section
8(b)(3) of the National Labor Relations Act by refusing
and failing to execute a collective-bargaining agreement
bargained in good faith by the Employer herein
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent Association is a labor organization
within the meaning of Section 2(5) of the Act and it has
had a collective-bargaining history with the Employer
which is engaged in the mining and distribution of coal
at Breathitt County, Kentucky, and annually ships goods
valued in excess of $50,000 from its location to points
outside Kentucky It admits that at all times material it
has been an employer engaged in operations affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act Accordingly, I find that the circum-
stances meet the Board's jurisdictional standards and it
effectuates the ,policy of the Act to exercise jurisdiction
in a case of this nature
II THE ALLEGED UNFAIR LABOR PRACTICES
Respondent has been the collective-bargaining repre-
sentative for the Employer's employees since 1974
During the spring of 1988, the parties engaged in collec-
tive bargaining for a replacement for their collective-bar-
gaining agreement which expired March 30 The agree-
ment was extended to April 11, at which time the em-
ployees went on strike Negotiations continued and re-
sulted in a tentative contract and a ratification vote taken
on March 6, at which time the membership rejected the
proposed contract Negotiations continued and resulted
in a further tentative agreement on May 12 The Em-
ployer prepared and distributed copies of the complete
tentative agreement prior to the May 6 vote and on May
12 prepared and distributed a document reflecting subse-
quently negotiated changes That agreement was put to a
ratification vote on May 14 and resulted in a vote of 115
in favor of the tentative contract and 90 against The em-
' All following dates will be in 1988 unless otherwise indicated
297 NLRB No 144
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees returned to work on Monday, May 16, and the
Employer put into effect the newly negotiated contract
terms and wages that same date
The Employer prepared a draft of the agreement and
submitted it to the Union on May 19 with a cover letter
requesting that the document be reviewed and returned
by May 23 so as to facilitate delivery to the printer
The Employer did not receive a formal response from
the Association, however, on or about May 23 the Em-
ployer's manager of human resources, Harlan Davidson,
spoke with Association officers Wayne Harvey and
Roger Fnley as well as Ora Combs, a member of the
bargaining committee, at the jobsite and was told by
them that the draft contract contained language that had
changed from the proposals negotiated and that the
Company was operating differently from what had been
negotiated The Employer initiated a meeting with the
Association representatives in mid-June to "clear the
air," concerning the contract The Association was then
represented by its vice president, Jack Jennings, Treasur-
er Roger Fnley, spokesmen and negotiation participants
Billy Wilder, 2 and Wayne Harvey The Association's
president, Zane Watts, who had participated in the nego-
tiations was in a job classification (surveyor) that was
eliminated from the bargaining unit, a change that result-
ed from a majority vote of those in that classification,
after the employees returned to work
Manager Davidson testified that after a general discus-
sion of complaints about the contract, he felt that he had
pointed out the questioned items and convinced those
present that the actual language submitted for a vote had
not changed He further testified, however, that he felt
the employees still thought that "the intent was not
there"
Thereafter, the Company continued to implement the
terms of the contract Meanwhile, the Association filed a
grievance concerning the way the Employer was inter-
preting the contract and obtaining the Employer's agree-
ment to apply the 5-day notice provisions of the contract
to a realignment of jobs provision to reflect the inten-
tions of the negotiators of the contract
The printed contract was submitted to the Association
for signature on November 7 in the same form previous-
ly submitted on May 19 Thereafter, Manager Davidson
called Association President Wilder about signing the
agreement and was informed that Wilder had questions
about signing it and wanted to have "his people" look at
it Wilder thereafter indicated to Davidson that they had
problems with the 10-hour day and pension-bonus provi-
sions and would not sign unless these items were correct-
ed At about this same time Davidson said he first heard
from Fnley and Wilder that the agreement had not been
ratified properly
As noted above, the membership vote on May 14 re-
sulted in approximately 115 votes for the tentative agree-
ment and 90 against On May 14 there were approxi-
mately 307 active employees and 7 or 8 employees who
were sick or on temporary disability Additionally, there
2 Wilder subsequently became president of the Association but there is
no evidence that Respondent knew him to be anything other than 'just a
spokesman' as characterized by Davidson
were 80 to 100 employees who were laid off but who
had recall or "panel" rights and who continued to be eli-
gible for membership in the Association but did not have
their votes on the ratification counted when two persons
in this category attempted to do so
The tentative agreement submitted to a ratification
vote on May 14 provided as follows
This Agreement shall not become effective unless
or until the same shall have been ratified by the af-
firmative vote of a majority of all AONF employ-
ees eligible for membership in the AONF Employ-
ees' Association Such ratification vote shall be
taken by secret ballot under the joint supervision of
AONF and the AONF Employees' Association
Pursuant to the terms of the Association's constitution
and bylaws the Association's executive board must first
vote whether or not a contract proposal should be sub-
mitted to the membership for ratification Specifically,
article IX, section 9 03 of the constitution and bylaws
provides
When the Bargaining Committee arrives at what it
believes is the most favorable proposed agreement
which can be reached, it shall submit such proposed
agreement for discussion and vote of the Executive
Board When the Executive Board recommends
adoption of a proposed agreement, it shall be sub-
mitted to a ratification vote of all members covered
by the agreement
III DISCUSSION
The issues in this case arose subsequent to the apparent
successful negotiation of a new collective-bargaining
agreement between the parties and the employees' return
to work after a brief work stoppage The Employer then
prepared a written agreement, however, the employees'
Association refused to sign the agreement because of its
belief that the document did not properly reflect the
terms and conditions negotiated by the parties
A The I0(b) Considerations
It is well established that Section 10(b) is tolled until
the charging party has either actual or constructive
notice of the alleged unfair labor practice The notice,
whether actual or constructive, must be clear and un-
equivocal, and the burden of showing such notice is on
the party raising the affirmative defense of Section 10(b),
see Service Employees Local 3036 (Linden Maintenance),
280 NLRB 995 (1986)
Here, Respondent ,contends that the charge herein
should be time-barred because it was not filed until De-
cember 1, more than 6 months after the Employer was
made aware on or about May 23, 1988, that Respondent
disputed the correctness of the Company's draft of the
parties' tentative agreement when Roger Fnley and
Wayne Harvey, both officers of the Association and
members of the Association negotiating committee, as
well as Ora Combs, another bargaining unit employee on
the committee, complained to the Company's manager of
FALCON COAL CO EMPLOYEES' ASSN 857
human resources that the draft language had changed
and that the Company was operating differently from
what had been negotiated at the bargaining table
The Association did not respond formally to the Em-
ployer's request that the draft agreement be reviewed
and returned by May 23, however, its officers made the
Employer aware of its disagreement and the Employer
was sufficiently concerned over this response that it initi-
ated a mid-June meeting with the Association to "clear
the air" concerning the understanding
The Employer's manager of human resources said that
he felt that he had convinced the Association representa-
tives, including Fnley and Harvey, the two persons who
originally complained about the differences, however, he
also admitted that "I still think those fellows felt like,
well, the intent was not there"
The Association's concern was revived when the Em-
ployer next submitted a document for signing November
7 (a delay of almost 5 months after the June meeting)
and it refused to sign for two expressed reasons the 10-
hour day and pension-bonus provisions and the validity
of the ratification vote
As further discussed below, I find that the 10-hour day
provision was especially significant and was an issue
where it appears that the agreement reached during ne-
gotiations is not accurately reflected in the written terms
of the contract
Here, I find that on or about May 23 the Employer
had clear and unequivocal constructive notice that the
Association would decline to accept the Employer's
draft of the proposed agreement This issue is the sub-
stance of the charge filed more than 6 months latter The
question remains as to whether the intervening actions or
nonactions by the parties show that the Association
abandoned its position for a time so that it should be
considered that its refusal to sign the printed contract in
November should be the date relevant to the tolling of
the 10(b) period
The Association's subsequent conduct included filing a
grievance on June 7 which challenged the Employer's
procedures in a realignment of jobs under the "pro-
posed" contract Manager Davidson testified and admit-
ted that certain language requiring a Company!-
Association meeting had been omitted from the contract
and should have been included in the text of the wntten
proposal and the Employer thereafter applied the omit-
ted language
The most relevant conduct by the Employer occurred
when it called a mid-June meeting to "clear the air" over
the perceived differences in the contract
Manager Davidson's testimony concedes that he left
the meeting with a belief that those persons representing
the Association still felt the written agreement did not
reflect the intent of the negotiation agreement In re-
sponse to a question from the General Counsel which
asked, "Do you recall any comments made by the people
on the Association's side indicating whether or not they
felt they had resolved anythmg9" Davidson answered
Yes In the general lay of things going around, I
think somebody on the Association's side made a
comment to Bill Wilders You know, Bill, what do
you think or what—And Bill kind of just grinned
and looked back And he said, Looks to me like you
got a contract
Here, the expressed purpose of the meeting was to
"clear the air," however, after the Employer basically
reasserted its position, and it learned that the Association
thought that the contract draft did reflect the intent of
the negotiated agreement It did not ask whether or-not
the Association would now agree to sign the contract as
drafted No company witness testified as to any other
specific actions taken or conclusions reached, however,
the suggestion is presented that the Employer apparently
made an assumption that it would go forward with the
draft contract because its representative, Davidson, over-
heard a comment by an Association member (not then an
official and characterized by Davidson as "just a spokes-
man"), that it "looks to me like you got a contract"
Despite its asserted speculative belief that it had re-
solved the contract language problem, it inconsistently
made no effort to expedite execution of an agreement
and, in fact, continued operations under the customary
10-hour day practice that was the principal matter of
concern to the Association
After a passage of some 5 months, "late in the fall, No-
vember, somewhere" as Davidson testified, the Company
went to an 8-hour day and, as noted, it contemporane-
ously submitted the printed but unmodified contract to
the Association for signature
Here, the Association's asserted obligation to accept
the apparent contract arose on May 23, the time speci-
fied for review and return of the draft contract sent to
the Association on May 19 Responsible officers of the
Association verbally informed the Employer that the lan-
guage had been changed and was different than the pro-
posal negotiated The Association otherwise specifically
failed to respond in writing to the Employer's request
that it review and return the draft contract As a result
of these actions by the Association the Employer could
not reasonably expect that the document would be ap-
proved The fact that it did not have those expectations
is confirmed by its initiated attempted to "clear the air"
in the mid-June meeting with the Association Despite
the assertion by Davidson that he overheard a spokes-
man tell other persons from the Association that it
looked like they had a contract, there is no showing that
any Association official made any direct communication
to the Employer which would indicate that their con-
cerns over the appropriateness of the draft were resolved
or that they were now in a frame of mind to approve the
draft contract To the contrary, Davidson candidly testi-
fied that he thought that "Those fellows felt like, well,
the intent was not there"
This clearly was conduct on the part of the Associa-
tion which is consistent with it initial refusal to approve
the draft contract and it can not be interpreted as con-
duct which would reasonably lead the Employer to be-
lieve that the Association had changed its mind and
would now approve the contract language Moreover,
there was no conduct or action on behalf of the Employ-
er (such as promptly resubmitting a contract for execu-
tion or starting an 8-hour day), that would indicate that
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Employer relied in any way upon the statement of an
employee spokesmen regarding the Associations position
on approval of the contract
The Employer acknowledged that preservation of the
regular 10-hour day was a major subject of the negotia-
tions and that it was a matter of significant concern to
the Association The language of the draft contract had
omitted matters pertaining to the 10-hour day that were
contained in the old contract and which limited the Em-
ployer's authority to change the length of the workday
The Employer did not take any action regarding a re-
duction in the 10-hour workday for almost 5 months
after the June meeting and it failed to submit a complete
contract for signature to the Association during this same
period Thus, the Employer took no action that would
be consistent with Davidson's assertion that he felt that
things had been "clarified or resolved" at the June meet-
ing
The Employer's failure to exercise a change in the 10-
hour day or to resubmit the written contract for signa-
ture is consistent with a conclusion that it had had no
reasonable expectation that the Association would exe-
cute a contract that did not reflect the intent of the ne-
gotiation regarding the 10-hour day Accordingly, it
could have no reasonable expectation that the document
would be signed and returned when it belatedly made a
decision to change to an 8-hour day in November and
then contemporaneously requested execution and return
of a document the Association previously had declined
to approve
Here, the Association's problems with the written doc-
ument clearly are not mere clerical matters but go to the
heart of a major issue of negotiation The conduct of the
Respondent Association showing rejection of the docu-
ment was clearly and unequivocally communicated to
the Employer on May 23 when the Association's obliga-
tion to execute arose and that is the point at which the
statute began to run The Association did not abandon its
position regarding rejection of the unacceptable contract
language, however, the Employer's charge was not filed
until December 1, more than 6 months after controlling
the date of rejection Accordingly, I find that the charge
was not timely filed under the provisions of Section
10(b) of the Act and that the Respondent has shown
good cause for the dismissal of the complaint
B Propriety of Ratification
As noted above, the tentative agreement submitted for
a ratification vote on May 14 contained a provision that
it would be effective upon an affirmative vote of a major-
ity of all (Association) employees eligible for membership in
the Association Although the Respondent now contends
that the plurality of votes in favor of the tentative agree-
ment (115), fails to constitute a numerical majority of all
eligible voters (approximately 158), and that the ratifica-
tion is therefore invalid, the Association bylaws contain
no provision that unambiguously requires an affirmative
vote of a majority of all person eligible for membership
as distinguished from the number of eligible members ac-
tually voting Otherwise, there is no showing of past
practices or of any relevant interpretation of any compa-
rable provision
Significantly, the Supreme Court in NLRB v Borg-
Warner Corp, 356 U S 342, 345 (1958), held that a ratifi-
cation clause is not a mandatory subject of bargaining
and a company's insistence on and refusal to sign a con-
tract unless it is ratified by the employees impermissibly
dictates internal union practices regarding acceptance of
an offer, see Zayre Department Stores, 289 NLRB 1183
(1988) Here, I conclude that the Respondent's attempted
reliance on a contract ratification clause is immaterial to
a resolution of any issues in this proceeding, inasmuch as
the asserted limitation is not a provision of the Associa-
tion's bylaws and it otherwise is therefore inappropriate
and unenforceable in this context
C Correctness of Contract Terminology
The record shows that the subject of the 10-hour-day
clause was considered by the Employer's manager of
human resources to be one of four "really big issues"
considered during negotiations It otherwise is shown
that the employees had worked 10 hours per day, 5 days
per week, for many years, that resulted in employees re-
ceiving 10 hours' pay at overtime rates each week, and
that language concerning this matter was included in
Section 3(c) of the 1985-1988 labor agreement which
provided that "a basic workday shall presently consist of
ten (10) hours" subject to change only as a result of spe-
cific circumstances, generally beyond the Company's
control, as outlined in sections 3(e) and (f)
As part of the 1988 negotiations, however, the Compa-
ny proposed an option for it to go to an 8-hour day As-
sociation President Watts testified that it was agreed
after protracted bargaining that "the language regarding
a 10-hour day would remain the same as in the prior
contract" No testimony that might tend to refute or
contradict Watts' description was adduced This agree-
ment on retention of the 10-hour-day provision was
reached during the first bargaining sessions held in Lex-
ington and was not the subject of any later negotiations
Watts informed employees that the 10-hour-day language
would stay the same, however, in fact, this language
from the existing contract was deleted by the Company
from both the draft agreement circulated prior to the
ratification vote and from the documents submitted to
the Association for review and execution, on May 23 and
November 7, respectively
The record also shows that prior to the ratification
vote the president of the Employer sent a memorandum
to employees which purported to summarize the pro-
posed labor agreement The memo goes through details
regarding 21 items "obtained" through bargaining, items
"reduced" through bargaining, and 12 items "retained"
through bargaining, but says nothing about any changes
in the 10-hour-day language or its proposal regarding
this item As pointed out by the Respondent, the Em-
ployer's drafts of contracts submitted to employees used
the old contract with bold-face type to indicate language
which was new to the agreement, but it provided no in-
dication of what language if any, was omitted
As otherwise noted above, the Association brought the
subject of the missing language to the Company's atten-
tion on May 23, however, no apparent effort was made
FALCON COAL CO EMPLOYEES ASSN 859
by the Company to redraft this language and it was re
submitted to the Association in the same form on No
vember 7
Here the 10 hour day provision is acknowledged by
the Employer to have been one of the four biggest issues
subject to negotiations and accordingly I find that the
disputed language omission goes to a substantive contract
issue and the document s specific contends cannot be
considered to reflect only a minor alternation, an mad
vertent or typographical error or an insignificant vana
tion or misunderstanding The record further shows that
the terms orally bargained regarding this issue dunng ne
gotiations are not reflected in the wntten agreement pre
pared by the Employer (nor was any change in this item
brought to the employees attention in the Company s
memo to them pnor to the ratification vote) I find that
the document submitted for execution (as well as the
document submitted for ratification and review) fails to
accurately reflect and incorporate the clear intent of the
Association on an issue of substantive importance Ac
cordingly the Employer s insistence on the execution of
a document which incorrectly reflect the language and
intent of the orally negotiated agreement equates with a
showing that the contract document does not represent a
meeting of the minds and mutual understanding on a cnt
ical element of the negotiations
Under these circumstances the Respondent Associa
tion is not obligated to execute a collective bargaining
contract that fails to correctly reflect the agreed upon
terms and accordingly, I also find that a consideration of
the issues presented on their ments leads to the conclu
mon that the General Counsel has failed to show that the
Respondent s refusal and failure to execute this contract
is a violation of Section 8(b)(3) of the Act as alleged
ORDER3
The complaint is dismissed in its entirety
3 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses