Harger Mine # 1

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 461 (N.L.R.B. 1977)

HARGER MINE #1l
Pryor Mountain Construction Co. Inc., d/b/a Harger
Mine #1 and Local 520, International Union of
Operating Engineers, AFL-CIO. Case 14-CA-
9584
June 24, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On March 14, 1977, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Murphysboro, Illinois, on November 1,
1976.1 The charge was filed by the Union on August 25
(amended September 7), and the complaint was issued on
September 30. The primary issue is whether the Company,
the Respondent, unlawfully discharged two employees for
instigating a work stoppage, in violation of Section 8(aX3)
and (I) of the National Labor Relations Act, as amended.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, an Arkansas corporation, is engaged in
operating coal mines in Illinois, where it annually ships
products valued in excess of $50,000 directly to customers
All dates are in 1976.
2 The Company's unopposed motion to correct the transcript, dated
December 2, is granted and received in evidence as Resp. Exh. 1.
230 NLRB No. 67
located outside the State. The Company 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, and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
H. ALLEGED UNFAIR LABOR PRACTICES
A. The Discharges
The Company and the Union were parties to a I-year
collective-bargaining agreement, expiring on June 8. It
contained exclusive hiring hall and union-security provi-
sions, and covered all operation and maintenance work at
the coal mine, but did not contain either a grievance-
arbitration procedure or a no-strike clause.
On Thursday afternoon, March 25, partsman and
equipment buyer Elijah Chamness (not a member of the
bargaining unit) drove a backhoe to the worksite from a
nearby mine, and began trying it out to determine whether
the Company should purchase it. He operated it-in the
presence of Mine Superintendent Earl Long-until 11 p.m.,
producing a total of four or five loads of coal. He was than
"ready for the relief man [whom another supervisor had
promised him] to run it so I could see what wasn't
performing on it." The relief man did not arrive, and
Superintendent Long did not assign one of the operators
on the job to relieve him. Chamness continued to operate
the backhoe, producing three additional loads of coal by
the end of the night shift. (Chamness was a salaried
employee, who was not paid extra for working the 16 hours
on the machine.) Thereafter, beginning at 7 a.m., bargain-
ing unit employees operated the backhoe.
At the shift change that Friday morning, March 26,
employees on the job were complaining about the nonbar-
gaining unit employee operating the equipment in violation
of the collective-bargaining agreement. Employee Steve
McDonnough telephoned Union President Francis Os-
born, who told McDonnough to get Chamness off the
machine by doing "whatever he had to." By then, however,
Chamness had already left the job.
On Sunday, March 28, partsman Chamness returned to
the worksite to perform his regular job of inspecting
equipment, to determine what parts were needed. Employ-
ee McDonnough, Acting Steward Louis Marlette, and four
other employees were eating lunch together when Cham-
ness arrived in a company truck and began talking to
someone in the pit. Although they knew that Chamness
had previously been at the worksite to perform his own
work, they opposed his presence because of his operation
of the backhoe the previous Thursday night. As testified by
Marlette, "It was a general statement by everybody that
Chamness is here. He is not supposed to be here. That he
should leave." McDonnough sent word to Superintendent
Long, "Either he goes or we go." The response was, "Mr.
Chamness stays." The six employees, joined by two others,
walked out.
Acting Steward Marlette telephoned Union President
Osborn that afternoon and reported that the feeling was so
strong about Chamness' return to the job after his
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unauthorized operation of the equipment that they did
"whatever they had to do." Osborn instructed Marlette to
get all the men and go back to work to protect their jobs
and said "we were having trouble and I didn't want a strike
at that time." Later that afternoon, Superintendent Long
telephoned Osborn who told Long that the walkout was
not sanctioned by the Union.
When the day-shift employees returned to work the next
morning, March 29, Marlette and McDonnough were
discharged for instigating the unauthorized walkout.
B. Concluding Findings
It is clear that the Company violated the collective-
bargaining agreement on Thursday night by permitting the
partsman to operate the backhoe in the production of coal.
However, the partsman had not operated the backhoe since
then, and he had legitimately come to the worksite on
Sunday to perform his own nonbargaining unit work.
When the operators walked off the job that Sunday, they
were not acting to prevent the partsman from performing
their work. Bargaining unit employees had been operating
the backhoe since Friday morning, and there was no
indication that the Company would again assign the
partsman to operate it.
I assume, in the absence of grievance and no-strike
provisions in the collective-bargaining agreement, that the
employees would have been engaging in protected, con-
certed activity if they had walked off the job to obtain a
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
remedy for the earlier violation of the agreement, or to
prevent partsman Chamness from again performing their
bargaining unit work. But here, the purpose of the walkout
was to force Chamness to leave the worksite, thereby
preventing him from performing his own regular, nonbar-
gaining unit work there. By walking out, the employees
were not attempting to enforce the collective-bargaining
agreement or to improve their working conditions, and
were not engaged in protected, Section 7 activity for the
purpose of mutual aid or protection. I therefore find that
the March 28 walkout was unprotected activity.
Contrary to the position of the General Counsel, I agree
with the Company and find that the Company did not
violate the Act by discharging employees McDonnough
and Marlette for instigating the unprotected walkout.
CONCLUSION OF LAW
By discharging employees McDonnough and Marlette
on March 29, 1976, for instigating the unprotected March
28 walkout, the Company acted lawfully and did not
violate Section 8(aX3) or (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 3
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
462