International Union, UMW

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 592 (N.L.R.B. 1967)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union , United Mine Workers of
America and J. V. McCoy and Partners
d/b/a McCoy Coal Company. Case 10-
CB-1643.
June 19,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 6, 1967, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner,' and
hereby orders that the Respondent, International
Union, United Mine Workers of America, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order.2
i We hereby correct an inadvertent typographical error in the
last line of the first indented paragraph of the "Appendix" to the
Trial Examiner 's Decision by substituting the word "termination"
for the word "discrimination."
1 The address and telephone number for Region 10 , appearing
at the bottom of the Notice attached to the Trial Examiner's
Decision , is amended to read : 730 Peachtree Street , N E, Room
701, Atlanta , Georgia 30308, Telephone 526-5741.
TRIAL EXAMINER'S DECISION
WELLINGTON A. GILLIS, Trial Examiner: This case was
heard by me on January 5, 1967, at Haleyville, Alabama,
and is based upon a charge, filed on October 5, 1966, by J.
V. McCoy and Partners , doing business as McCoy Coal
Company, upon a complaint, issued on November 28,
1966, by the General Counsel for the National Labor
Relations Board against International Union , United Mine
Workers of America, alleging violations of Section 8(b)(3)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), and upon an answer timely
filed by the Respondent denying the commission of any
unfair labor practices.'
At the hearing , all parties were represented by counsel
and were afforded full opportunity to be heard, to
introduce evidence pertinent to the issues , and to engage
in oral argument . Shortly after the opening of the hearing,
the parties stipulated the facts pertaining to this matter.
Subsequent to the close of the hearing , timely briefs were
filed by counsel for the General Counsel, the Charging
Party, and the Respondent.2
Upon the entire record in this case,3 I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE CHARGING COMPANY
J. V. McCoy and Partners doing business as McCoy
Coal Company is a partnership with its office and place of
business near Natural Bridge, Alabama, where it is
engaged in the mining, processing, and sale of coal. During
the past calendar year, McCoy sold and shipped products
valued in excess of $50,000 directly to customers located
outside the State of Alabama. I find that the Charging
Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE RESPONDENT LABOR ORGANIZATION
The parties admit, and I find, that International Union,
United Mine Workers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Whether the Respondent violated Section 8(b)(3) of the
Act by engaging in a strike without complying with the
requirements of Section 8(d)(1), (2), (3), and (4).
I Hereinafter the Charging Party will be referred to as McCoy
or the Company, the International Union, United Mine Workers of
America, as the Respondent or the Union; the National Labor
Relations Board, as the Board ; and the National Labor Relations
Act, as the Act.
I Subsequent to the close of the hearing and to the time set for
the filing of briefs , I received from counsel for the General
Counsel a letter indicating, in effect, that he had not received a
copy of the Respondent 's brief as required by the Board's Rules
and Regulations , Series 8, as amended In the course of my
deliberations in this matter , and prior to receiving said motion, I
referred to the briefs submitted by all parties, including that
received from the Respondent . In view of my ultimate findings
and conclusions herein, it is apparent that my reliance on
Respondent 's brief has, in no way , prejudiced the position of the
General Counsel.
' The typewritten transcript of this proceeding is replete with
errors, most of which are covered by a motion to correct the
transcript filed by counsel for the General Counsel subsequent to
the close of the hearing . The said motion , to which no objections
were filed, is hereby granted , and is received in evidence as Trial
Examiner's Exhibit 1 In addition to the corrections noted by the
motion, I further correct the transcript by changing , wherever
they appear , the words "mute" and "muteness ," respectively, to
"moot " and "mootness."
165 NLRB No. 67
INTERNATIONAL UNION, UMW
B. Stipulated Facts
The Company and the Respondent on or about April 17,
1964, entered into a collective-bargaining agreement of
indefinite duration, covering the Company's production
and maintenance employees4 and containing a provision
permitting either party to terminate the contract on or
after March 31, 1966, by giving 60 days' written notice.5 At
a date just prior to April 11, 1966,6 the Union executed a
new General National Coal Wage Agreement with a
number of major coal operators, subsequent to which
generalized work stoppages occurred throughout the
United States, including the State of Alabama. On
April 11, all of McCoy's employees went on strike and
have, at all times since, remained on strike.' Thereafter,
on or about May 1, the Union, "through employees,
accompanied by Howard Hillhouse, a representative of the
Respondent Union," - submitted to the Company a
proposed new contract, which the Company declined to
execute.
By letter, dated July 13, the Company informed the
Union that, "due to your material breach of contract ..." it
was, in accordance with the terms of the existing contract,
serving notice of its intent to terminate the contract "at the
earliest possible date." In closing, the company letter
stated that "We would be happy to meet with you for the
purpose of conferring: We have explained that we cannot
sign your new proposed contract. If you have something
we can work with, it would be a pleasure to do business
with you." Copies of this notice were served upon the
Federal Mediation and Conciliation Service and the State
of Alabama Department of Labor. On July 15, by letter to
the Company, the Respondent, after expressing surprise
at the Company's action, advised that it was "ready,
willing and able to meet ... for the purpose of conferring."
On or about August 29 each striking employee, by mail,
offered to return to work on the same terms and conditions
as existed on April 11 when he went out on strike.
On September 2, pursuant to the filing by the Union of a
representation petition on August 5, seeking certification,
a representation hearing was held in Case 10-RC-6799,
involving McCoy's employees. At the hearing the
Company moved to dismiss the petition on the ground that
there were no employees then employed in the unit. The
Company's position in this regard was in turn predicated
on its assertion that the employees involved had lost their
4 The parties stipulated , and I find, that "All production and
maintenance employees employed by McCoy at its strip coal mine
at or near Natural Bridge, Alabama, including truckdrivers, but
excluding all office clericals, technical and professional
employees, guards and supervisors as defined in the Net,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act."
5 The caption on this agreement reads: "National Bituminous
Coal Wage Agreement of 1950 as Amended Effective April 2,
1964 "
0 Unless otherwise specified, all dates herein refer to 1966.
r In fact , no employees have worked in the unit since April 11.
" A request for review of the Decision and Direction of Election
is currently pending before the Board
Sec. 8(d) of the Act provides in pertinent part the following:
... That where there is in effect a collective-bargaining
contract covering employees in an industry affecting
commerce , the duty to bargain collectively shall also mean
that no party to such contract shall terminate or modify such
contract , unless the party desiring such termination or
modification-
(1) serves a written notice upon the other party to the
contract of the proposed termination or modification sixty
593
employee status under the Act because of their having
engaged in an unlawful strike on and since April 11,
unlawful because of a failure to render notice pursuant to
Section 8(d) of the Act. Subsequent to the hearing, in
issuing his Decision and Direction of Election on
October 5, and directing an election in the production and
maintenance'unit for which the Union sought certification,
the Regional Director denied the Company's motion to
dismiss on the ground that it was based upon an assertion
of an 8(d) violation and thus constituted an allegation of an
8(b)(3) unfair labor practice, which, under Board practice,
could not be litigated in a representation proceeding." On
this same date, October 5, the Company filed the instant
8(b)(3) charge against the Respondent. The stipulated
record reveals that, in addition to the fact that the strike
has continued at all times since April 11, picketing
occurred for a 10-day period shortly after May 1, and again
on and since October 7.
C. Contentions and Conclusions
Pure and simple, the above facts show, and the parties
admit, that employee members of the Union went on strike
on April 11, that at no time before or after was a notice
served upon the Company by the Union of the latter's
intent to modify or terminate the existing contract, or an
offer made by the Union to meet with the Company for the
purpose of negotiating a new or modified agreement. It is
further undisputed that at no time did the Union notify the
Federal or State mediation services of the existence of any
contract dispute.
The General Counsel contends that the Union went on
strike in violation of Section 8(d)(1), (2), (3), and (4) of the
Act," and, accordingly, violated Section 8(b)(3) of the Act.
The Respondent, in stipulating to the above facts, but
denying that it had engaged in a violation of the Act,
asserts that (a) the evidence fails to establish that the
Union was responsible for the work stoppage at the
Company's operation, (b) the Company's own action in
subsequently cancelling the contract rendered it
unnecessary as well as futile for the Union to comply with
the requirements of Section 8(d), t" and (c) in any event, the
matter has become moot and no purpose can be served by
issuing a Board order.
I find the Respondent's position to lack merit. As to the
proposition that the evidence fails to show union
days prior to the expiration date thereof, or in the event such
contract contains no expiration date, sixty days prior to the
time it is proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract
containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Service
within thirty days after such notice of the existence of a
dispute, and simultaneously therewith notifies any State or
Territorial agency established to mediate and conciliate
disputes within the State or Territory where the dispute
occurred , provided no agreement has been reached by that
time; and
(4) continues in full force and effect , without resorting to
strike or lockout , all the terms and conditions of the existing
contract for a period of sixty days after such notice is given or
until the expiration date of such contract , whichever occurs
later . .
10 In conjunction with this argument , the Union casts adverse
reflection on the good -faith motivation of the Charging Party by
emphasizing the fact that the contract , necessarily relied on as the
basis for this proceeding , has been cancelled by the Company
prior to the filing of the charge and the issuance of the complaint.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibility for the employee strike action, it was made
clear on the record by counsel for the Respondent that the
purpose of the employees in going out on strike was to
secure a new contract. The undisputed evidence
establishes further that the striking employees were
members of and represented under contract by the Union
and that, simultaneous with the establishment of a picket
line on or about the first of May, the Union, through the
striking employees and accompanied by an official of the
Union, proposed a new contract to replace the existing
agreement. On these facts, and particularly in the absence
of an affirmative disavowal by the Respondent of
responsibility for the strike action, either at the time or
subsequently, I find that the Respondent condoned and
induced the employee strike action from its
commencement, and, therefore, contrary to its assertion, it
is responsible for the work stoppage.
Nor, as additionally asserted by the Respondent, does
the fact that the Company subsequently cancelled the
contract excuse the Union from initially complying with
the requirements of Section 8(d), for the precise language
of that section places the responsibility for compliance
upon the party desiring to terminate the existing contract.
Thus, nothing the Company did at a later date obviated the
necessity or rendered it futile for the Union to comply with
Section 8(d) before engaging in a strike . Nor can it be said
that the matter has become moot and that no purpose can
be served by issuing a Board order. Section 8(d) was
legislated into the Act for a purpose, namely, to assure that
collective bargaining between contract parties would
proceed for a reasonable time free from direct economic
pressures. When, as here, that purpose is not
accomplished because of the failure of one of the parties to
the contract to adhere to the 8(d) requirements, a violation
has occurred and a remedy is compelled.
Moreover, the penalty for failure to observe the 8(d)
provisions runs not only to the contract party, but to the
striking employees as well." As the strike herein was,
from its inception, unlawful, the employees who went on
strike engaged in an unlawful activity, the penalty for
which is the loss of employee status and the forfeiture of
rights under the Act. 12 Accordingly, as of April 11, when
all of McCoy's employees unlawfully went on strike, said
employees severed their employee relationship with the
Company and, therefore, no longer remain as employees of
McCoy for any purpose under the Act, including the
casting of ballots in a representation election under
Section 9 of the Act.13
On the record as a whole, I find that the Respondent
refused to bargain within the meaning of Section 8(b)(3) of
the Act by failing to comply with the requirements of
Section 8(d) of the Act, as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activites of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Company in section I, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent refused to bargain
collectively in violation of Section 8(b)(3) of the Act by
engaging in a strike commencing on April 11, 1966,
without complying with the mandates of Section 8(d)(1),
(2), (3), and (4) of the Act, I shall order the Respondent to
cease and desist from violating Section 8(b)(3) by striking
without complying with Section 8(d).
CONCLUSIONS OF LAW
1. J. V. McCoy and Partners doing business as McCoy
Coal Company was, at all times material to this
proceeding, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent, International Union, United Mine
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by McCoy at its strip coal mine at or near
Natural Bridge, Alabama, including truckdrivers, but
excluding all office clericals, technical and professional
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The Respondent has refused to bargain collectively
in violation of Section 8(b)(3) of the Act by failing to comply
with Section 8(d) of the Act, as found in section III, above.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that International Union, United Mine
Workers of America, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with J. V. McCoy
and Partners doing business as McCoy Coal Company, or
its successors," concerning the termination or
modification of any collective-bargaining contract between
it and the Company by failing, before striking, to (1) serve
60 days, written notice of its intention to modify or
terminate a collective-bargaining contract pursuant to
Section 8(d)(1) of the Act; (2) offer to meet and confer with
the Company for the purpose of negotiating a new or
modified contract pursuant to Section 8(d)(2) of the Act; (3)
give notice of the existence of any dispute between the
Respondent and the Company to the Federal and State
Mediation Services pursuant to Section 8(d)(3) of the Act;
and (4) continue in full force and effect without resorting to
Sec. 8(d) further provides in part the following:
Any employee who engages in a strike within the sixty-day
period specified in this subsection shall lose his status as an
employee of the employer engaged in the particular labor
dispute, for the purposes of sections 8, 9, and 10 of this Act,
as amended, but such loss of status for such employee shall
terminate if and when he is reemployed by such employer.
'2 See Fart Smith Chair Company, 143 NLRB 514, 518.
13 Their lost employee status as employees of McCoy may be
regained only in the event that they are subsequently reemployed.
14 As it appears that the operations of the McCoy Coal
Company have, since October 1, 1966, been taken over by Natural
Bridge Coal Co., Inc., the cease -and-desist provisions of this
Recommended Order run to "McCoy Coal Company, or its
successor."
INTERNATIONAL UNION, UMW
strike all the terms and conditions of any existing contract
pursuant to Section 8(d)(4) of the Act; provided, however,
that no such notices under Section 8(d)(3) shall be required
if an agreement is reached within 30 days following service
of a notice of proposed termination or modification.
(b) Engaging in, or inducing employees of McCoy Coal
Company, or its successors, to engage in, a strike against
said Company for the purpose of modifying or terminating
a collective-bargaining contract, without first having
complied with the requirements of Section 8(d) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at the local business offices of International
Union, United Mine Workers of America, copies of the
attached notice marked "Appendix."15 Copies of said
notice, to be furnished by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days, thereafter, in conspicuous places,
including all places where notices to Respondent's
members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notice is
not altered, defaced, or covered by any other material.
(b) Furnish said Regional Director for Region 10 signed
copies of the aforesaid notice for posting by McCoy Coal
Company, or its successors, it being willing, at places
where it customarily posts notices to its employees.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Trial
Examiner's Decision, what steps the Respondent has
taken to comply herewith.1'
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION,
UNITED MINE WORKERS OF AMERICA, AND TO ALL
EMPLOYEES OF MCCOY COAL COMPANY
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
"In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the BoaYd's Order is enforced by
a decree of a United States Court of Appeals, the words " a Decree
of the United States Court of Appeals Enforcing an Order" shall
595
WE WILL NOT refuse to bargain collectively with J.
V. McCoy and Partners doing business as McCoy
Coal Company, or its successors, concerning the
termination or modification of any collective-
bargaining contract between our Union and the
Company by failing, before striking, to (1) serve 60
days' written notice of our intention to modify or
terminate such collective-bargaining contract
pursuant to Section 8(d)(1) of the Act; (2) offer to meet
and confer with the Company for the purpose of
negotiating a new or modified contract pursuant to
Section 8(d)(2) of the Act; (3) give notice of the
existence of any dispute between our Union and the
Company to the Federal and State Mediation Services
pursuant to Section 8(d)(3) of the Act; and (4) continue
in full force and effect without resorting to strike all
the terms and conditions of any existing contract
pursuant to Section 8(d)(4) of the Act; provided,
however, that no such notices under Section 8(d)(3)
shall be required if an agreement is reached within 30
days following service of a notice of proposed
discrimination and modification.
WE WILL NOT engage in, or induce employees of
McCoy Coal Company, or its successor, to engage in,
a strike against said Company for the purpose of
modifying or terminating a collective-bargaining
contract, without first having complied with the
requirements of Section 8(d) of the Act.
INTERNATIONAL UNION,
UNITED MINE WORKERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street, NE., Atlanta,
Georgia 30323, Telephone 526-5760.
be substituted for the words "a Decision and Order."
16 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."