Mountaineer Exacavating Co.

National Labor Relations Board - Board Decisions

Mar 23, 1979

241 N.L.R.B. 414 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mountaineer Excavating Co., Inc. and United Mine
Workers of America (International Union), District
28. Case 5-CA-9104
March 23. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon charges duly filed, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 5, issued a complaint and notice
of hearing, dated March 2, 1978, against Mountain-
eer Excavating Co., Inc., hereinafter referred to as
Respondent. The complaint alleges that Respondent
has engaged in certain unfair labor practices affecting
commerce within the meaning of Sections 8(a)(5) and
(I) and 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charges and com-
plaint and notice of hearing were duly served on the
parties. Respondent filed an answer to the complaint,
denying commission of any unfair labor practices.
Thereafter, the parties entered into a stipulation of
facts and jointly petitioned the Board to transfer this
proceeding directly to itself for findings of fact, con-
clusions of law, and Order. The parties stipulated that
they waived a hearing before, and the making of find-
ings of fact and conclusions of law by, an Administra-
tive Law Judge, and the issuance of an Administra-
tive Law Judge's Decision, and that no oral testimony
was necessary or desired by any of the parties. The
parties also agreed that the charges, complaint and
notice of hearing, Respondent's answer to the com-
plaint, and the stipulation of facts, including the ex-
hibits attached thereto, constitute the entire record in
this case.
On September 27, 1978, the Board issued its order
approving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General Coun-
sel and Respondent filed briefs in support of their
positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the stipulation, includ-
ing the exhibits, the briefs, and the entire record in
this proceeding, and hereby makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, Mountaineer Excavating Co., Inc.,
is, and has been at all times material herein, a corpo-
ration duly organized under, and existing by virtue of,
the laws of the State of Virginia, engaged in the sur-
face mining of coal, having its principal office and
place of business in Big Stone Gap, Virginia. During
the past year, which period is representative of its
annual operations generally, Respondent, in the nor-
mal course and conduct of its business, shipped in
interstate commerce coal valued in excess of $50,000
directly to points located outside the State of Vir-
ginia.
The parties have stipulated, and we find, that Re-
spondent is, and has been at all times material herein,
an employer engaged in commerce and in a business
affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, United Mine Workers of America (In-
ternational Union), District 28, is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Respondent commenced its coal mining operations
in July 1977. On July 6, 1977, Respondent and the
Union entered into a collective-bargaining agreement
whereby Respondent recognized the Union as the
representative of its employees and agreed to be
bound by the terms of the National Bituminous Coal
Agreement of 1974, effective December 6, 1974, to
December 6, 1977. Respondent is not amember of the
Bituminous Coal Operators Association (BCOA). On
July 28, 1977, the International Union, acting on be-
half of District 28, notified Respondent of the Union's
intention to terminate the agreement and indicated it
was prepared to meet and confer with Respondent for
the purpose of negotiating a new agreement and to
engage in good-faith collective bargaining. On Sep-
tember 26, 1977, Respondent wrote the International
Union indicating that it also desired to terminate the
contract and requested that a representative of Dis-
trict 28 contact it when it was ready to begin negotia-
tions on a new agreement. There were no further
communications between the parties until December
1, 1977.
On December 1, 1977, Tom Cooper, Respondent's
president, wrote Ray Marshall, president of District
28, noting the earlier communications and comment-
ing that Respondent had not heard from anyone in
the Union regarding Respondent's request to begin
bargaining. Cooper further noted that from the news-
papers it appeared that there would be a strike after
241 NLRB No. 80
414
MOUNTAINEER EXCAVATING CO., INC.
December 6 because of the failure of the Union and
BCOA to reach an agreement covering the BCOA
members, that Respondent was not a member of
BCOA, that it was not obligated to sign any agree-
ment entered into with BCOA, and that it was willing
to negotiate with the Union for a new agreement be-
tween it and the Union. Cooper went on to state:
If there is a strike called December 6th, we
understand that the health care insurance bene-
fits under the present contract will be cut off for
our miners and their families due to lack of
funds. If this happens, it is our intention to pro-
vide our men with a new life and health care
insurance policy. We also want to negotiate a
better pension plan for our men.
We will be happy to answer any questions you
may have about our proposed insurance and
pension benefits we would like to give our men
and their families. We will be happy to negotiate
with you on these and other proposals at your
earliest convenience.
During the evening of December 1, a previously
scheduled dinner meeting of management and the
employees was held. Most of the employees attended
the meeting. During the course of the meeting, copies
of Tom Cooper's speech were distributed to the em-
ployees and, following his speech, Phil Cooper, Re-
spondent's business manager and secretary, presented
the proposed health and pension plan referred to by
Tom Cooper in his speech. According to the printed
version of the speech, Tom Cooper told the employ-
ees:
And the-worst part of it all, according to Ar-
nold Miller and the UMW officials, it looks like
your hospital card may not be any good after the
strike begins. From what I can read and hear,
the union is saying that your health and welfare
fund is almost bankrupt and they may not pay
any benefits at all during the strike. If the miners
walk out December 6th, medical benefits will be
cut off immediately.
They say that pension payments could be cut
from the first week in January.
As you know, since the health and welfare and
pension funds are financed and paid for by coal
companies royality payments, if there is no coal
being produced, there will be no royalties paid
into the funds during the strike. A long strike will
completely bankrupt every UMW health and
welfare and pension fund for future benefits.
For those miners who do not work during the
strike, the $100 weekly sickness and accident
benefit could be lost to them. Under the law, the
coal operators are not required to continue pay-
ing the insurance premiums for the $100 weekly
sickness and accident benefit.
We intend to keep paying this premium for
every man who continues to work for us during
the strike.
What about your hospital and doctor bills for
yourself and your family? What are you going to
do about it? Unless you have enough money
saved to pay these bills, they may not give you
any services at the clinics except for cash.
We have thought a lot about this serious prob-
lem for you and your family. We have contacted
several insurance companies that provide good
health care benefits for employees and their fam-
ilies.
We have come up with what we consider to be
one of the best health care insurance programs.
The beauty of this plan is that the hospital bene-
fits are guaranteed to you and your family when
you need them during the strike.
If your hospital and medical benefits are cut
off next Wednesday, we intend to cover all of our
men who continue working under this new hos-
pital insurance plan for Mountaineer.
What will it cost you? Absolutely nothing.
On December 5, 1977, Tom Cooper met with the
employees at the worksite and, since the contract was
due to expire the next day and the UMW had called
a strike for December 6, he asked the employees for a
show of hands as to who would not work the next
day. None of the employees raised their hands, and
Cooper then told them their jobs would be available.
During this same meeting, employee Baker handed
Cooper a petition signed by 10 of the 13 employees,
stating that they wished to withdraw from the UMW.
The parties stipulated that Baker began circulating
the petition prior to December 1, 1977, and that there
was no evidence to show that Cooper knew of the
petition prior to his receiving it.
On December 6, 1977, the UMW commenced its
nationwide strike against the BOCA, which was ulti-
mately settled on March 27, 1978, when the UMW
ratified the new contract. On December 6, Respon-
dent put into effect its new hospitalization and pen-
sion plans. Approximately 2 weeks later, Cooper,
without any consultation with the UMW, granted
employees a week's vacation during the Christmas
period.
On January 3, 1978, District 28 filed a charge alleg-
ing that since on or about December 6, 1977, Respon-
dent interfered with, restrained, and coerced its em-
ployees in violation of Section 8(a)(1) of the Act. On
January 31, 1978, Marshall, president of District 28,
wrote Respondent referring to Respondent's letter of
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 1, 1977, and to the unfair labor practice
charge filed herein, stating that the UMW is, and has
been, ready and willing to engage in good-faith nego-
tiations with Respondent, and offered to begin nego-
tiations with Respondent. There were no further com-
munications between Respondent and representatives
of the UMW and, on March 2, 1978, the instant com-
plaint was issued by the Regional Director for Region
5.
B. Contentions of the Parties
The General Counsel contends that Respondent
unilaterally offered its employees substantial benefits
without notice to or bargaining with the Union: that
Respondent raised no evidence of a good-faith doubt
of the Union's majority status as of December 1,
1977; that the Union's contract was still in effect as of
that date; that Cooper's December I speech was di-
rected toward discouraging its employees from par-
ticipating in the impending strike; that it was an at-
tempt by Respondent to undercut the Union's
majority status by offering a company health and
pension plan at a time when the employees were fac-
ing a possible loss of such coverage because of the
impending strike; that the offer of such benefits, cou-
pled with Cooper's interrogation of the employees on
December 5 with regard to their intentions about the
impending strike, was an attempt to bargain individ-
ually with the employees; that such conduct inter-
fered with the employees' Section 7 rights; and that
by such conduct Respondent violated Section 8(a)(l)
and (5) of the Act.
Respondent contends that its December I meeting
with the employees, where it discussed the potential
failure of the Union's health and welfare plans, vio-
lated neither Section 8(a)(1) nor 8(a)(5) of the Act;
that it timely notified the Union what course it would
take in the event the Union's plans failed because of a
strike; that it was incumbent upon the Union to
thereafter indicate in some manner that it disap-
proved thereof and desired to negotiate or bargain
with respect thereto; that the Union failed to request
bargaining subsequent to either of the Respondent's
letters to the Union; that, by failing to request bar-
gaining on the substitute plans, the Union waived its
right to protest the institution of the plans; and that
the facts of this case closely parallel those present in
AAA Motor Lines, Inc.,' where the Board found that
the employer did not violate the Act when it insti-
tuted various employee benefit plans in substitution
for the benefit plans that terminated with the expira-
tion of the collective-bargaining agreement.
1215 NLRB 793 (1974).
C. The Merits
The General Counsel argues that Respondent uni-
laterally approached its employees and offered them
substantial benefits without notice to or bargaining
with the Union at a time when the Union was the
bargaining representative of the employees and the
Union's collective-bargaining agreement with the Re-
spondent was still in effect; and that such conduct
was nothing more than an attempt to bargain individ-
ually with the employees in order to discourage the
employees from participating in the impending strike
and to cause the Union to lose its majority status.
Based on the particular facts of this case, we agree
that Respondent's conduct violated both Section
8(a)(1) and (5) of the Act.
Under Section 8(d) of the Act, collective bargain-
ing imposes on the parties the mutual obligation to
"meet at reasonable times" and confer with regard to
entering into a new collective-bargaining agreement.
Where, as here, both parties desired to terminate the
existing agreement upon its expiration, it was incum-
bent on both to take steps to meet at reasonable times
and confer on proposed changes. Notwithstanding
these mutual obligations, neither party, after the ini-
tial exchange of letters, took any steps to put the bar-
gaining process into motion. The UMW concentrated
its entire efforts on the national negotiations going on
with the BCOA,2 while Respondent did absolutely
nothing until its letter of December 1. From these
brief facts, it is clear that both parties failed to meet
their obligations under Section 8(d), but the failure of
one of the parties to meet its obligations does not, in
and of itself, excuse the other party from complying
with its statutory obligations.
In AAA Motor Lines, Inc., supra, we recognized an
employer's right to take action to avoid the loss of
certain employee benefits as a result of the expiration
of the collective-bargaining agreement. The facts in
that case, however, amply demonstrate that the em-
ployer, in the face of the union's avoidance and eva-
sion, made diligent and earnest efforts over a period
of approximately 2-1/2 months to bargain with the
union with regard to the various contract proposals it
had earlier submitted to the union. The record there
also showed that the employer did not discuss its pro-
posals with the employees until long after they had
been submitted to the union, and, then, instituted
only those programs which (I) had been submitted to
the union and (2) were or would normally have been
of immediate concern to the employees.
In the instant case, the stipulation and exhibits
2 We find no merit in Respondent's contention that the Union's bargaining
tactic of securing a national agreement (with the BCOA) first constituted a
waiver of its bargaining rights on behalf of Respondent's employees.
416
MOUNTAINEER EXCAVATING CO., INC.
clearly establish that Respondent intended to bypass
the Union. On November 1, 1977, Respondent ex-
ecuted a money purchase pension plan and trust
agreement with the First National Bank, but did not,
at any time prior to December 6, 1977, notify the
Union of the execution of this plan or submit the
same to the Union for its consideration
If Respondent had been desirous of (1) entering
into negotiations with the UMW, it needed only to
direct timely communications to the Union specifi-
cally requesting negotiating sessions or (2) making
particular proposals to the Union, its obligation was
to submit these proposals timely to the Union. It did
neither. Rather, Respondent played a "waiting game"
until the bargaining at the national level reached a
crisis stage, and then sent the December 1 letter to the
Union requesting negotiations and, on that very same
evening, met with the employees, predicted dire eco-
nomic circumstances, and offered them substantial
economic benefits designed to induce them to aban-
don their Union and bargain directly with Respon-
dent. Respondent obviously timed the December 1
letter so as to preclude any possibility of the Union
consulting with the employees, or any real or mean-
ingful consideration by the Union of Respondent's
stated intent to institute certain benefits as of Decem-
ber 6. In addition, notwithstanding the fact that Re-
spondent contracted for the pension plan a month
earlier, it concealed this fact by stating in the letter
that it wanted "to negotiate a better pension plan for
our men." On December 5, Respondent again unilat-
erally offered its employees substantial economic
benefits when it inquired of the employees as to
whether any of them were going to strike the next day
and advised them, without disavowing its intentions
as expressed at the December I meeting of putting
into effect different terms and conditions of employ-
ment, that their jobs would be available. Having pre-
cluded any meaningful response by the Union by vir-
tue of the timing of its actions, Respondent then took
the final step on December 6 by unilaterally putting
into effect both the hospitalization plan and the pen-
sion plan.
These facts abundantly demonstrate that Respon-
dent's contention that it fulfilled its bargaining obli-
gations under Section 8(d) of the Act, and that the
burden shifted to the Union to take action, is clearly
without merit. The facts amply demonstrate that Re-
spondent's conduct was timed and designed to deal
directly with the employees and to avoid bargaining
with the Union. It is equally clear that Respondent's
reliance on our decision in AAA Motor Lines, Inc.,
IThe stipulation and exhibits do not indicate when Respondent finalized
the agreements for the hospitalization insurance and the sickness and acci-
dent insurance, but, since these programs were discussed in detail at the
December 1 meeting, we assume that Respondent had also finalized these
programs prior to December I.
supra, is misplaced. There, the employer made timely,
diligent, and earnest efforts to negotiate with the
union, and implemented only those programs which
had both been submitted to the union and encom-
passed areas of immediate concern to its employees.
The employer specifically refrained from instituting
its proposed pension plan, leaving it for future nego-
tiations with the union. Respondent offers no expla-
nation as to why it was necessary to implement imme-
diately a substitute pension plan for employees, all of
whom had been in Respondent's employ for less than
6 months as of December 6, 1977. Finally, in AAA
Motor Lines the employer's attempt to negotiate with
the union prior to submitting its proposals to the em-
ployees negated any claim that it was attempting to
bypass the union and bargain directly with its em-
ployees in an attempt to induce them to abandon
their union.
D. Conclusions
We conclude that, by unilaterally offering its em-
ployees on December 1 and 5, 1977, substantial eco-
nomic benefits designed to induce them to abandon
their Union and bargain directly with Respondent,
Respondent interfered with its employees' Section 7
rights in violation of Section 8(a)(1) of the Act. We
further conclude that, by unilaterally implementing
these programs on December 6, and by unilaterally
changing the employees' vacation schedule in Decem-
ber 1977, in both instances without having first timely
notified the Union of its proposed actions and offer-
ing to bargain with the Union with regard to these
matters, Respondent failed to bargain in good faith in
violation of Section 8(a)(5) of the Act.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with the operations of the Em-
ployer, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead, and have led, to labor
disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the foregoing findings of fact,
conclusions, and the entire record, we make the fol-
lowing:
4 In view of our finding herein that Respondent violated Sec. 8(aX) ) of the
Act by its conduct on December I and 5, 1977, ve find and conclude that the
employees' petition of December 5, 1977, indicating that they no longer
wished to be represented by the UMWA, t he ithout any force or effect.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW ORDER
1. Mountaineer Excavating Co., Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America (International
Union) District 28, is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. All of Respondent's employees employed in a
unit as described in the collective-bargaining agree-
ment between the parties known as the National Bi-
tuminous Coal Agreement of 1974, effective Decem-
ber 6, 1974, to December 6, 1977, constitute a unit
appropriate for collective bargaining pursuant to Sec-
tion 9(b) of the Act.
4. By unilaterally offering its employees on De-
cember 1 and 5, 1977, substantial economic benefits
designed to induce them to abandon their Union and
bargain directly with Respondent, Respondent inter-
fered with its employees' Section 7 rights in violation
of Section 8(a)(1) of the Act.
5. By unilaterally implementing various economic
benefits on December 6, 1977, without having first
timely notified the employees' collective-bargaining
representative of its intent to put those benefits into
effect and offering to bargain with the said represent-
ative with regard to said benefits, Respondent failed
to bargain in good faith in violation of Section 8(a)(5)
of the Act.
6. By unilaterally changing the employees' vaca-
tion schedule by granting a -week vacation in De-
cember 1977, without having first timely notified the
employees' collective-bargaining representative of its
intent to change the vacation schedule and offering to
bargain with the said representative with regard to
this change, Respondent failed to bargain in good
faith in violation of Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
The Respondent, Mountaineer Excavating Co.,
Inc., Big Stone Gap, Virginia, its officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Unilaterally offering its employees substantial
economic benefits designed to induce them to aban-
don their collective-bargaining representative and
bargain directly with Respondent.
(b) Refusing to bargain collectively concerning
rates of pay, wages, and other terms and conditions of
employment with United Mine Workers of America
(International Union), District 28, as the exclusive
representative of its employees in the appropriate unit
which is described in the collective-bargaining agree-
ment between the parties known as the National Bi-
tuminous Coal Agreement of 1974, effective Decem-
ber 6, 1974, to December 6, 1977.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the above-referred-to appropriate
unit with respect to rates of pay, wages, hours, and
other terms and conditions of employment.
(b) Post at its Big Stone Gap, Virginia, facility cop-
ies of the attached notice marked "Appendix."6 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained by it for 60-consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
Having found that Respondent engaged in, and is
engaging in, certain unfair labor practices, we shall
order that it cease and desist therefrom 5 and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
5 Nothing contained in our Order herein shall be construed as authorizing
or requiring Respondent to withdraw or eliminate any benefits or other
changes in the terms and conditions of employment presently enjoyed by
Respondent's employees.
6 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
418
MOUNTAINEER EXCAVATING CO., INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILl. NOT unilaterally offer our employees
substantial economic benefits designed to induce
them to abandon their collective-bargaining rep-
resentative and bargain directly with us.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with
United Mine Workers of America (International
Union), District 28, as the exclusive representa-
tive of the employees in the appropriate bargain-
ing unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
which is described in the collective-bargaining
agreement between the parties known as the Na-
tional Bituminous Coal Agreement of 1974, ef-
fective December 6, 1974, to December 6, 1977,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and,
if an understanding is reached, embody such un-
derstanding in a signed agreement.
MOUNTAINEER EXCAVATING Co.. INC(.
419