Raymond O. Lewis, Et Al., Agents (U.M.W.)

National Labor Relations Board - Board Decisions

Aug 7, 1964

148 N.L.R.B. 249 (N.L.R.B. 1964)

RAYMOND 0. LEWIS, ET AL., AGENTS (U.M.W.) 249
Raymond O . Lewis, ' W. A. Boyle and John Owens, as Agents for
the International Union, United Mine Workers of America
and as Members of the Joint Industry Contract Committee
established by the National Bituminous Coal Wage Agreement
of 1950, and Edward G. Fox, C. W. Davis and Hamilton K.
Beebe, as Agents for the Coal Operators , signatory to the
National Bituminous Coal Wage Agreement of 1950 and as
Members of the Joint Industry Contract Committee estab-
lished by that Agreement and Arthur J. Galligan . Case No.
5-CE-6. August 7,1964
SUPPLEMENTAL DECISION AND ORDER
DENYING MOTION
On August 27, 1963, the Board issued its Decision and Order 2
herein finding that the protective wage clause of the National Bitumi-
nous Coal Wage Agreement of 1950, as amended,3 is an agreement
prohibited by Section 8(e) of the Act, and ordering Respondents to
cease and desist from (a) maintaining, enforcing, or giving effect to
the protective wage clause, and (b) entering into, actively maintain-
ing, and giving effect to or enforcing any other contract or agreement,
express or implied, whereby operators signatory thereto agree to cease
or refrain from handling, using, selling, transporting, or otherwise
dealing in any of the products of any other employer, or from doing
business with any other person, in violation of Section 8 (e) of the Act.
On May 14, 1964, the Board received a motion filed by R. O. Lewis,
W. A. Boyle, and John Owens, as agents for the International Union,
United Mine Workers of America,4 stating that on April 2, 1964, the
Respondents. negotiated and executed with representatives of the
Operator Respondents named in the Board's Order a new national
agreement, known as the Bitmuminous Coal Wage Agreement of
1950, as amended April 2, 1964,6 which agreement fully and com-
pletely supplants and supersedes the 1958 Agreement. Respondents
assert that the 1964 Agreement fails to renew the protective wage
clause of the 1958 Agreement, and that by the terms of the 1964
Agreement, the 1958 Agreement containing said clause is no longer
in effect. Respondents contend that the 1964 Agreement does not vio-
late Section 8(e) of.the Act. Accordingly, the Respondents move
1 By appropriate order dated January 25 , 1964, Raymond 0. Lewis was substituted for
Thomas Kennedy as a Respondent
2 144 NLRB 228 On December 12, '1963 , the Board denied a motion To Reconsider its
Decision and Order
a Hereinafter referred to as the 1958 Agreement
4 Hereinafter referred to as Respondents or as UMW.
Hereinafter referred to as the 1964 Agreement.
148 NLRB No. 31.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board determine that the 1964 Agreement is not 'violative of
Section 8 (e) of the Act, that Respondents are in compliance with
the Board's Order in this case, and that the case be closed.'
On May 18, 1964, by direction of the Board, the Executive Secre-
tary issued an order, to show cause, ordering the Charging Party and
the Respondents in this proceeding to show cause by written response
why the Board should not grant the motion; and ordering further
that the charging and charged parties in Cases Nos. 5-CE-8, 9-CE-
12-1, 9-CE-12-2, 9-CC-342-1, and 9-CC-342-2, currently pending
before the General Counsel, be permitted to address themselves to the
question of the legality or illegality, under Section 8(e) of the Act,
of the provision in` the 1964 Agreement headed "UNITED MINE
WORKERS OF AMERICA WELFARE and RETIREMENT
FUND OF 1950," and to file motions to intervene, for the considera-
tion of.the Board.
Thereafter, the Board received written responses from those Re-
spondents who filed the motion, from Dixie Mining Company, charg-
ing party in Case No. 5-CE-8, from Riverton Coal Company and its
president, Dan S. Davison, charging party in Cases Nos. 9-CE-12-1,
9-CE-12-2, 9-CC-342-1, and 9-CC-342-2, and from Bituminous Coal
Operators Association, one of the employer associations signatory to
the 1958 and 1964 Agreements.' No responses were received from
those individuals named as Respondents as agents for Signatory
Operators, or from the Charging Party in this case.
It is the contention of Intervenors Dixie Mining Company and
Riverton Coal Company that Respondent's motion should be denied
because certain provisions' of the clause in the 1964 Agreement en-
titled "United Mine Workers of America Welfare and Retirement
Fund" to violate Section 8 (e) of the Act I and, hence, are not in com-
pliance with paragraph 1(b) of the Board's Order. These provisions
are:
During the life of this Agreement there shall be paid into such
Fund by each Operator signatory hereto the sum of forty cents
6 In making this motion , UMW expressly reserves the right to challenge certain holdings
and findings of our prior Decision.
7 Appropriate motions to intervene were filed on behalf of Dixie Coal Company, Riverton
Coal Company and its president , Dan S Davison , and Bituminous Coal Operators Associa-
tion. Having considered the motions for intervention , the Board has decided that, in view
of the evident interest of these parties in the question of legality of the 1964 Agreement,
the motions should be , and they hereby are, granted for the purpose of receiving and con-
sidering the written responses of these parties as they bear on issues raised by Respond-
ents' motion.
8 Intervenor Bituminous Coal Operators Association generally supports the UMW's claim
that the provisions do not violate Section 8(e).
In pertinent part that section provides*
(e) It shall be an unfair labor practice for any labor organization and any em-
ployer to enter into any contract or agreement , express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain from handling , using, selling,
transporting or otherwise dealing in any of the products of any other employer, or to
cease doing business with any other person . . . .
RAYMOND 0. LEWIS, ET AL., AGENTS (U.M.W.) 251
(400) per ton of two thousand (2,000) pounds on each ton of bitu-
minous coal produced by such Operator for use or for sale. On
all bituminous coal procured or acquired by any signatory Opera-
tor for use or for sale, (i.e., all bituminous coal other than that
produced by such signatory Operator) there shall, during the life
of the Agreement, be paid into such Fund by each such Operator
signatory hereto or by any subsidiary or affiliate of such Operator
signatory hereto the sum of eighty cents (80¢) per ton of two
thousand (2,000) pounds on each ton of such bituminous coal so
procured or acquired on which the aforesaid sum of forty cents
(400) per ton had not been paid into said Fund prior to such pro-
curement or acquisition.
It is apparent that the clause does not expressly require operators
signatory to the 1964 Agreement to cease or refrain from doing busi-
ness with any other person. However, it is also apparent that the
clause does attach conditions to a Signatory's purchases of coal from
nonsignatory operators which do not attach to such purchases if made
from a Signatory Operator.10
According to the UMW, its decision to insist upon inclusion of the
clause in the 1964 Agreement was prompted by the same economic and
industrial considerations which confronted it in demanding and se-
curing the protective wage clause of the 1958 Agreement. These
considerations, as contained in the stipulated record in this case, are
fully discussed in our prior Decision. In essence they are : labor costs
constitute the principal cost item in the production of coal; the pur-
chasing of coal by one producer from another producer is an essential
marketing practice within the industry; the UMW has long recog-
nized the necessity of permitting operators under contract with it to
purchase coal from other producers, and this practice enables the
purchasing operator successfully to compete for orders from large
utility and steel users even though the operator is not able to produce
all the coal required to fulfill such orders; these practices have, how-
ever, given rise to abuses in the past in that Signatory' Operators
regularly have purchased coal from mines having substandard labor
conditions and paying substandard wages despite the purchasing pro-
ducer's ample production capacity to satisfy his customer's require-
ments from his own facilities ; and the UMW has long sought to pre-
vent these abuses and to preserve work opportunities for employees
it represents.
io While the same conditions also attach to coal purchases from noncomplying signs-
tories , and may thus indicate an added objective of "policing" the contract to induce com-
pliance by such noncomplying signatories who would market their coal to complying sig-
natories , this does not negate the unlawful impact which we find the clause has on
nonsignatories.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The UMW freely concedes that the welfare fund clause at issue
herein represents a compromise between the maximum restriction on
purchases of additional coal which theoretically it could achieve under
the Act, i.e., a complete ban on' subcontracting under which each
Signatory Operator would maintain full production of all its pro-
ductive capacity so that it would produce from its own mines all coal
needed to fill all of its contracts and market requirements, and a con-
tract which permitted each Signatory to purchase additional coal from
whatever source it might choose. According to UMW, the clause as
finally agreed to was written to "allow a Signatory Operator to procure
or acquire, without restriction [emphasis in the original], from any
other Signatory Operator [emphasis supplied] whatever coal was
needed to fulfill market demands and contract requirements of the
purchasing signatory." We conclude from the above admission that
the UMW intended that restrictions be placed on the right to purchase
coal from nonsignatory sources. This conclusion receives additional
support from the reasons stated by the UMW as to why the 80-cent
royalty payment was placed on coal purchased from nonsignatory
sources. According to the UMW, this figure was chosen because a
lesser figure, for example 40 cents, as being equivalent to the normal
royalty payment required of Signatory Operators, would place a Sig-
natory at an economic disadvantage in purchasing coal mined under
the contract with the result that such purchases would be made from
nonsignatory sources and work opportunities and security for em-
ployees under the contract would be diminished." Further support
for this conclusion is furnished by the written response of the Bitu-
minous Coal Operators Association which, in agreeing to the clause,
helped to set the pattern for the entire industry.12 BCOA states that
it resisted the UMW's proposal because "it would impose a financial
burden upon any signatory who might procure or acquire coal from
sources other than its own production or from other Signatory Opera-
tors" but that the UMW represented to the BCOA that the purpose,
which BCOA does not question, of the clause was "to protect and
preserve job opportunities and job standards of its members and to
enhance and increase the welfare fund established to provide retire-
ment and other benefits to coal miners."
In view of the foregoing statements of the negotiating parties as
to the purpose and impact of the clause, and in view of the economic
and industrial realities obtaining in the coal-mining industry as set
forth in the stipulated record, we find that the clause imposes a sub-
".The UMW points out that the same result would occur if the 80-cent royalty payment
attached to purchases from signatory and nonsignatory operators alike.
12 The stipulated record herein reveals that since 1950 , the UMW has first negotiated
with the BCOA, and that the resulting agreement has then been presented to other associa-
tions and operators , with the result that a uniform national agreement has thus been
achieved in every instance.
-RAYMOND 0. LEWIS, ET AL., AGENTS (U.M.W.) 253
stantial financial penalty upon Signatory Operators who procure or
acquire coal from nonsignatory sources,,a penalty which is not imposed
if they procure or acquire coal from other Signatory Operators. We
further find that this financial penalty was imposed to restrain Signa-
tory Operators from procuring or acquiring coal from nonsignatory
sources.13
The Board has held that clauses which grant a contracting em-
ployer the right to do business with noncontracting employers, but
which impose a substantial penalty or sanction upon the exercise of
such right, are in reality implied agreements that the contracting em-
ployer will refrain from doing business with the noncontracting em-
ployer.14 In our judgment the instant clause is indistinguishable in
purpose and-effect from the clauses involved in the cited cases, and
constitutes an implied agreement that Signatory Operators will re-
frain from purchasing coal from nonsignatory operators.
The UMW nevertheless contends that the clause is lawful because
its purpose is to preserve and protect the work of employees in the
industrywide contract unit. It further contends that even if the
clause does operate, as we have found, as an economic restraint on
the purchase of nonsignatory coal, it creates no unlawful secondary
pressures, because it is not, and cannot be construed to be, an attempt
to extend the contract provisions to unorganized employees.
We reject these contentions as founded on the unacceptable premise
that the so-called industrywide contract unit is the established bar-
gaining unit for purposes of determining whether the contract seeks
to preserve bargaining-unit work for unit employees. We reserved
decision on this issue in our prior Decision in this case because it ap-
13 In making this finding , we do not find , as urged by Intervenors Dixie Mining Company
and Riverton Coal Company , that the effect of the clauses necessarily will be to cause a
complete cessation in the purchase of coal from nonsignatory sources. It is sufficient, in
our opinion ,' that the clause will exercise a clearly restraining effect on such purchases,
even though a complete cessation does not occur . The Intervenors have submitted cer-
tain evidence in the form of copies of business letters and affidavits relevant to the amount
of nonsignatory coal normally purchased by Signatory Operators , the effect of the 80-cent
royalty charge on such transactions , and the effect on nonsignatory operators of the loss
of that portion of their traditional market made up of sales to Signatory Operators, and
they asked for a hearing to permit them to prove their contention , if the truth of the
contention be material to the issues herein. We do not rely on the proffered evidence as
a basis for our conclusion that the clause was intended to create a restraint on the pur-
chase of nonsignatory coal . We note, however , that the proffered evidence is generally
corroborated by at least one factor not only admitted by the UMW, but which it urges as
the reason it needed the protection furnished by the clause in issue, f e., that Signatory
Operators , in the past, have been purchasing substantial amounts of coal from nonsignatory
sources in violation of their contractual obligations . Further it is consistent with the
implicit admission of the UMW that the 80 -cent royalty charge will place a Signatory
Operator at an economic disadvantage if it persists in dealing in nonsignatory coal.
14Amalgamated Lithographers of,Amerwca and Local 78 (Employing Lithographers of
Greater Miami, at al. ), 130 NLRB 968 , enfd 301 F . 2d 20 (C.A. 5) ; Amalgamated Lithog-
saphers of America and Local No. 17, et at . ( The Employing Lithographers , etc ), 130
NLRB 985, enfd. 309 F . 2d 31 (C A. 9) ; Truck Drivers & Helpers Local Union No. 728 &
IBT (Brown Transport Corp ), 140 NLRB 1436, 1438-1439 ( hazardous work clause), en-
forcement denied , 334 P. 2d 539 (-C A.D.C ), for reasons not pertinent herein.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peared that whatever unit might be appropriate for this purpose, the
protective wage clause of the 1958 Agreement was an agreement that
work could be performed outside the unit, provided contract work-
ing conditions and standards were accorded to the employees doing
the work. As we have found that the clause involved herein is an
implied agreement that coal will be purchased only from Signatory
Operators, we now reach the issue and we find on the basis of the
facts stipulated to'the Board, that the UMW national contract covers
a multiplicity of bargaining units rather than a single industrywide
unit. This is disclosed by the stipulated record which reveals that,
although the UMW has been successful in obtaining uniform national
agreements since at least 1950, it has achieved this through the me-
dium of separate negotiations with the various Signatories. Typi-
cally, the UMW first negotiates with the BCOA, and presents the
agreement resulting from such negotiations to the other Association
Signatories and to individual Signatory Operators who are not mem-
bers of any association, for their acceptance. The record thus in-
dicates that in practice the UMW recognizes the lack of authority of
the BCOA or any other Association Signatory to commit operators
who are not members. -
An essential element for establishing a multiemployer unit is the
participation by a group of employees, whether members or non-
members of a single association, either personally or through an
authorized representative, in joint bargaining negotiations unequivo-
cally manifesting the intent to be bound by group, rather than by
individual, action.15 The facts stipulated herein fall far short of fur-
nishing the necessary basis for finding the multisignatory unit urged
upon us by UMW. The fact that the various Signatory Associations
and individual Signatory Operators, since 1950, have signed identi-
cal, though separately negotiated, contracts is an insufficient basis for
concluding that an industrywide contract unit has been created by
the parties here,16 as there is an absence of evidence to indicate that
the various Signatory Associations negotiated on other than an in-
dividual Association basis. Accordingly, we find, under the normal
tests applied by the Board in making bargaining-unit determina-
tions, that an industrywide unit has not been established by the
parties.
The considerations which in other circumstances have led us to
conclude that a work protection clause having as its sole purpose and
effect the preservation of work for employees in an established ap-
15 Chester County Beer Distributors Asaoeiation, 133 NLRB 771.
11 Ibid.
RAYMOND 0. LEWIS, ET AL., AGENTS (U.M.W.) 255
propriate unit is outside the intended interdiction of Section 8 (e) "
have no valid application to a situation where, as here, the work pro-
tection sought extends beyond the established unit. The fact that the
UMW has succeeded in covering all the employees in the different
bargaining units which it represents under a single uniform agree-
ment provides no justification for excepting such a situation from the
normal operative effect of Section 8(e). Indeed, such success may
well have been facilitated by the fact that any association or in-
dividual Operator unwilling to accept the contract negotiated initially
by the BCOA and under no legal obligation to accept such contract,
would face the prospect, not only of a strike, but of being ineligible
to sell' coal to Signatory Operators if it refused to accede to the
UMW's demand. Given the operative economic and industrial fac-
tors in the industry, the inclusion of the instant clause in the 1964
Agreement constitutes secondary pressure on unsigned Operators.
Section 8 (e) was enacted. principally for the purpose of eliminating
a union's use of such secondary pressures in its disputes with
employers.
It is now well established that clauses which expressly or impliedly
permit the subcontracting of unit work only to employers under con-
tract with the union violate Section 8(e) of the Act."' The instant
clause, realistically appraised, is nothing more than an implied union
signatory agreement restricting ,the subcontracting of work to opera-
tors under contract with the UMW, without regard to unit considera-
tions." Thus the clause places restrictions on subcontracting which
are not "strictly germane to the economic integrity of the principal
work unit . . . . It is, rather, a provision to make certain the pri-
mary employer [i.e., the employer whose employees are to perform
the work] is under contract with the Union...." 20
On the basis of the foregoing considerations, we find that the
United Mine Workers of America Welfare and Retirement Fund
Clause of the 1964 Agreement, is not valid under Section. 8 (e) of the
17 See, e . g., Ohio Valley Carpenters District Council, etc. (Cardinal Industries , Inc.),
136 NLRB 977 , 986; Milk Drivers' Union, Local 753, etc. ( Pure Milk Association), 141
NLRB 1237.
18 Highway Truck Drivers and Helpers , Local 107, et al. (E. A. Gallagher & Sons), 131
NLRB 925, enfd. 302 F. 2d 897 (C.A.D.C.) ; District No. 9, International Association of
Machinists ( Greater St. Louis Automotive Trimmers , etc.), 134 NLRB 1354 , enfd . '315 F.
2d 33 (C.A.D C.) ; Bakery Wagon Drivers & Salesmen , Local Union No. 484 ( Sunrise
Transportation ), 137 NLRB 987, enfd . 321 F . 2d 353 (C.A.D.;C.) ; Building and Con-
struction Trades Council of San Bernardino and Riverside Counties , et al. v. N.L.R.B.
( Golding & Jones ), 328 F. 2d 540, 541 (C.A.D.C.).
19 The fact that a noncomplying operator may be outside the bargaining unit reinforces
our conclusion that the clause has an objective reaching beyond the protection of
bargaining-unit work.
20 District No. 9, International Association of Machinists v. N.L.R.B., supra.
I
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Accordingly, we shall deny UMWW's motion that Respondents
herein be adjudged to be in compliance with the provisions of the
Board's Order issued in this case on August 27, 1963.21
[The Board denied the motion.]
M1MBER JENKINS, dissenting :
For reasons to be set forth in a separate opinion issuing shortly, I
dissent from my colleagues' denial of Respondents' motion.
DISSENTING OPINION
On August 7, 1964, the Board issued a Supplemental Decision and
Order denying Respondent's motion for a determination that the
1964 Agreement between the Union and the Mine Operators is not
violative of Section 8(e) of the Act. Member Howard Jenkins, Jr.,
dissented from' that Decision and Order which expressly provided
that the dissenting opinion would issue at a later date. That opinion
follows.
My colleagues have determined that the welfare clause in the
collective-bargaining agreements between the Union and the Signa-
tory Operators violates Section 8(e) of the Act insofar as it provides
for the imposition of an 80-cent-per-ton payment to the welfare fund
for coal purchased by such Signatories from producers who have not
paid the usual 40-cent welfare fund royalty. Their conclusion is
based principally upon the Union's admission that the payment under
this clause is imposed for the purpose of restricting and curtailing
purchases from nonunion operators. Such a purpose, without more,
does not necessarily bring the payment within the 8(e) prohibition;
for such purchases can be restricted for legitimate reasons which do
not violate that section of the Act.
First, it is plain that the 80-cent payment has a substantial effect
on Signatory Operators who are delinquent in their welfare fund
contributions in that it provides a strong incentive for them to make
timely payments on the coal they sell to other Signatories. In this
respect the clause does no more than "protect and preserve the work
and standards [the' union] has bargained for;' 22 by enforcement of
contracts which the affected Operators have with the Union.
21 Members Fanning and Brown did not participate in the original Decision in this case.
Since the contract clause involved in that case is not now in effect, they do not express
any opinion on the validity of such, clause. For the reasons stated in this opinion they
agree that the clause here presented contravenes Section 8 (e) of the statute and there-
fore is not in compliance with paragraph 1(b) of the Order of the Board in the original
Decision.
22 Orange Belt District Council of Painters No. 48 v. N.L R B. (Calhoun Drywall Co ),
328 F. 2d 534 , 538 (C.A.D.C ).
RAYMOND 0. LEWIS, ET AL., AGENTS (U.M.W.) 257
Second, as to substitute coal (which could be produced by the Sig-
natory but is purchased from another operator because it is cheaper
to do so), the sole effect of this clause is to protect the work stand-
ards of employees concededly in the bargaining unit against impair-
ment by that form of subcontracting which is most destructive, i.e.,
subcontracting to operators who can produce more cheaply because
of lower wages and lower standards of benefits.
Third, as to supplemental coal (which could not be produced by
the Signatory and is purchased elsewhere in order to enable the Sig-
natory to supply the several types of coal required by its customers),
the restriction of purchases to Signatory Operators is, under the terms
of this clause, not mandatory; purchase from a nonsignatory is per-
mitted with no qualification other than the required payment of the
80-cent' royalty. My colleagues consider that this charge, when
viewed from an economic standpoint, is so high as to constitute a
penalty amounting to a prohibition of subcontracting to any non-
signatory.23 However, they fail to note that, prohibition or not, this
clause does assure that a welfare fund royalty will be paid on all
coal the production of which is subcontracted by any Signatory Em-
ployer as well as upon coal produced by that Employer itself. In
doing so, the clause protects this particular work standard, the wel-
fare fund, for all employees of all Signatories.
The welfare fund is administered under a single agreement, nation-
wide in scope, and separate from any agreement covering wages,
hours, and other working conditions. It is executed by all employers
having agreements with the Union and provides for a single system
of administration, of employer contributions, and of eligibility and
level of benefits for all employees. In these circumstances it would
appear, contrary to the view of my colleagues, that there exists a
single industrywide bargaining unit for welfare fund matters. The
Board has recently held that, while so broad a unit may not exist
With respect to some matters (e.g., those covered in the Bituminous
Coal Operators' Association agreement and other association agree-
as The fact that the 80-cent payment may be denominated a "penalty" seems to me to
shed little light on the issue A' figure somewhat higher than the usual 40-cent royalty
paid by nondelinquent Signatories would be justified because of the additional effort and
expense in administering the clause and to offset the Welfare Fund's administrative ex-
penses which are escaped by nonsignatorie4. The additional 40 cents also was assertedly
intended to compensate to some extent for cost advantages enjoyed by nonsignatoiles on
account of lower wages, less rigid safety standards, and the like Consequently, it would
appear that, in the absence of additional evidence, the clause should be regarded as no
more than an effort to protect work standards by equalizing the labor costs between em-
ployees of Signatoiles and nonsignatories. Any degree of such equalization would, of
course, tend to restrict purchases of coal from nonsignatories, which the Union admits
Nevertheless, this alone will not suffice to bring the clause within the proscription of
Section 8(e).
760-577-65-vol. 148-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments ), this does not affect the existence of the broader unit in which
the parties have agreed to deal with respect to certain other matters
(here, the welfare fund contributions)."
Whether the clause be considered a prohibition on subcontracting
work to those outside this broad unit who make no welfare fund
contributions , or simply a requirement that the welfare fund con-
tributions be maintained for coal which is subcontracted , the effect
is to preserve this work standard against impairment through sub-
contracting to those who are able to produce more cheaply because
they do not meet this standard . Section 8 ( e) was enacted for the
purpose of prohibiting agreements which require an employer not to
do business with another employer because the latter is involved in
a labor dispute . This is not the case in the instant matter. The pro-
tection of the work standards of employees in the unit constitutes
primary activity with respect to the contracting employer and is not,
therefore , within the intended reach of Section 8(e).25
My colleagues reject the Union's contention that this clause is law-
ful because its purpose is "to preserve and protect the work of em-
ployees in the industrywide contract unit." They consider such pur-
pose to be unlawful where, as here, "the UMW national contract
covers a multiplicity of bargaining units rather than a single indus-
trywide unit ." This conclusion seems to read into Section 8 ( e) sub-
stantially more than its acknowledged purpose of prohibiting a union
from agreeing with an employer that he must refrain from doing
business with another employer should the latter become involved in
a labor dispute.
The fact that there may be no "industrywide" bargaining unit
which would bind all individual operators to sign the agreement first
reached with BCOA, or permit all employees to vote in a single elec-
tion to choose bargaining representation , and the like, does not dic-
tate that the interest of the Union is so alien or disparate under each
of its separate contracts that an unlawful secondary character at-
taches to its action to protect job opportunities for all of the em-
ployees affected by those contracts. Nothing in the language or
purpose of Section 8(e) would seem to prevent groups of employees
in separate bargaining units from acting jointly through a local or
regional council , their parent union, or otherwise , to protect work
opportunities for all such employees . This is a far different matter
from the imposition of an absolute union requirement that an em-
ployer cease doing business with nonunion employers or with em-
ployers who are engaged in a labor dispute in which the union has
no primary interest. -
24 The Kroger Co., 148 NLRB 669.
25 Truck Drivers Union Local No. 413 v. N.L.R.B., 334 F. 2d 539 (C.A.D.C.).
RAYMOND O . LEWIS, ET AL., AGENTS (U.M.W.) 259
Here the facts indicate that the Union had a direct and substantial
primary interest in protecting the work of the employees involved.
Upon reaching an agreement with a major association of operators,
the Union successfully negotiated agreements with other groups of
operators, and with individual operators, which conformed to the
initial agreement. The Union's goal in so doing was to achieve uni-
formity of conditions in its contracts; and by this practice it has
achieved and maintained such uniformity since 1950. So plain has
been the economic reality of this practice and the uniformity flow-
ing from it that the Secretary of Labor has repeatedly determined
the prevailing minimum wage under the Walsh-Healy Act, for the
several regions within the country, to be the same as the wage speci-
fied in the union agreements .26 - Also, as noted above, the welfare fund
itself is established by a single industrywide agreement executed • by
all operators , having agreements with the Union. Therefore, all
of the employees of these operators , as a single unit, have a common
interest in preserving the work of those benefiting from the welfare
fund.
Further, it has.been held that, to find a clause, the purpose of which
is the protection of work, to be lawful, it is not necessary that the work
be presently performed by persons within the unit, but only that it be
"fairly claimable" by those in the unit because "closely allied" in func-
tion, content, or otherwise ?' Should this clause prevent the purchase
of supplemental coal-the effect most plainly illegal in the majority's
view-it nevertheless concerns work "fairly claimable" by those within
the unit; for the elimination of such subcontracting might reasonably
result iri the production of this coal by a signatory within the same
association , which the majority would concede to be within the bar-
20 See 41 C.F.R . par. 50-202 . 16, and earlier determinations.
27 As the court said , in Meat and Highway Drivers etc., Local Union No . 710, etc. V.
N.L.R.B ( Wilson & Co.), '335 F. 2d 709 (C.A.D C.)
Resolution of the difficult issue of primary versus secondary activity , as it relates
to this case , involves consideration of two factors : ( 1) jobs fairly claimable by the
bargaining unit, and ( 2) preservation of those jobs for the bargaining unit. If the
jobs are fairly claimable by the unit , they may, without violating either § 8(e) or
§ 8(b) (4) (A) or (B), be protected by provision for, and implementation of, no-
subcontracting or union standards clauses in the bargaining agreements Activity and
agreement which directly protect fairly claimable jobs are primary under the Act.
Incidental secondary effects of such activity and agreement do not render them il-
legal. Thus the "cease doing business" language in § 8(e ) cannot be read literally
because inherent in all subcontracting clauses, even those admittedly primary, is re-
fusal at least with some contractors. ' .
i i • M M R •
Even if [the work ] had never been customarily performed by unit members
when it was part of an interstate haul, it is nevertheless so closely allied-and
is in part identical-to the local deliveries previously recognized for almost
20 years to be unit work as to make bargaining about it mandatory. To hold
otherwise is to say that a union may not seek to bargain with an employer either
about the quantum of work, or the qualifications of its members to perform closely
related work, whenever technological changes or mere changes in methods of dis-
tribution are to be effected.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining unit. Moreover, the purchase of supplemental coal enables
the Employer to enter into contracts with customers which it might
not otherwise obtain ; and, in this respect, the fact that the Union chose
not to impose a complete prohibition on subcontracting (which ad-
mittedly would have been lawful) has the effect of securing work for
those in the unit. As to substitute coal, the elimination of subcon-
tracting to producers who charge lower rates would almost certainly
lead to the performance of the work by the Signatory's own em-
ployees, since this is coal which the Signatory itself would ordinarily
produce; and the work preservation effect is, therefore, plain. In
short, my colleagues appear to be inferring facts or contract interpreta-
tions which would render this clause unlawful (amounting to a per se
rule), rather than presuming lawful effects and purposes where that is
possible, as Board precedent requires 28
In the Board's prior decision on this matter (in which I did not par-
ticipate), the wage clause was held invalid on the ground that it was
not a work-protection provision because the Operators were left free
to purchase the substitute and supplemental coal. In the present de-
cision, the welfare clause is held invalid because they are not left free
to do so. It appears unlikely that both decisions can be correct. Had
the present clause been placed in the industrywide welfare fund
agreement, it clearly would have been valid under the majority's view
because it would have protected the work and standards of an indus-
trywide unit. To reach a different result because the clause was placed
in the several wage agreements emphasizes form at the expense of
substance.
For these reasons, I would hold that the welfare clause is lawful
under Section 8 (e) and would grant the motion.
28 N.L.R.B. v. News Syndicate Company, Inc., et al., 365 U.S. 695 ; Local 359, Inter-
national Brotherhood of Teamsters etc. v. N.L.R.B. (Los Angeles-Seattle Motor Express),
365 U.S. 667; Paragon Products Corporation, 134 NLRB 662. Indeed, if inferences are to
be drawn, the practice of the Union and the Employers in executing uniform agreements
after the initial agreement is reached warrants the inference of an industrywide bargain-
ing unit as readily as the facts here support the majority's inference that, even though
the language provides otherwise, the welfare clause is an inducement for nonunion opera-
tors to sign union agreements.
Stinson Manufacturing Company and United Steelworkers of
America, AFL-CIO, District No. 38, Sub-District No. 7. Case
No. 19-CA-2745. August 10, 1964
DECISION AND ORDER
On May 4, 1964, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
148 NLRB No. 27.