Taft Coal Co.

National Labor Relations Board - Board Decisions

Jun 28, 1996

321 N.L.R.B. 605 (N.L.R.B. 1996)

605
321 NLRB No. 85
TAFT COAL CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
We shall also modify the judge’s recommended remedy to require
that the Respondent make whole unit employees for its failure to
make contractually required pension contributions by making all de-
linquent contributions, including any additional amounts due the
fund in accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse
the employees for any expenses ensuing from its failure to make the
required contributions, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth in Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Further, to the extent that an employee has
made personal contributions to a fund that are accepted by the fund
in lieu of the employer’s delinquent contributions during the period
of the delinquency, the respondent will reimburse the employee, but
the amount of such reimbursement will constitute a setoff to the
amount that the respondent otherwise owes the fund.
3 If 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.’’
Taft Coal Company and United Mine Workers of
America. Case 10–CA–28288
June 28, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
On January 30, 1996, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified2 and set forth in full below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that
Taft Coal Company, Oakman, Alabama, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition and refusing, on re-
quest, to recognize and bargain in good faith with
United Mine Workers of America as the exclusive col-
lective-bargaining representative of its employees in
the following appropriate bargaining unit:
All production and maintenance employees em-
ployed by the Respondent at its Oakman, Ala-
bama facility, but excluding all office clerical em-
ployees, guards and supervisors as defined in the
Act.
(b) Unilaterally changing the employees’ terms and
conditions of employment by discontinuing to make
contractually agreed pension benefit payments for unit
employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the above-de-
scribed appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) Remit the delinquent pension contributions, in-
cluding any additional amounts due the fund, and re-
imburse unit employees for any expenses ensuing from
the Respondent’s failure to make the required pay-
ments since February 1995, in the manner set forth in
footnote 2 of this decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post
at its facility in Oakman, Alabama, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees and former employees employed by the Re-
spondent at any time since February 2, 1995.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT withdraw recognition and refuse to
recognize United Mine Workers of America as the ex-
clusive collective-bargaining representative of the fol-
lowing appropriate bargaining unit:
All production and maintenance employees em-
ployed by us at our Oakman, Alabama facility,
but excluding all office clerical employees, guards
and supervisors as defined in the Act.
WE WILL NOT discontinue making pension contribu-
tions for unit employees after withdrawing recognition
from the Union.
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, on request by the Union, recognize and
bargain with United Mine Workers of America as the
exclusive collective-bargaining representative of our
employees in the above bargaining unit.
WE WILL restore all pension contributions not made
for unit employees since February 1995, and WE WILL
reinstate our practice of regularly making pension con-
tributions for unit employees.
WE WILL reimburse any of our employees, with in-
terest, who suffered any losses or incurred extra ex-
penses due to our failure to make the pension contribu-
tions since February 1995.
TAFT COAL COMPANY
Karen Neilsen, Esq., for General Counsel.
Sydney Frazier, Esq., of Birmingham, Alabama, for the Re-
spondent.
Graham Sisson, Esq., of Birmingham, Alabama, for the
Charging Party (the Union).
DECISION
J. PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held in Birmingham, Alabama, on October 13,
1995. The formal documents received in evidence showed
that the charge was filed on February 2, 1995. The complaint
issued June 16, 1995.
Respondent, the Union, and the General Counsel were rep-
resented, were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evi-
dence. On consideration of the entire record and briefs filed
by all parties, I make the following
FINDINGS OF FACT
Respondent admitted that it is a Alabama corporation with
a place of business in Oakman, Alabama, where it is engaged
in the business of mining and processing coal; that during the
past calendar year it sold from its Oakman, Alabama facility
goods valued in excess of $50,000 directly to Alabama
Power Company, an Alabama public utility company that in
turn annually purchases and receives, in interstate commerce,
goods and supplies valued in excess of $50,000 directly from
sources outside Alabama; and that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the National Labor Relations Act (the Act).
Respondent admitted that the Charging Party (the Union)
is a labor organization within the meaning of Section 2(5) of
the Act.
I. THE UNFAIR LABOR PRACTICE ALLEGATIONS
Section 8(a)(5): Refusal to Recognize and Bargain
The complaint alleges that Respondent unlawfully with-
drew recognition and has refused to bargain with the Union
since February 2, 1995. At the hearing the General Counsel
amended the complaint to include an allegation that Re-
spondent unilaterally ceased making pension contributions in
or about February 1995.
II. THE RECORD EVIDENCE
Respondent admitted that in the past the Union has rep-
resented its employees and has entered into collective-bar-
gaining agreements with it, but alleges that the Union has
abandoned its collective-bargaining role for the employees.
The parties stipulated that the Union has represented Re-
spondent’s employees in the following bargaining unit since
at least March 14, 1950:
All production and maintenance employees employed
by the Respondent at its Oakman, Alabama facility, but
607TAFT COAL CO.
excluding all office clerical employees, guards and su-
pervisors as defined in the Act.
The parties stipulated that Respondent and Mine Workers
Local 1956 were signatories to an agreement that was iden-
tical to the National Bituminous Coal Wage Agreement of
1988 that extended from February 1, 1988, to February 2,
1993. Under that agreement Respondent was obligated to
make pension contributions on behalf of its unit employees.
The parties have not entered into any agreement subsequent
to February 2, 1993. On February 2, 1995, there were only
two employees in the bargaining unit. In February 1995, Re-
spondent ceased making pension contributions for the unit
employees.
A. November 23, 1992
The Union wrote Respondent of its intention to terminate
the collective-bargaining agreement effective 10:01 a.m.,
February 2, 1993, and that it was prepared to meet with Re-
spondent for the purpose of engaging in negotiations. In-
cluded in the Union’s letter was an 11-page request for infor-
mation.
B. January 22, 1993
Respondent answered the Union’s November 23 letter on
January 23; advised the Union that it produces coal by sur-
face mining methods and provided a five-page response to
the Union’s request for information.
C. February 18, 1993
The Union wrote Respondent and asked for agreeable
times and locations for bargaining sessions.
D. February 23, 1993
Respondent wrote the Union (certified mail) and suggested
several dates and a proposed site for negotiations.
E. March 11, 1993
The Union wrote Respondent and acknowledged Respond-
ent’s February 23, 1993 letter. The Union asserted that Re-
spondent had not fully responded to its November 13, 1992
request for information stating that it could ‘‘mutually ar-
range a productive meeting after receipt of all the informa-
tion requested from Respondent.’’
F. May 11, 1993
The Union wrote Respondent that Respondent had not re-
plied to the Union’s request for bargaining information of
November 13, 1992, and March 11, 1993. The Union again
requested the information.
G. October 18, 1993
The Union wrote Respondent regarding a grievance and
added the following:
Also, we have not received any reply to our ‘‘Re-
quest for Bargaining Information and are waiting for
this information to be provided.’’
H. December 1993
Daryl Dewberry has been International executive board
Member of District 20 of the Union since November 10,
1993. For 8 years before November 1993, he was District ex-
ecutive board member. As District executive board member,
he was assigned to represent the Union in administrating the
contract at Taft Coal.
After becoming International executive board member,
Dewberry contacted Jimmy Alexander at Taft Coal in De-
cember 1993. Alexander was the human resources director at
Taft Coal. Dewberry told Alexander that he would be han-
dling the contract negotiations with Taft Coal and he asked
Alexander for some dates they could negotiate toward a con-
tract. Alexander told Dewberry that he would get back with
some tentative dates.
I. February 1994
Daryl Dewberry contacted Jimmy Alexander again around
February 9, 1994. Dewberry had heard nothing from Alexan-
der in response to his December 1993 request for dates for
negotiations. Again, Alexander responded that he would get
back to Dewberry with some tentative dates.
J. March 9, 1994
Jimmy Alexander admitted that Daryl Dewberry phoned
him on March 9 and asked for negotiation dates. Alexander
did not recall that Dewberry had phoned him about negotia-
tion dates before March 9. Dewberry did not phone again re-
garding negotiations during 1994.
Alexander tried unsuccessfully to phone Dewberry on
March 25 and 30, 1994, to give him possible negotiation
dates. Alexander left word at Dewberry’s office on both of
those occasions but Dewberry did not return either call. Al-
exander did not try to contact Dewberry after those dates.
K. April 1994
Daryl Dewberry phoned Jimmy Alexander regarding a
complaint he received that Taft Coal was contracting out unit
work. Dewberry talked about that matter and he also asked
Jimmy Alexander ‘‘we need to sit down and negotiate a con-
tract.’’ Alexander replied that he would get with his people
and also told Dewberry that more than likely Eller and Asso-
ciates would be handling the contracting out grievance.
Alexander denied that Dewberry asked about negotiation
dates after March 9 and before January 1995.
L. May 2 and 3, 1994
The Union wrote Respondent that it had received informa-
tion that Respondent was contracting out work in violation
of provisions of the 1988 National Bituminous Coal Wage
Agreement. The Union advised that the letter constituted step
1 of the grievance procedure. The Union’s letter continued:
We look forward to bargaining a successor agreement
in good faith while the employees continue to work
under the terms and conditions of the 1988 National Bi-
tuminous Coal Wage Agreement.
Please notify me as soon as possible of your agreeable
times and locations for bargaining sessions.
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Daryl Dewberry testified that he discussed the grievance
with Eller and Associates and they took the position that Re-
spondent had complied with the contract by sending out let-
ters to the employees affording them recall. The Union did
not take the matter to the second grievance step.
The Union also advised Respondent on May 3, that it had
received information that Respondent was involved in an ad-
ditional violation of the terms of the 1988 wage agreement
and advised that the letter constituted step 1 of that griev-
ance.
After investigating the matter, the Union permitted the
grievance to die.
M. May 23, 1994
During the hearing Daryl Dewberry was shown a letter ad-
dressed to him from Kenneth R. Eller regarding Respond-
ent’s position that it had complied with the expired contract
as to contracting out work. The letter included a proposal of
several optional dates for negotiations. Dewberry denied that
he received that letter from Eller.
N. January 1995
Jimmy Alexander testified that he was phoned by Daryl
Dewberry in January 1995. Dewberry asked about possible
negotiation dates. Alexander testified there had been a cor-
porate restructuring and he told Dewberry that he was no
longer employed by Taft Coal and that Dewberry would
need to contact Ken Eller who was representing Taft.
Alexander testified that although he is employed by Taft
Coal Sales and Associates, Inc., he was directly employed by
Taft Coal in administration of the union contract until De-
cember 31, 1994.
O. January 24, 1995
The Union wrote Respondent:
Pursuant to our telephone conversation today, this is
to advise you that our records do not include receipt of
any prior notification from your Company outlining
tentative dates for contract negotiations.
The Union will accept any dates that you propose for
contract negotiations; therefore, we await your imme-
diate response.
Please feel free to contact either myself, Mike
Clements, Eddie Horton or Gary Pickett to discuss this
matter further.
Daryl Dewberry testified that he had not received any noti-
fication from Respondent as to dates for negotiations when
he wrote the above letter.
P. February 2, 1995
Respondent wrote the Union, stating:
I do not believe that you continue to represent the em-
ployees of A. J. Taft Coal Co., Inc. and therefore I re-
spectfully decline your invitation to meet and bargain.
After receiving the above letter, the Union checked and
was told by the two employees in the bargaining unit that
they wanted the Union to continue to represent them. Both
employees are union members in good standing.
Q. February 15, 1995
The Union wrote Respondent that it continued to represent
and had not abandoned the employees. The Union asked for
a completed information packet pursuant to earlier letters it
had sent Respondent, and for tentative bargaining dates.
R. February 27, 1995
Respondent, through President Charles K. McCoy, replied
to the Union, stating Respondent’s position remained as ex-
pressed in its February 2, 1995 letter. He declined the
Union’s request to meet and bargain.
III. FINDINGS
A. Credibility Determinations
There are two credibility disputes of significance. Daryl
Dewberry in dispute with Jimmy Alexander testified that he
phoned Alexander on four occasions beginning in December
1993 and requested optional negotiation dates. Alexander tes-
tified that Dewberry phoned and asked for negotiation dates
on only two occasions. One of those occasions was on
March 9, 1994, and the other occurred during January 1995.
Both Alexander and Dewberry demonstrated good de-
meanor. I am impressed with the documentation by Alexan-
der of the March 9 telephone conversation. However, I am
concerned with the overall record regarding Alexander’s tes-
timony. According to Alexander he phoned after Dewberry
asked about negotiation dates and left word for Dewberry to
return his calls on March 25 and 30, 1994. Alexander was
prepared to give Dewberry some optional negotiating dates.
According to Alexander, Dewberry never returned those
calls. However, Alexander did not deny Dewberry’s testi-
mony that Dewberry phoned Alexander in April 1994 about
a grievance he had received that Respondent was contracting
out unit work. Dewberry testified that additionally he told
Alexander, ‘‘[W]e need to sit down and negotiate a con-
tract.’’
Even if I credit Alexander’s testimony that he did not dis-
cuss negotiations on that occasion, it is difficult to under-
stand why he did not tell Dewberry about the negotiation
dates he planned to propose when he tried to phone Dew-
berry on March 25 and 30, 1994. I find it difficult to under-
stand why, if Alexander was trying to reach Dewberry and
give him negotiation dates on March 30, he failed to give
Dewberry that information when Dewberry phoned within a
month of March 30, 1994.
In view of the full record I credit Dewberry’s testimony
that he contacted Alexander requesting negotiation dates on
four occasions. However, I am willing to consider for the
sake of examination whether a violation occurred, that Alex-
ander only discussed negotiation dates over the phone with
Dewberry on March 9, 1994, and during January 1995. Nev-
ertheless, even with that assumption, I am convinced that
even though Alexander testified that he phoned and left word
for Dewberry to return his calls on March 25 and 30, Alex-
ander failed to respond to Dewberry’s March 9 request for
negotiation dates and he had opportunities to do so including
one opportunity during his and Dewberry’s April 1994,
phone conversation regarding the contracting out grievance.
For that reason I cannot credit Alexander’s testimony to the
extent it may show that Respondent did everything it could
609TAFT COAL CO.
within reason, to supply the Union with requested dates for
negotiation sessions. I find instead that Alexander failed to
supply Dewberry with those requested dates during March
and when they talked in April 1994.
There is also a dispute as to whether the Union received
a May 23, 1994 letter from Kenneth Eller. Daryl Dewberry
and Mike Clements denied that the Union received that let-
ter. In consideration of that dispute, I find it surprising that
an experienced person like Kenneth Eller failed to document
receipt of that letter by return receipt. In any event whether
the letter was mailed or not, I am convinced and credit that
the Union never received the letter.
B. Factual Determinations
In view of the full record and my credibility findings, I
find that the record supports the above stated findings of fact
except as follows.
I find that the Union did not receive a letter purportedly
written by Kenneth Eller on behalf of Respondent, on May
23, 1994. The Union did not learn through that letter that Re-
spondent proposed several negotiation dates. Instead, I find
that Respondent failed to supply the Union with optional ne-
gotiation dates at any time after the Union’s March 11, 1994
request for a complete response to its November 13, 1993 re-
quest for information. Moreover, the credited record shows
that Respondent did not fully respond to the Union’s Novem-
ber 13, 1993, and March 11, 1994, request for information.
In that regard, the record does show that Respondent’s
January 1993 response to the Union’s November 23, 1993
request for information was incomplete. Respondent con-
tended that many of the questions were unanswered because
they sought information relating to the mining of coal which
Taft had not performed with unit employees since 1991, and
other questions were unanswered because the information
was not readily available.
With those points in mind, I find that the record reflects
that Respondent failed to pursue good faith negotiations by
(1) failing to fully respond to the Union’s request for infor-
mation; and (2) failing to supply the Union with dates on
which it was agreeable to meet and negotiate a new contract.
The record evidence is not in dispute regarding statements
by bargaining unit employees. Respondent president Charles
McCoy testified without rebuttal that the two unit employees
told him late in 1994, that they felt like the Union had aban-
doned them, that they had not had a raise in 5 years and they
felt like just suing the District (the Union).
The record is not in dispute as to comments the two unit
employees made to the Union following Respondent’s with-
drawal of recognition. Mike Clements, union representative,
testified that after Respondent withdrew recognition on Feb-
ruary 2, 1995, he met with the only two unit employees and
showed them Respondent’s letter withdrawing recognition.
Clements testified without rebuttal that the unit employees
‘‘let me know quick that they were paying (Union) dues and
yes, the Union represented them.’’
C. Legal Determinations
As shown above, Respondent and the Union have a history
of collective bargaining. On November 23, 1992, the Union
notified the Respondent of its intent to terminate their collec-
tive-bargaining agreement at its termination date of February
2, 1993, and to negotiate a new bargaining agreement. The
law is clear that under the circumstances shown in the above
factual findings there is a presumption that the Union contin-
ues to represent unit employees after the February 2, 1993
expiration of the collective-bargaining agreement. A pre-
sumption following the expiration of a collective-bargaining
contract, is rebuttable. Celanese Corp., 95 NLRB 664, 672
(1951); Hajoca Corp., 291 NLRB 104 (1988); and Curtin
Matheson Scientific, 287 NLRB 350 (1987), enfd. denied 859
F.2d 362 (5th Cir. 1988), revd. 494 U.S. 775 (1990), re-
manded 905 F.2d 871 (5th Cir. 1990).
Respondent contends that it did rebut the presumption of
continued majority support. Jurisprudence has established
that an employer may rebut that presumption by (1) proving
that the union has actually lost its majority status; or (2)
proving that the employer had a good-faith belief based on
objective considerations that the union had lost its majority
in a context free of employer unfair labor practices. Curtin
Matheson Scientific, supra; and Celanese Corp., supra.
Whether the evidence demonstrates a sufficient basis to
doubt the union’s status must be determined in light of the
totality of the circumstances. Johns-Manville Sales Corp. v.
NLRB, 906 F.2d 1428 (10th Cir. 1990)
Here, there was no showing that the Union actually lost
its majority status.
Instead, Respondent argues under the second option that it
had a good-faith belief based on objective considerations that
the Union had lost its majority in a context free of employer
unfair labor practices.
As to whether Respondent withdrew recognition in a con-
text of unfair labor practices, the credited record did show
that Respondent failed to engage in good-faith negotiations
with the Union in 1994 and 1995 when it failed to fully sup-
ply the Union with information requested for collective-bar-
gaining purposes and when it failed to respond to the
Union’s numerous requests for negotiation dates.
Moreover, the record shows that Respondent failed to
prove that it had a good-faith belief based on objective con-
siderations that the Union had lost its majority.
President McCoy testified that he withdrew recognition of
the Union on February 2, 1995: (1) because since he became
president on June 1, 1994, there had been no activity from
the Union; (2) because the unit employees had told him in
late 1994 that they felt like they had been abandoned by the
Union, they had not received a raise in 5 years and they felt
like they ought to sue the Union; and (3) on advise of coun-
sel.
As to McCoy’s claim there had been no union action after
June 1, 1994, the record is undisputed that Daryl Dewberry
spoke to Jimmy Alexander in January 1995. Dewberry asked
Alexander about scheduling negotiation dates. Alexander re-
plied that he was no longer with Taft due to corporate re-
structuring and that Dewberry should contact Ken Eller. On
January 24, 1995, the Union wrote Respondent that the
Union would accept any dates proposed by Respondent for
contract negotiations.
In view of the record and contrary to McCoy’s recollec-
tion, the Union contacted Respondent within the month be-
fore Respondent withdrew recognition. Before those contacts
there had been a hiatus of some 7 months between the Union
filing two first step grievances in May 1994 and the January
1995 events. The Board has, on occasion, considered a pe-
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
riod of inactivity by the Union in determining whether the
employer had a good-faith doubt of the Union’s continued
majority. Southern Wipers, 192 NLRB 816 (1971). However,
the Board has also held that a hiatus similar to that here,
does not justify withdrawal of recognition. King Soopers,
295 NLRB 35 (1989); Cowles Publishing Co., 280 NLRB
903 (1986); and Pennex Aluminum Corp., 288 NLRB 439
(1988), enfd. 869 F.2d 590 (3d Cir. 1989).
The Board has been reluctant to find that a break in nego-
tiations supports a good-faith doubt when that break is ex-
plained by factors other than loss of employee support.
Pennex Aluminum Corp., supra at 441. Here, as shown
above, the evidence shows that the Respondent failed to sup-
ply the Union with all requested information and that factor
may have contributed to the hiatus in union action during
1994. There was no showing that the hiatus was caused by
loss of employee support. An employer’s actions which ‘‘im-
properly affect the bargaining relationship itself,’’ may show
bad faith on the part of the employer. Hotel & Restuarant
Employees Local 19 (Burger Pits) v. NLRB, 785 F.2d 796,
799 (9th Cir. 1985).
Respondent also argued that the Union generally neglected
the unit by a lackluster handling of grievances. However, the
record showed that the Union discussed grievances that came
to its attention with Respondent’s representative and checked
on the accuracy of Respondent’s position with some of the
involved employees. The employees contacted by the Union
agreed with Respondent that they had been offered recall to
work. For that reason the Union did not pursue the griev-
ances. As to the one other grievance that was shown to have
come up and mentioned in the Union’s October 18, 1993 let-
ter to Respondent, the Union stated it would bring that griev-
ance up in negotiations. On the basis of that evidence I find
that the record did not prove that the Union was lackluster
in handling grievances.
Additionally, the record shows that the Union made sev-
eral efforts to negotiate a new contract and to otherwise rep-
resent unit employees. On November 23, 1992, the Union
wrote Respondent that it wanted to engage in contract nego-
tiations. The credited record shows without dispute that the
Union contacted Respondent on February 18, March 11, May
11, and October 18, 1993; March 9, April 2, and May 2,
1994; and during January and on January 24, 1995, and
asked either for negotiation dates or for information for the
purpose of negotiating a new contract. Even though Re-
spondent partially responded on January 22, 1993, to the
Union’s November 23, 1992 request for information, it never
did fully respond to that information request. Kenneth Eller
testified for Respondent that the Union was relying on its in-
formation request as an excuse for not meeting to negotiate
a successor agreement. However, that testimony was not sup-
ported by anything more than Eller’s belief. The record
showed that Respondent did not fully respond to the Union’s
information request and Respondent never explained to the
Union why it had not fully responded. Instead Respondent
ignored repeated requests of the Union. The Union contended
to Respondent that it needed the requested information to
fully prepare for negotiations. Respondent failed to show that
the Union’s request would not have assisted in negotiations
and Respondent failed to answer several request for response
from the Union. That evidence illustrated that it was Re-
spondent, rather than the Union, that was uncooperative and
that refusal to cooperate appears to have been the only rea-
son why negotiations did not go forward.
Kenneth Eller also testified that on other occasions the
Mine Workers Union has negotiated contracts even though
the employer has failed to respond to the Union’s informa-
tion request or has only partially responded to the Union’s
request. Nevertheless, in the instant case the Union did sub-
sequently tell Respondent that it needed a full response and
there was no showing that the Union was not justified in that
request. I am unable to determine that the Union was using
the information request as a delay tool on the basis of Eller’s
testimony that the Union had, on other occasions, continued
negotiations without any or a full response to the Union’s in-
formation request.
President McCoy’s second reason for withdrawing rec-
ognition involved his late 1994 conversations with the only
two employees in the unit. As shown above, McCoy’s testi-
mony that he relied on comments by unit employees made
in late 1994 and on advice of counsel, in withdrawing rec-
ognition on February 2, 1995, is unrebutted and credited. The
employees told McCoy that they felt they had been aban-
doned by the Union, they had not received a raise in 5 years
and they felt like they ought to sue the Union. The evidence
is also unrebutted and credited that following withdrawal of
recognition, the employees in the unit advised the Union they
wanted the Union to continue as their bargaining representa-
tive. As shown in Albany Steel, 309 NLRB 442, 456 (1992),
enfd. conditionally 17 F.3d 564 (2d Cir. 1994), supplemented
314 NLRB 1096 (1994). Nothing which the employer identi-
fied as an actual statement of an employee showed that any
employee was repudiating the union as his representative,
certainly not clearly repudiating. Phoenix Pipe & Tube, 302
NLRB 122 (1991), enfd. 955 F.2d 852 (3d Cir. 1991). See
also Suzy Curtains, Inc., 309 NLRB 1287 (1992), remanded
19 F.3d 11 (4th Cir. 1994), supplement 318 NLRB 391
(1995); and United Supermarkets v. NLRB, 862 F.2d 549
(5th Cir. 1989). The employees’ comments to McCoy may
have illustrated frustration with the Union but neither em-
ployee was shown to have said anything to the effect that the
Union no longer served as their representative.
I find that the credited evidence failed to show that Re-
spondent had a good-faith belief based on objective consider-
ations the Union had lost its majority on February 2, 1995.
Respondent did not rebut the presumption of continued ma-
jority support.
The parties stipulated that Respondent ceased making pen-
sion contributions which were required under the expired
collective-bargaining agreement, on behalf of unit employees,
after it withdrew recognition on February 2, 1995. It is estab-
lished in jurisprudence that a requirement to continue the ex-
isting benefit of pension contributions for unit employees
survives the expiration of a collective-bargaining agreement
and cessation of those contributions constitutes an unfair
labor practice. Natico, Inc., 302 NLRB 668 (1991); and
White Oak Coal Co., 295 NLRB 567 (1989). In view of my
findings herein that the Union continued to represent the unit
employees after February 2, 1995, I find that by unilaterally
withholding continued pension contributions for unit employ-
ees, Respondent engaged in an additional violation of Section
8(a)(1) and (5) of the Act.
611TAFT COAL CO.
CONCLUSIONS OF LAW
1. Taft Coal Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent, by withdrawing recognition and refusing,
on request, to recognize and bargain in good faith with
United Mine Workers of America as the exclusive collective-
bargaining representative of its employees in the following
appropriate bargaining unit and by ceasing to continue pen-
sion contributions for unit employees after it withdrew rec-
ognition from the Union, engaged in activity violative of
Section 8(a)(1) and (5) of the Act:
All production and maintenance employees employed
by the Respondent at its Oakman, Alabama facility, but
excluding all office clerical employees, guards and su-
pervisors as defined in the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent has unlawfully refused
to bargain with the Union, I shall order that it recognize the
Union and, on request, bargain collectively with the Union
as the exclusive bargaining representative of the employees
in the appropriate unit.
Having found that the Respondent unlawfully changed
terms and conditions of employment of unit employees by
ceasing to make payments to their pension benefits beginning
in February 1995, I shall order the Respondent, on request,
to restore withheld pension benefits and restore its practice
of paying pension benefits for unit employees.
Respondent is ordered to make the bargaining unit em-
ployees whole for all losses in pension benefits which they
suffered by Respondent’s unlawful action as prescribed in
Ogle Protection Service, 183 NLRB 682 (1970), with interest
to be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]