United Mine Workers

National Labor Relations Board - Board Decisions

Nov 4, 1969

179 N.L.R.B. 479 (N.L.R.B. 1969)

UNITED.-MINE WORKERS
W. A. Boyle, George J. Titler 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, Quin Morton, III, 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 established
by that Agreement and Arthur J. Galligan and
Dixie Mining Company, Intervenor. Case 5-CE-6
November 4, 1969
SECOND SUPPLEMENTAL DECISION
AND ORDER
On August 27, 1963, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding, concluding that the
Protective Wage Clause of the National Bituminous
Coal Wage Agreement of 1950, as amended, 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
clause, and (b) entering into, actively maintaining,
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, 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 Respondent- Unions; stating that on April 2,
1964, they had negotiated and executed with
representatives of the Respondent Operators named
in the Board's Order a new agreement, known as
the Bituminous Coal Wage Agreement of 1950, as
amended April 2, 1964, which agreement fully and
completely supplanted and superseded the 1958
Agreement. The Respondents' motion requested the
Board to determine that the 1964 Agreement was
not violative of Section 8(e) of the Act, and that
Respondents therefore be adjudged to be in
compliance with the Board's Order and that the case
be closed. On August 7, 1964, the Board issued a
Supplemental Decision and Order Denying Motion
in which it concluded that the 1964 Agreement was
nothing more than an implied union signatory
agreement placing restrictions on subcontracting
which are not "strictly germane to the economic
integrity of the principal work unit" and was
therefore not valid under Section 8(e) of the Act.
Accordingly, the Respondent Unions' motion to be
adjudged in compliance with the provisions of the
'144 NLRB 228.
479
Board's Order was denied.2
On August 4, 1965, the United States Court of
Appeals for the District of Columbia Circuit
remanded the case to the Board for further
consideration.3 Subsequently, on March 3, 1966, the
Board, pursuant to the Court's remand, remanded
the case to the Regional Director for Region 5 with
instructions that a hearing be held before a Trial
Examiner, for purposes of entering findings and
conclusions, and to recommend an appropriate
order, after hearing evidence on three issues which
are set forth in the attached Trial Examiner's
Decision. On May 11, 1969, the Board granted the
motion of Dixie Mining Company to intervene and
the proceeding came on for hearing in March 1967.
On June 20, 1967, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in the unfair labor practices alleged in the
complaint. Thereafter, the General Counsel, the
Intervenor, and Respondent Quin Morton III filed
exceptions to the Trial Examiner's Decision, and
supporting briefs, and Respondents W. A. Boyle,
George J. Titler, and John Owens, as agents for the
International Union, United Mine Workers of
America, filed cross-exceptions to the Trial
Examiner's Decision, and a supporting brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions and briefs, its earlier Decision,
Supplemental Decision, the Court's remand order,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
The Court of Appeals remanded this case to the
Board for consideration of certain issues in the light
of the Board's characterization- of the Protective
Wage Clause as "a union standards clause" and the
Court's holding in certain decisions that "such a
clause would not ordinarily violate 8(e) so long as it
was germane to the economic integrity of the
principal work unit; or sought to protect and
preserve the work and standards [the Union] has
bargained for." In view of the Trial Examiner's
findings and conclusions on the issues remanded to
him which we find are supported by the record in
this case, we find that the Protective Wage Clause
was adopted by the contracting parties in order to
protect and preserve the "unit work" of employees
covered by the contract by precluding the
subcontracting of "unit work" to operators who did
not maintain union standards.
In so finding, we reject our dissenting colleague's
view that the clause plainly violates Section 8(e) in
its application to single employer "work units"
'148 NLRB 249.
'350 F.2d 801.
179 NLRB No. 80
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of its failure to distinguish between
"substitute" and "supplemental" coal. First, as the
Trial Examiner noted, the record contains no
evidence as to the extent to which individual coal
producers who sign the agreement enter into
contracts for the sale of coal other than that which
they produce. Second, the record does contain
evidence that some individual coal producers -
signatory and nonsignatory alike - do not engage
in the practice of purchasing coal from other
producers to supplement their own production; that
it is a quite general practice for such, individual
producers to sell their entire production to the
operator - whether signatory or nonsignatory -
from whom they lease the lands they mine; and that
such coal is subsequently prepared for sale and is
sold by the lessor-operator. In the light of this
evidence, we agree with the Trial Examiner that the
parties' stipulation that "the purchasing of coal by
one producer from another producer is an essential
marketing practice within the industry" does not
establish the invalidity of the clause as applied to
single employer "work units." Moreover, the Lewis
affidavit submitted in support of the above
stipulation indicates that many of the purchases
made by one producer from another producer
involve "substitute" coal.
We also reject our dissenting colleague's
conclusion that the stipulation establishes a prima
facie case of violation of Section 8(e) as it is applied
to associationwide "work units," and that it was
incumbent on the Respondents to come forward
with evidence rebutting such prima facie case. As
the Trial Examiner found, the record discloses that
the ostensible purpose of the clause is to prohibit the
purchase of "substitute" coal by a signatory
operator from operators whose labor conditions
enable them to sell more cheaply, and discloses, as
well, a potentially widespread area for lawful
application of the clause.
In, our opinion, the incidence of "supplemental"
coal purchases by members of multiemployer work
units reflected in this record is insufficient either to
establish that the parties entered into this clause to
achieve a secondary objective or that its failure to
distinguish between "substitute" and "supplemental"
coal gives it a wider application than is required to
permit achievement of the admittedly lawful
objective of preserving unit work and work
standards. The statistical evidence introduced by the
General Counsel to prove an unlawful application of
the clause as to multiemployer units demonstrates
that at all times when operators in such units were
engaged in purchasing nonunit coal, the mines in the
unit were producing at less than capacity, and that
in 3 of the 4 years the productive capacity of the
units involved exceeded the total amount of coal
sold by operators in that unit. Only in 1 year did the
total amount of coal sold exceed productive
capacity, and, then, only by a di minim is amount of
less than 2 percent. Obviously, the Union has a
legitimate interest in restricting outside purchases of
nonunit coal in order to promote fuller mining of
existing capacity , and in preventing operators from
purchasing "substitute" coal under the guise of
"supplemental" coal. Moreover , ` it does not appear
that practical means exist whereby either the Union
or operators within a particular multiemployer unit
can know at the time of any particular purchase
that it involves "supplemental" coal because there is
no unit coal available or idle capacity within the
unit. This is not to say that the clause may not have
been applied to purchases of coal which in hindsight
may be seen to have involved "supplemental" coal.
It is to say that the evidence of such application of
the clause as was produced by the General Counsel
does not constitute a prima facie case that the
clause is not germane to the economic integrity of
the work units.
Accordingly, and as this Board has accepted the
Court's view of the legality of protecting unit work
through the medium of a union standards clause,4
we find that the Protective Wage Clause does not
contravene Section 8 (e), and we shall dismiss the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and upon the entire
record in this case, the National Labor Relations
Board hereby orders that the complaint herein be,
and it hereby is, dismissed.
MEMBER JENKINS, concurring:
I have previously indicated, at least with respect
to the 80 cent welfare payment required per ton of
coal purchased by union operators for resale on
which the Union's 40-cent welfare payment had not
been made, that the "work unit" which the clause
sought to protect was nationwide in scope, and that
the 80-cent clause therefore had a work protection
object and did not violate the Act. Raymond O.
Lewis, 148 NLRB 249. My colleagues, in finding
the protective wage clause presently before us does
not violate the Act, now seemingly agree that it does
not become unlawful simply because the work it
protects may be outside the scope of work
performed by the individual producer, or even by a
multiemployer association of such producers. I have
no difficulty accepting this conclusion since it is
embraced within my previously-stated view, above;
it is unnecessary at this point for me to consider
whether the "work unit" protected by the wage
clause is nationwide in scope as I found it to be in
the case of the clause protecting the welfare
payments. Accordingly, I join in dismissing the
complaint.
CHAIRMAN MCCULLOCH, dissenting:
I disagree with the decision to dismiss the
complaint.
'See for example,,S.E. McCormick, Inc, 159 NLRB 84, International
Union , United Mine Workers of America , 165 NLRB No 49
UNITED MINE WORKERS 481
This case was originally submitted to the Board
on an agreed statement of facts. A Board panels
found that the Protective Wage Clause (PWC) in
the collective-bargaining agreement between
Respondents, and Union and Employers, violated
Section 8(e) of the Act.' The Board rejected the
Respondents' argument that the PWC had a lawful
object of preserving the work and work standards of
employees covered by collective-bargaining
contracts Rather, the Board found, the purpose of
the clause was "to create pressure conducive to the
extension of the Union's contract to unorganized
producers . ." in making these findings the Board
assumed, without deciding, that the contract unit,
rather than the various associationwide and
single-employer units covered by the National
Bituminous Coal Wage Agreement, was the
appropriate unit for purposes of deciding whether
the object of the clause was to preserve work for
employees in the unit. In accordance with its finding
of violation of the Act, the Board ordered
Respondents to cease giving effect to the PWC.
Thereafter, Respondent Union filed a motion
which stated that the Union and Respondent
Employers had signed a new collective-bargaining
agreement which no longer included the PWC, and
requested the Board to find that the new agreement
was not violative of Section 8(e), that the Board's
previous order had been complied with, and that the
case be closed. A Board majority' denied the motion
upon the ground that in place of the unlawful PWC,
the contracting parties had substituted another
provision (known as the 80-cent clause) which was
equally unlawful, and therefore there had been no
compliance with the Board's Order.8 The Board said
that the new clause "realistically appraised, is
nothing more than an implied union signatory
agreement restricting the subcontracting of work to
operators under contract with the UMW, without
regard to unit considerations." As a preliminary to
this conclusion, the Board rejected the Union's
contention that there existed a single industrywide
bargaining unit, and instead found that the Union's
national contract covered a multiplicity of such
units.
Subsequently, the validity of the "80 cent clause"
was challenged in a separate unfair labor practice
proceeding, and a Board majority' reaffirmed its
earlier conclusion that the "80 cent clause" was
invalid under Section 8(e) of the Act.'° The Board
majority also reaffirmed its previous finding that
there was no single industrywide bargaining unit,
but rather a multiplicity of single employer and
multiemployer association bargaining units
corresponding to the units for which spearate
negotiations are conducted with the Union. Further,
the Board held, the `unit' for which subcontracting
clauses may lawfully seek to preserve work are units
appropriate for collective bargaining within the
meaning of Section 9 of the Act."
Meanwhile, the Union sought review of the
Board's Order in the PWC case." The Court of
Appeals remanded the case to the Board for the
declared reason that it was uncertain of the Board's
finding with respect to the "work unit."' E It pointed
out that the Board's initial decision assumed that
the unit consisted of the totality of workers covered
by the contract, whereas in the subsequent related
proceeding the Board found that the proper units
are the employees of the various multiemployer
groups and individual operators with whom the
Union contracted. The Court also discussed some of
the consequences which might result from different
"work unit" findings.
The Board accepted the remand and referred the
case back to the Regional Director with instructions
to arrange a hearing before a Trial Examiner to
receive additional evidence bearing on three issues
which are set out in the attached Trial Examiner's
Decision. The Trial Examiner was then instructed to
prepare and issue a Supplemental Decision based on
the evidence received at the reopened hearing as well
as on the record previously made, and in the light of
the opinion of the court of appeals.
The Trial Examiner has issued his Supplemental
Decision recommending that the complaint be
dismissed. My colleagues have adopted this
recommendation. I think that the Trial Examiner is
wrong in his findings and that the members of the
majority are wrong in adopting them.
The first question covered by the remand order of
the Board was the scope of the "work unit" or
"units" covered by the PWC The Trial Examiner
found , and a majority of Board members agree with
him, that the terms "work unit" and "bargaining
unit" are synonomous. Hence there exists not one
"work unit" but a multiplicity of such units, some
covering the employees of only a single employer,
others covering multiemployer units of greater or
less extent.
The second question in the remand order is
whether employees in the "work units" have a
primary interest" in regulating the purchase of
"supplemental coal" because employers in such
units have the capability of producing all the coal
required by an individual employer in the unit in
order to fulfill his sales commitments.
"Supplemental coal," the parties have stipulated, is
coal which an operator cannot produce from his
'Chairman McCulloch, Members Rodgers and Leedom
'144 NLRB 228
'Chairman McCulloch , Members Fanning, Leedom, and Brown,
Member Jenkins dissented
'148 NLRB 249
'Chairman McCulloch, Members Fanning, Brown, and Zagona,
Member Jenkins dissented
"International Union , UMWA (Dixie Mining Company ), 165 NLRB
No 49
"144 NLRB 228
"Lewisv N L R B, 350 F 2d 801 (CA.DC)
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own facilities, either because his facilities are
inadquate to produce the volume of coal required,
or because they cannot produce the particular grade,
quality, size or mix of coals desired by the
consumer. Some of the employers also do not
themselves produce any coal for sale. These are
"preparers" who purchase all their coal from others.
As to "work units" which consist of a single
employer's employees, whether these are
"producers" or "preparers," the PWC by the very
definition of "supplemental" coal cannot have a
function of preserving the work for or the work
standards of the employees in the unit since these
employers must purchase coal from others. As the
Court stated in remanding this case to the Board:
But when an operator's sales contracts include
grades, types and qualities of coal he cannot
produce in his own mines, he must purchase
"supplemental" coal from other producers.
Ordinarily such purchases would not appear to
threaten the employees' jobs. Failure of the clause
to distinguish substitute coal from supplemental
coal may give it wider application than is required
for protection of the employees of any one
operator.
Accordingly, the PWC is plainly a violation of
Section 8(e) as to single-employer units.
As to multiemployer units, the Trial Examiner
considered only two of the larger multiemployer
units because the General Counsel was able to offer
evidence only as to these two "after a year of trying
to come up with some meaningful figures which
would relate to Point 2 of the remand." The Trial
Examiner ruled that the General Counsel had the
burden of proving the extent to which the PWC
applies to "supplemental" coal purchased by the
employers in each "work unit." I submit that the
Trial Examiner was in error in failing to distinguish
between ultimate burden and the burden of going
forward with the evidence. It seems obvious that if
the employers in any "work unit" are able to
purchase all the "supplemental" coal required from
other employers in the same unit, the Respondents
should be able to produce the figures to support this
contention. It is unreasonable to require the General
Counsel to produce statistics of employer sales,
capacity, and purchases, which, as the fact proves, is
an almost impossible task for him with his limited
and inexperienced personnel, when the Respondents
with their thorough knowledge of their own
operations and industry practice, are so much better
able to produce meaningful statistics." I do not
mean to imply that because proof of violation of the
Act is difficult, the burden shifts to a respondent to
prove non-violation. But I do think that the
stipulation of the parties with respect to
"supplemental" coal, 14 and the finding, in which the
Board majority concurs, that there are a multiplicity
of "work units," is sufficient to establish, prima
facie, that the PWC has a prohibited object in
multiemployer as well as single "work units" and
that the burden of going forward to offset this prima
facie case by showing that the PWC has a legitimate
work preservation or work standards function
shifted to Respondents, who are so much better able
than the General Counsel to prove this by evidence.
Respondents incontestably have not met this burden.
Moreover, although the statistics adduced by the
General Counsel showing productive capacity and
sales for two of the most important associationwide
units are in general valueless to prove the extent to
which the employers in these units must purchase
coal from nonunit sources,' S in one of these units
during 1963, total sales exceeded productive capacity
by about 725,000 tons which is evidence that for this
year, members of this association had to purchase
substantial tonnages of coal from nonunit sources in
order to meet their commitments.16
Because the PWC fails to distinguish between
"substitute" and "supplemental" coal, its effect
extends beyond protecting the work and work
standards of employees in the "work units."
Accordingly, I would affirm the Board' s original
holding in the case and find that the PWC violates
Section 8(e) of the Act.
"Cf Pratt & Whitnevv NLRB , 3101`2d 676 (C A 5)
The Trial Examiner explicitly ignored the stipulation in reaching his
conclusion that the PWC was lawful At no time did Respondents
repudiate the stipulation There is nothing in the Court 's remand as I read
it, that requires ignoring it On the contrary , the court's opinion refers to
the facts included in the stipulation as data in the case There is every
reason therefore for accepting the stipulation as the parties intended it
should be accepted , as a statement of fact in lieu of evidence
"A comparison of total "work unit" capacity and total "work unit"
sales is not necessarily meaningful because , as the parties stipulated,
certain purchasers may require a particular grade , quality, size or mix of
coals which a vendor may not be able to supply from his own mines Total
capacity may thus be meaningless unless employers in the "work unit" can
supply the different varieties of coal required by unit employer customers
Further, for a variety of reasons producing enterprises are rarely able to
function at theoretical capacity over extended periods of time
"The third question posed in the remand order need not be answered
because it was based on the assumption that the Board would find that the
"work unit " included all employees covered by union contract The Board
majority has found above that there is not one but a number of "work
units "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK V REEL, Trial Examiner. This proceeding
was heard at Washington, District of Columbia, on March
30, and April 24 through 26, 1967, pursuant to remand
from the National Labor Relations Board, which in turn
acted pursuant to an order of the United States Court of
Appeals for the District of Columbia Circuit, remanding
the case to the Board ' Prior steps in the litigation are
reported at 144 NLRB 228, 148 NLRB 249, and 350 F.2d
801 I shall assume that all persons who have occasion to
read, apply, or review this Decision are familiar with, and
have ready access to, the three decisions just cited, and I
shall endeavor to avoid unnecessary repetition of matters
set forth therein
'The caption of the case has been amended to reflect substitution of
parties Respondent and the Board's granting of Dixie Mining Company's
motion to intervene
UNITED MINE WORKERS
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by General Counsel, by the Union (see 144
NLRB at 229, fns. I and 2), by the Intervenor , and by the
Bituminous Coal Operators Association as amicus curiae,
I make the following
SUPPLEMENTAL FINDINGS OF FACT
A Events Since the Decision of the Court of Appeals
The Court of Appeals remanded the case to the Board
in a Decision issued August 4, 1965. On March 3, 1966,
the Board remanded the case to the Regional Director
with instructions that a hearing be held before a Trial
Examiner , who was to enter findings and conclusions, and
to recommend as appropriate order , after hearing evidence
on the following three issues
(1) the scope of the "work unit" or "units", as the
case may be, covered by the Protective Wage Clause;
(2) whether employees in the "work unit" or "units"
have a "primary interest" in regulating the purchase of
"supplemental coal" because the unit includes
employees of employers , who taken together , have the
capability of mining and producing all grades, types
and qualities of coal in the quantities which one or
another employer in that unit may be required to
purchase in order to enable it to obtain and fulfill sales
orders;
(3) whether , notwithstanding the "primary interest"
of employees in restricting the freedom of their
employers to make purchases of "supplemental" and
"substitute" coal, the Protective Wage Clause bears
only an incidental relationship to protecting the work
standards provided in the National Bituminous Coal
Wage Agreement of 1950, as amended, because, either
by effect or design, the Clause operates to compel the
unorganized segment of the industry to become
signatory to the Agreement
On May 11, 1966, the Board granted the motion of Dixie
Mining Company to intervene in this proceeding.
The proceeding came on for hearing in March 1967. At
the hearing , General Counsel explained that the delay
between the Board ' s Order remanding the case and the
holding of the hearing was caused by the difficulties which
General Counsel had experienced in collecting the data
which he deemed necessary to introduce into the record to
shed light on the issues raised in the order of remand.
After introducing into evidence the data in question,
General Counsel rested The balance of the hearing was
devoted to evidence adduced by Intervenor and by the
Union.
B The "work unit"
The term "work unit" does not appear in the Act The
statute does refer to "the unit appropriate for the
purposes of collective bargaining " and in labor law jargon
that phrase has been simplified to "bargaining unit." In
the instant case, the contract in question has been adopted
in several "units appropriate for collective bargaining."
The facts establish that the Bituminous Coal Operators
Association and the Southern Coal Producers Association
executed this contract on behalf of their members, so that
under familiar principles each of those associations
constitutes a single multiemployer appropriate bargaining
unit . Other smaller associations which sign on behalf of
their members likewise constitute multiemployer
483
bargaining units Other coal operators , independent of any
association , likewise signed this contract , and the
employees of each of them likewise comprise appropriate
bargaining units.
If the Court of Appeals, from whose decision the Board
took the term "work unit ," used the term as
interchangeable with "bargaining unit," then the "work
units" are, as described in the preceding paragraph, the
employees of all the employers in a particular employer
association and the employees of each independent
signatory . The Union and the Bituminous Coal Operators
Association are of the view, however , that the term "work
unit" is not synonymous with "bargaining unit, " and that
the former embraces all of the bargaining units covered by
this contract . Intervenor likewise finds the "work unit" to
be different from "bargaining unit," arguing that the
"work unit" is limited to the employees of a single
employer, even in multiemployer bargaining units. General
Counsel and counsel for Respondent Morton take the
view that "work unit" and "bargaining unit" are
synonymous
The term "work unit " in this context first appeared in
District No 9 I A.M v. N L R.B., 315 F.2d 33, 36
(C.A.D.C. per Fahy, J.). In that case, the "bargaining
unit" was a multiemployer unit, and the court sustained
the finding of a violation of Section 8(e) because the
sanctions of the contract in question ran against
employers "not parties to a contract with" the Union. The
"principal work unit " to which the court referred was the
single multiemployer unit. The case thus seems to militate
against Intervenor ' s construction (that "work unit" is
confined to employees of a single employer ), but sheds no
light on whether the court viewed the term as implying
something different from "bargaining unit." Subsequent
cases in which the court used the term "work unit,"
quoting from the District 9 case, shed no further light on
the question . In the instant case, however, the court seems
to indicate that it is using the term as synonymous with
"bargaining unit ." The court states (350 F.2d at 802).
The Board 's counsel assumes that the "work unit,"
which governs the application of Sec 8 (e) here,
consists of the employees of individual mine operators.
But the Board ' s opinion assumes that the unit is the
totality of workers covered by the contract , i.e., workers
representing 74 to 79 per cent of national bituminous
coal production. Finally, in a subsequent , related
proceeding, the Board found that the proper units are
the employees of the various multi-employer groups and
individual operators with whom the Union contracted.
[Footnote omitted.]
The last sentence just quoted refers to the Board's
Supplemental Decision of August 7, 1964 , 148 NLRB
249. In that Decision the Board stated that the contract
"covers a multiplicity of bargaining units rather than a
single industrywide unit " As it is this language to which
the court appears to refer when it uses the expression
"proper units" in a paragraph dealing with "work unit,"
this analysis would lead to the conclusion that the several
expressions are synonymous
One difficulty with this approach is that it gives rise to
the question why, if the Board spoke so clearly in its
Supplemental Decision , did the court find it necessary to
remand the proceeding to ascertain the Board ' s view. The
court refers to the Supplemental Decision as being only a
"subsequent related proceeding ," and also refers to what
it regarded as a divergence between views expressed by the
Board in its original Decision and those expressed in its
brief to the court . The Board itself, in its Supplemental
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision, said with respect to the "appropriate" or
"bargaining" unit that in its original decision it "reserved
decision on this issue " 148 NLRB at 253. It may be that
the court simply desired to have the Board reconsider the
entire matter. In any event, upon such reconsideration. I
find that for reasons indicated above, I cannot accept
Intervenor's argument that the "work unit" is limited to
employees of individual employers Also, for reasons
similar to those expressed by Trial Examiner Hunt in
International Union, United Mine Workers, Case 5-CE-8,
I cannot accept the Union's argument that all the
signatories constitute a single units I therefore find that
"work unit" and "bargaining unit" are synonymous or
coextensive
C The Coal - Producing Capacity of the Units
The Board's second question on the remand is whether
and to what extent each of the units here involved
"includes employees of employers who, taken together,
have the capability of mining and producing all [the] . .
coal which one or another employer in that unit may be
required to purchase in order to obtain and fulfill sales
orders " The phrasing of the question suggests that the
Board was concerned primarily if not exclusively with the
multiemployer bargaining units. In any event, the record
contains no evidence as to the extent to which individual
coal producers who sign the agreement enter into
contracts for the sale of coal other than that which they
produce
The General Counsel, who bears the burden of proving
the illegality of the clause, stated at the hearing that he
was offering evidence on this point only with respect to
the two large employer associations because "they are the
only ones we could get after a year of trying to come up
with some meaningful figures which would relate to Point
2 of the remand." In his brief, General Counsel argues
that the independent producers buy "supplemental" as
well as "substitute" coal, and that the Protective Wage
Clause is necessarily invalid insofar as it applies to their
purchases of "supplemental" coal But the sole authority
cited for the fact that such producers', buy "supplemental"
coal is the original stipulation which recites that "the
purchasing of coal by one producer from another producer
is an essential marketing practice within the industry,"
and that statement in turn refers for its support to the
affidavit of John L Lewis (Exhibit 19 attached to the
stipulation) which recites that "in many instances" such
purchases were of "substitute" and not of "supplemental"
coal As I see it, one of the reasons for the remand was to
give General Counsel an opportunity to show to what
extent the Protective Wage Clause applies to
"supplemental" as well as to "substitute" coal. I cannot
accept his argument based on the original stipulation, this
material was before the Court of Appeals which sent the
case back for further evidence I turn, therefore, to the
new material offered by General Counsel pertaining to the
purchases of coal by members of the two largest
multiemployer units.
These statistics show that in the larger unit, the
Bituminous Coal Operators Association, in both 1962 and
1963 (the last full years the Protective Wage Clause was
in effect), the productive capacity of the mines in that
unit, over 100 million tons, exceeded the amount actually
produced by over 13 million tons, and exceeded the
amount sold by approximately 5 million tons. In 1962 the
productive capacity of the mines in the Southern Coal
Producers Association, somewhat over 28 million tons,
exceeded their actual production by about 2 million tons,
and exceeded the amount sold by about 400,000 tons. But
in 1963 the productive capacity of that group exceeded its
production by less than I million tons, and the amount
sold exceeded productive capacity by about 725,000 tons.
General Counsel argues that this last statistic proves that
the Protective Wage Clause is operative in cases where the
employer is required to buy "supplemental" coal
Once again, however, merely establishing that the
clause has some applicability, in that purchases of
"supplemental" coal occur in the industry, falls short, in
my judgment, of establishing the invalidity of the clause.
The ostensible purpose of the clause is to prohibit the
purchase of "substitute" coal by a signatory operator
from operators whose labor conditions enable them to sell
more cheaply. This valid objective of preserving work for
the employees in the unit is not rendered invalid because
an occasional incidental effect is to inhibit the purchase of
coal which the employees in the unit could not have
produced The statistics cited above attest the validity of
the clause, at least as applied in the major multiemployer
unit, and in t year in the second largest unit The fact that
in l year the clause also operated with respect to
"supplemental" coal in the latter unit no more taints the
entire matter with illegality than the incidental secondary
effect of primary picketing destroys the legality of a
primary picket line The validity of the clause must turn
on its overall impact, not on hindsight applications to
particular units The statistics referred to above establish
that the clause has at least a potentially widespread lawful
application, and that compared with its apparently lawful
incidence, its arguably illegal application was minor and
incidental. Even in the year when in one unit sales
exceeded capacity by 725,000 tons, production was
760,000 tons short of capacity, so that the impact of the
clause even in such circumstances should in theory be
equally divided between discouraging "substitute" coal
and applying to necessary purchases of "supplemental"
coal.
The clause therefore appears to meet the test of validity
implied in the second issue remanded, and at least its
general overall lawful application in this regard is such
that General Counsel has failed to establish its invalidity
merely by showing, after the fact, that it may on occasion
have some "secondary" impact
Intervenor urges that the Protective Wage Clause must
be held invalid as applied to "preparers" of coal for
marketing, who do not themselves mine or "produce"
coal All the coal handled by such nonproducers is
"supplemental" coal in the sense that none of it could be
produced by the employees of the "preparer," as the latter
is not engaged in coal production. But the "preparers"
described in this record sell their coal to larger coal
producers and distributors. Such purchasers, if signatory
to the contract, are properly concerned with whether the
coal which they purchase from the preparer was produced
under labor standards comparable to those set forth in the
basic contract.' Requiring the "preparer" to guarantee to
his customers that the coal he sells them was produced
under union standards does not establish any invalidity in
'Examiner Hunt ' s decision was affirmed by the Board , 165 NLRB No
49, issued while this decision was being reproduced for issuance and
distribution
'If the "preparer" sold to a nonsignatory , the Protective Wage Clause
would appear to be invalid as applied to the "preparer " But there is no
showing that preparers sell to nonsignatories
UNITED MINE WORKERS 485
the Protective Wage Clause, but instead merely illustrates
the basic reason why the clause exists; namely, to prevent
the marketing of coal produced under substandard
conditions to operators whose employees, employed under
the contract, are idled by the purchase of "substitute"
coal.'
D Does the Protective Wage Clause , by Intent or
Effect, Compel the Unorganized Segment of the
Industry to Sign the Agreement'
The Board in its original Decision in this matter
expressly rejected General Counsel ' s contention that the
Protective Wage Clause bound the signatory operators to
purchase coal only from each other 144 NLRB at 237,
footnote 10 The Board's Order remanding the case
implies that the issue is open to reexamination , for the
order invites evidence on whether "either by effect or
design, the Clause operates to compel the unorganized
segment of the industry to become signatory to the
Agreement."
Both by "design " and by "effect " the Protective Wage
Clause manifestly encourages the unorganized segment of
the industry to become signatory to the agreement. A
signatory is presumed to be in compliance with the
Protective Wage Clause unless and until his
noncompliance is established by procedures provided in
the contract . As the clause requires signatories to
purchase only coal mined or produced under conditions as
favorable to employees as those provided in the contract,
purchase from another signatory affords the purchaser
assurance that he is observing his contractual obligation.
Indeed , it would not be easy for nonsignatories to meet
the labor standards set in the basic contract , for among
these standards is participation in a Welfare and
Retirement Fund which nonsignatories would find it
difficult to match Testimony in the record shows what
would be reasonably inferred in the absence of such
testimony , namely, that employers who did not sign the
agreement lost customers because of that failure to sign
The question before me on remand , however, is not
whether the clause operated to encourage the unorganized
segment of the industry to become signatory to the
agreement , but whether it operated to compel such a
result . Of course , if no reasonable alternative existed to
succumbing to the "encouragement," then
"encouragement " is merely a euphemism for
"compulsion ." But this record suggests that reasonable
alternatives did exist . Thus, when Intervenor had to stop
selling coal to a signatory , Intervenor marketed its coal
elsewhere Orville Oney, a coal operator called as a
witness by Intervenor , operated for a period of time as a
signatory and for another period as a nonsignatory, and
testified that the change "didn't make any" difference in
his operations or marketing Operator Ed Worley, a
witness for Intervenor , testified that cancellation of his
contract with the Union did not significantly affect his
operations . Operators not signatory to the agreement may
market their coal not only to other nonsignatory operators
but also to consumers or to brokers dealing with
consumers Intervenor ' s witness Cloyd McDowell,
president of the Harlan County Coal Operators
'Respondent Morton, called as a witness by Intervenor , testified that two
companies with which he had been associated purchased "supplemental"
but not "substitute" coal The record does not establish from whom the
coal was purchased or whether Morton ' s companies were part of a
multiemployer bargaining unit, nor does it indicate the amount of coal
purchased
Association, testified that he could not think of any
company which went out of business because it could not
sell to signatory operators.
Intervenor contends that the Union's real concern is not
with protecting the labor standards set up under the basic
contract, but with bringing more operators and their
employees within its orbit, and that the basic purpose of
the Protective Wage Clause is to drive the unorganized
segment of the industry into the Union's arms rather than
to preserve labor standards In support of this theory
Intervenor introduced evidence intended to establish that
union representatives permitted operators to sign the basic
agreement with oral understandings that the operators
would not live up to its terms Without detailing the
evidence, I note that the testimony in this respect of
Robert Holcomb, president of the Intervenor, was
contradicted by Union Representative Carson Hibbitts,
and that Intervenor failed to substantiate Holcomb's
version through the testimony of witness Ratliff, although
Holcomb named Ratliff as having witnessed Hibbitt's
alleged offer Ratliff in turn testified to a similar offer
allegedly made to him by Union Representative Newsom,
since deceased, but Ratliff admitted knowing that
Newsom lacked authority to negotiate any such oral
agreement
Intervenor produced several witnesses who had
defaulted in their welfare fund payments under the
contract, and had been held liable in court to the trustees
of the welfare fund. They and other witnesses called by
Intervenor also testified that they did not pay the union
wage scale, but there is no showing that any responsible
union official agreed to their not doing so Assuming that
they violated not only their welfare fund obligations but
also their basic wage obligations, the record in this case
warrants only the finding that the Union's failure to call
them to account for the latter failure stems from the
Union's lack of knowledge thereof and not from any oral
agreement permitting variation from the contract terms.
The Union would know of wage violations only if such
matters were brought to its attention through regular
channels, beginning with an employee's complaint to his
steward
Both General Counsel and Intervenor find in the
testimony of Union Representative Hibbitts an admission
that the purpose of the Protective Wage Clause was to
promote union organization rather than to prevent the
undercutting of labor standards Asked what he told local
union officials in 1958 as to the purpose of the clause,
Hibbitts testified
We would sign a contract with these coal companies
and they would go out and lease out some land and buy
non-union coal and throw it on the market as union
coal and cut their own employees off And the coal
companies were chiselling on their men It was put in
there to protect the union and protect the membership
of the union
I read that testimony as completely consistent with the
avowed purpose of the clause, and consistent with other
testimony in the record before me and with the original
stipulation in this case, that the Protective Wage Clause is
directed at restoring employment opportunities to
employees covered by the contract which they were losing
because cheaper labor was making it more profitable for
signatory operators to buy cheap coal than to produce
their own.
Accordingly, I find that the Protective Wage Clause
bears more than an incidental relationship to protecting
the work standards set in the basic agreement, and that it
operates to encourage, but not to compel, the unorganized
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
segment of the industry to become signatory to the
agreement 5
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.6
CONCLUSIONS OF LAW
I adopt the first two conclusions of law set forth by the
Board in its original Decision, 144 NLRB at 238, 239. 1
amend the third conclusion there set forth by inserting the
word "not" before "prohibited," and the fourth
conclusion by inserting the word "not" before "violated"
and before "violating "
'Such encouragement could , of course, result in violations of the type
found in I L G W U v N L R B, 366 U S 731 , but no issue with respect
thereto is presented in this case
'Should the Board disagree with my result and adhere to its original
view that the clause is invalid , I would suggest that the Board consider
eliminating par 2(a) of its Order relating to notice posting , as the clause
has not been in effect for several years Cf Curtiss- Wright Corporation
145 NLRB 152, 157-158