United Mine Workers of America, Local 1600

National Labor Relations Board - Board Decisions

Jul 13, 1977

230 N.L.R.B. 830 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Mine Workers of America, Local 1600 and
Bethlehem Mines Corporation and United Mine
Workers of America, Local 6411. Case 6-CD-610
July 13, 1977
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Bethlehem Mines Corporation
(hereinafter Bethlehem), alleging that United Mine
Workers of America, Local 1600 (hereinafter Local
1600), violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing Bethlehem to assign certain work to
employees represented by Local 1600 rather than to
employees represented by United Mine Workers of
America, Local 6411 (hereinafter Local 6411).
Pursuant to notice, a hearing was held before
Hearing Office Donald J. Burns on November 17
and December 15, 1976, in Pittsburgh, Pennsylvania.
All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, all parties filed
briefs, Local 1600 and Merlo filing jointly. Subse-
quent to the filing of the briefs, Local 6411 filed a
motion to stay proceedings pending arbitration and
Bethlehem filed a motion and a letter in opposition
thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this case and hereby makes the following findings:
1. BUSINESS OF THE EMPLOYERS
The parties have stipulated that Bethlehem, a West
Virginia corporation with its principal place of
business located in Bethlehem, Pennsylvania, is
engaged in the mining and nonretail sale of coal and,
during the past 12-month period, shipped material
i Charles J. Merlo, Inc. (hereinafter Merlo), employer of the Local 1600-
represented employees who claim the disputed work herein, fully participat-
ed as a party in the hearing.
For several years prior to August 1976, Merlo's four full-time
employees were members of Local 6411 while its two part-time employees
were members of Local 1600. Subsequent to the reassignment of the work in
230 NLRB No. 111
valued in excess of $50,000 to points outside the
Commonwealth of Pennsylvania from its mines
located within the Commonwealth of Pennsylvania.
The parties have stipulated that Merlo, a Pennsyl-
vania corporation, is engaged in trucking and related
activities around coal mines and during the last 12-
month period performed services for corporations,
including Bethlehem, which are themselves directly
engaged in interstate commerce, and that these
services were in excess of $50,000.
The parties have stipulated, and we find, that both
Employers are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. We find it
will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION
The parties stipulated, and we find, that Local 1600
and Local 6411 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. The Work in Dispute
The work in dispute involves the operation of
trucks and heavy equipment in connection with the
hauling of mine and cleaning plant refuse, day-to-
day grading of refuse piles, and maintenance of
hauling roads on the dump at Bethlehem's Mine No.
77 in Mineral Point, Pennsylvania.
B. Background and Facts of the Dispute
Four full-time and two part-time employees oper-
ate three trucks which haul refuse away from the
mine and deposit it at a refuse dump, and operate a
bulldozer to grade the dump.
Bethlehem subcontracted the work in dispute to
Merlo when operations commenced at Mine No. 77
in the early 1960's, and Merlo performed the work
continuously with its own employees from that time
until August 1976.2
In June 1976, Local 6411 (which represents
Bethlehem's employees) filed a grievance against
Bethlehem pursuant to article II, section (a), of the
1974 Coal Wage Agreement alleging that Bethlehem
violated the aforementioned provisions of the collec-
tive-bargaining contract by subcontracting the work
in dispute to an outside contractor who performed
dispute to employees of Bethlehem, the four full-time employees were
transferred to other Merlo operations and became members of Local 1600.
Local 1600 was established in 1968 by the International to represent the
employees employed by contractors who perform work at coal mines with
United Mine Workers of America District 2's geographical jurisdiction.
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LOCAL 1600, UNITED MINE WORKERS
the work with its own employees rather than
employees of Bethlehem. 3 Thereupon, Bethlehem-
believing in the probable applicability of a recent
Arbitration Review Board 4 decision interpreting the
aforementioned clause as it applied to similar
disputed work at a mine owned by another employ-
er-canceled its contract with Merlo and filled the
jobs which comprise the work in dispute with its own
employees. Merlo reassigned its employees at Mine
No. 77 to other work.
C. Contentions of the Parties
Local 1600 and Merlo contend that application of
the Board's criteria for the resolution of jurisdictional
disputes-including initial employer assignment and
preferences; employer and area practice; efficiency
and economy of operations; relative skill, training,
and safety; employee job loss; collective-bargaining
agreements; and arbitration awards-would require
that the work in dispute be awarded to employees
represented by Local 1600.
Both Local 6411 and Bethlehem argue that
application of our traditional criteria for determining
jurisdictional disputes dictates that the work in
dispute be awarded to employees of Bethlehem
represented by Local 6411. Bethlehem also asserts it
has a legal right to assign work at Mine No. 77 to its
own employees regardless of custom or practice in
the past concerning the employment of subcontrac-
tors.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the Act, it
must be satisfied, inter alia, that the parties have not
agreed upon a method for the voluntary settlement of
the dispute.
We find, for the reasons stated below, that an
agreed-upon method exists for resolving this dispute
inasmuch as all parties herein are required to submit
their jurisdictional disputes to the Arbitration Re-
view Board for determination as provided in the Coal
Wage Agreement of 1974.
The 1974 agreement was negotiated by United
Mine Workers of America (UMWA), a multiunion
bargaining group including both Local 6411 and
Local 1600, and the Bituminous Coal Operators
Association (BCOA), a multiemployer association of
soft coal producers of which Bethlehem is a member.
Merlo is an individual signatory to the agreement
and, as such, has agreed to be bound by its
provisions. This agreement provides a procedure for
the settlement of both the differences which may
arise as to the meaning and application of the
provisions of the agreement and the differences
arising with respect to matters not specifically
mentioned in the agreement.
Therefore, on the basis of the above-noted facts
and circumstances-and in accord with our recent
decisions in United Mine Workers of America, Local
Union 1979 (Consolidation Coal Company), 227
NLRB 815 (1977); and United Mine Workers of
America, Local Union 1368 (Bethlehem Mines Corpo-
ration), 227 NLRB 819 (1977)--we find that the
parties herein are bound to settle their jurisdictional
disputes through the grievance procedure of the 1974
agreement.
Accordingly, having found that a voluntary meth-
od exists for the resolution of this dispute,6 we shall
quash the notice of hearing issued herein. 7
ORDER
It is hereby ordered that the notice of hearing
issued in this proceeding be, and it hereby is,
quashed.
a Art. II. sec. (a), of the agreement provides:
The production of coal, including removal of overburden and coal
waste, preparation, processing and cleaning of coal and transportation
of coal (except by waterway or rail not owned by Employer), repair and
maintenance work normally performed at the mine site or at a central
shop of the Employer and maintenance of gob piles and mine roads,
and work customarily related to all of the above shall be performed by
classified Employees of the Employer covered by and in accordance
with the terms of this Agreement. Contracting, sub-contracting. leasing
and subleasing. and construction work, as defined herein. will be
conducted in accordance with the provisions of this Article
Nothing in this section will be construed to diminish the junsdic-
tion, express or implied, of the United Mine workers.
4 The Arbitration Review Board, established by the 1974 Coal Wage
Agreement to interpret the provisions thereof, functions as the final step in
the agreement's grievance procedure.
5 The relevant portions of which are attached hereto as an appendix.
e Member Murphy notes that this same agreed-upon method existed in
the above-cited cases. Consolidation Coal Company, and Bethlehem Mines
Corporation, the latter involving the same employer as the present dispute.
In the prior cases it was contended that the agreed-upon method did not
apply, whereas here the dispute has been submitted to the Arbitration
Review Board. While Member Murphy has heretofore adhered to the view
that where an agreed-upon method exists the parties must resort to that
procedure, she may deem it appropriate to reconsider her position in the
event it appears from a series of cases that an existing method is ineffective
or is not being used by the parties. (See, e.g., United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Indu.strv, etc
(Capitol Air Conditioning) 224 NLRB 985, fn. 6 (1976).)
7 Local 6411 filed a motion to stay proceedings pending arbitration
wherein it states that, along with Local 1600 and Merlo, it is "currently
prepanng to attempt to submit the underlying dispute" herein to the
arbitration procedures of the 1974 agreement, and requests that we sta)
these proceedings pending such arbitration. Thereafter, Bethlehem filed a
motion and letter in opposition thereto, wherein it contends that arbitration
of the instant dispute is inappropriate because an earlier decision of the
Arbitration Review Board, involving disputed work at the mine of another
employer, is dispositive of the issues herein. We hereby deny Local 641 I's
motion. For, in view of our finding, supra, that there is an agreed-upon
method for resolution of this dispute, we will not stay these proceedings. As
to Bethlehem's request that we find the aforementioned Arbitration Review
Board's decision to be dispositive of the instant matter, such contention is
more appropriately addressed to the arbitral forum.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
Article XXIII- SETTLEMENT OF DISPUTES
Section (a) Mine Committee
A committee consisting of at least three (3)
Employees shall be elected at each mine by the
Employees at such mine. Each member of the mine
committee shall be an Employee of the mine at
which he is a committee member, and shall be
eligible to serve as a committee member only so long
as he continues to be an Employee of said mine. The
duties of the mine committee shall be confined to the
adjustment of disputes arising out of this Agreement
that the mine management and the Employee or
Employees fail to adjust. The mine committee shall
have no other authority or exercise any other control
nor in any way interfere with the operation of the
mine; for violation of this section any and all
members of the committee may be removed from the
committee.
Section (b) Arbitration Review Board
I. Within 60 days following the effective date of this
Agreement, the United Mine Workers of America and the
Bituminous Coal Operators' Association will establish an
Arbitration Review Board composed of one representative
of the UMWA, one representative of the Employer, and a
chief umpire to be jointly selected by both parties. This 60-
day period may be extended by mutual agreement.
4. The presidents of the UMWA International Union
and the B.C.O.A. shall jointly establish a panel of impartial
arbitrators for each UMWA district. These panels may be
changed, augmented or supplemented by mutual consent
of the appointing parties. Arbitrators may be removed
from panel by either party upon 10 days advance written
notice.
Section (c) Grievance Procedure
Should differences arise between the Mine Workers and
the Employer as to meaning and application of the
provisions of this Agreement, or should differences arise
about matters not specifically mentioned in this Agree-
ment, or should any local trouble of any kind arise at the
mine, an earnest effort shall be made to settle such
differences at the earliest practicable time.
Disputes arising under this Agreement shall be resolved
as follows:
1. The Employee will make his complaint to his
immediate foreman who shall have the authority to settle
the matter. The foreman will notify the Employee of his
decision within 24 hours following the day when the
complaint is made.
2. If no agreement is reached between the Employee
and his foreman, the complaint shall be taken up within
seven (7) working days of the foreman's decision by the
mine committee and mine management. Where the
committee consists of more than three members, the
Employer shall have the right to meet with a maximum of
three (3) (to be chosen by the mine committee). The
committee and management will complete the standard
grievance form stating the Employee's grievance and the
response of management.
3. If no agreement is reached by the committee and
management within seven (7) working days after the
complaint is taken up by them, the grievance shall be
referred to a representative of the UMWA district,
designated by the Union, and a representative of the
Employer within seven (7) working days of the time the
grievance is referred to them. The representative of the
Union and the Employer shall review the facts and
pertinent contract provisions in an effort to reach agree-
ment. Unless both parties consent, no verbatim transcript
of testimony shall be taken. Following the meeting, should
they fail to settle the grievance, the representatives shall
prepare a concise, joint statement. In the joint statement
the Union and Employer will each set forth its views of the
facts and its position on the contractual issues. The joint
statement shall be signed by the representative of the
UMWA district and the representative of the Employer.
Neither the Union's representative nor the Employer's
shall be persons who participated in steps one or two of this
procedure.
4. In cases where the district representative and the
representative of the Employer fail to reach agreement, the
matter shall, within ten (10) calendar days after referral to
them, be referred to the appropriate panel arbitrator who
shall decide the case without delay. Cases shall be assigned
to panel arbitrators in rotation. Unless testimony has been
taken at step 3, at the earliest possible time, but no later
than fifteen (15) days after referral to him, the arbitrator
shall conduct a hearing in order to hear testimony, receive
evidence and consider arguments. In cases where a
transcript has been made at step 3, the arbitrator shall have
the discretion to conduct a supplementary hearing at or
near the mine site. In cases in which the parties have made
no transcript at step 3 and the joint statement indicates that
there is no question of fact involved in the grievance, the
arbitrator may decide the case without a transcript and
upon the basis of the joint statement of the parties, exhibits
and briefs. The arbitrator's decision shall be final except as
provided in paragraph 5 herein, and shall govern only the
dispute before him. Expenses and fees incident to the
service of an arbitrator shall be paid equally by the
Employer or Employers affected and by the UMWA
district affected.
5. Either party to an arbitration, upon receiving a final
award by a panel arbitrator, may petition the Arbitration
Review Board to appeal the decision of the panel
arbitrator. Such petition shall include a statement of the
grounds for the appeal, which shall consist of one or more
of the following:
(i) That the decision of the panel arbitrator is in
conflict with one or more decisions on the same issue of
contract interpretation by other panel arbitrators.
(ii) That the decision involves a question of contract
interpretation which has not previously been decided
by the Board, and which in the opinion of the Board
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LOCAL 1600, UNITED MINE WORKERS
involves the interpretation of a substantial contractual
issue.
(iii) That the decision is arbitrary and capricious, or
fraudulent, and therefore, must be set aside.
Upon receipt of such petition, the Arbitration Review
Board shall review the decision of the panel arbitrator to
determine whether grounds for appeal exist. If not, the
Board will so inform the parties. If so, the Board shall
review the decision of the panel arbitrator making
whatever changes are necessary to assure that the final
decision correctly resolves all contractual questions and
issues presented, and is consistent with prior decisions of
the Board. The Board's decision shall be made by majority
vote and it shall issue its decision within fifteen (15) days.
Following review, the Board shall countersign its decision
and transmit a copy to each party.
* *
Section (h) Finality of Decision or Settlement
Settlements reached at any step of the grievance
procedure shall be final and binding on both parties and
shall not be subject to further proceedings under this
Article except by mutual agreement. Settlements reached
at steps 2 and 3 shall be in writing and signed by
appropriate representatives of the Union and the Employ-
er.
Section (k) Circulation of Approved Decisions
Panel arbitrators shall be furnished promptly with copies
of all decisions entered by the Board. The chief umpire
through his staff shall prepare a looseleaf binder which
shall contain summaries of the Board's decision with
respect to contractual issues arising under the Agreement.
The binder shall be organized along the lines of the
Agreement and shall be indexed by subject matter and case
title. The binder shall be maintained by the chief umpire
through his staff on a current basis and copies of any pages
changed to reflect new decisions shall be provided to the
parties on a monthly basis.
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