Tennessee Products & Chemical Corporation v. NLRB

• Citation: 423 F.2d 169
• Decision Date: 05 March 1970
• Docket Number: 18463.,No. 18357,18357
• Parties: TENNESSEE PRODUCTS & CHEMICAL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BASHAM COAL COMPANY et al., Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

423 F.2d 169 (1970)

TENNESSEE PRODUCTS & CHEMICAL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BASHAM COAL COMPANY et al., Respondents.

Nos. 18357, 18463.

United States Court of Appeals, Sixth Circuit.

March 5, 1970.

George A. Burnstein, Philadelphia, Pa., Joseph L. Halberstein, Marion, Ohio, on brief; Kleinard, Bell & Brecker, Philadelphia, Pa., Halberstein & Mitchell, Marion, Ohio, of counsel, for petitioner Tennessee Products & Chemical Corporation.

William M. Ables, Jr., South Pittsburg, Tenn., W. D. Spears, Spears, Moore, Rebman & Williams, Chattanooga, Tenn., on brief, for respondents, except Cardell Coal Co. and Tennessee Products Co.

Vivian Asplund, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., Attys., N. L. R. B., Washington, D. C., on brief, for National Labor Relations Board.

John B. Rayson, Knoxville, Tenn., Edward L. Carey, Willard P. Owens, Washington, D. C., E. H. Rayson, Knoxville, Tenn., on brief, for Intervenor United Mine Workers of America.

Before O'SULLIVAN, EDWARDS and PECK, Circuit Judges.

O'SULLIVAN, Circuit Judge.

In No. 18,357, Tennessee Products & Chemical Corporation seeks review, and in No. 18,463 the National Labor Relations Board seeks enforcement of, a decision of the National Labor Relations Board whereby petitioner, Tennessee Products and respondents Basham Coal Company, et al., were found guilty of violating Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (5), by refusing to bargain with the United Mine Workers of America through the agency of a multi-employer unit constructed by order of the NLRB. In addition, respondents H. Willis Flynn, d/b/a Poplar Coal Company (Poplar), and Sycamore Coal Company (Sycamore), were found guilty of violating Section 8(a) (2) of the Act, 29 U.S.C. § 158(a) (2), by entering into contracts with the Southern Labor Union which had not been certified as the bargaining agent of their employees. The opinion and order of the Board is No. 12 in Volume 167 NLRB.

We deny enforcement of the Board's order.

Alleged violations of Sections 8(a) (1) and (5).

I.

Recital of the facts and the prior proceedings is necessary because of the unusual nature of this case. It grows out of the labor strife that has so long beset southeastern Tennessee coal lands. Prior to 1962, Tennessee Products and Chemical Corporation (Tennessee Products) and Tennessee Consolidated Coal Company (Tennessee Consolidated) were the dominant interests in the area here involved; both had actively operated coal mines and leased portions of coal lands controlled by them to independent operators.

Tennessee Products and Tennessee Consolidated, with other mine operators in the area, had, prior to 1962, bargained with the United Mine Workers through an organization known as the Southern Tennessee Coal Producers Association. The contract negotiated by this association in 1958 expired in October, 1962. In September of 1962, various operators in the area formed the Sewanee Coal Operators Association, Inc. (Sewanee). Sewanee's charter stated that it was incorporated for a purpose, among others, of acting as the exclusive bargaining agent for its members. Neither Tennessee Products, Grundy Mining Company, nor Tennessee Consolidated became formal members of Sewanee. Instead they made application for membership subject to the condition that Sewanee not negotiate for them unless and until the UMW had been duly certified as bargaining agent for their employees.

Negotiations between Sewanee and the UMW commenced in September, 1962. Between September and December, 1962, there were four bargaining sessions between UMW and the Sewanee group. We draw a justified inference that the only contract that the United Mine Workers could consider was the National Bituminous Wage Agreement of 1950, as amended by the Price Wage Clause of 1958. This was the contract that had been made between the Bituminous Coal Operators Association, an association of the operators of the big mechanized mines in Tennessee, and the United Mine Workers. This contract was the subject of several suits against the Mine Workers charging violation of the Sherman Act. See Ramsey v. United Mine Workers, 265 F.Supp. 388 (D.C.E.D.Tenn. 1967) affirmed 416 F.2d 655 (6th Cir. 1969); and Tenn. Consolidated Coal Co. et al. v. United Mine Workers, 416 F.2d 1192 (6th Cir. 1969).

The negotiations between the Sewanee group and the UMW were fruitless; and on December 26, 1962, the Mine Workers called a strike throughout the involved coal fields. The mines of all the respondents, as well as those of Tennessee Products, were shut down. Most of these mine enterprises have gone out of business.

II.

In February, 1963, following the start of the strike, United Mine Workers filed a petition with the Regional Director to have that union certified as the bargaining representative of the employees of all the members of Sewanee Coal Operators Association as well as the employees of Tennessee Products and Grundy Mining Company, all of which employers to be required to bargain with the UMW as a single multi-employer unit. Success in this endeavor would give the UMW exclusive bargaining rights for the employees of some forty-three different mine operators, regardless of the wishes of a majority of the employees of any single enterprise. On May 23 and June 6, 1963, the Southern Labor Union (SLU) filed with the Board petitions seeking elections in separate and single-employer units consisting of the employees of Grundy Mining Company, Stephenson Brothers Coal Company, Inc., and M. A. Payne, Inc. Grundy Mining was the largest single employer involved. The Sewanee Association requested that bargaining agents for employees of each of its members be determined by election in individual employer units. Grundy Mining Company requested that it be considered a separate unit for any certification election. It is clear, therefore, that at the time the Board first considered the propriety of constructing a multi-employer unit, it was fully aware that every employer involved was opposed to it. It knew also that a union competing with the UMW was asserting that it represented a majority of the employees of three separate employers. The Board's own decision asserts its awareness of these facts.

The Board's decision also discloses its recognition that law and its own policy required that intent by the involved employers to form such a multi-employer unit was essential to its creation. The Board said:

"The test is whether the employer parties have manifested an intent to be bound by group rather than individual action." (Emphasis supplied.)

The Board, on September 30, 1963, ordered that an election be held among the employees of all of the mine operators here involved, tied together into a single multi-employer unit. The Board's asserted justification for this resides in the fact that in earlier years there had been some multi-employer bargaining and the shortlived effort by mine operators to deal with the UMW through the Sewanee Association.

It is the Board's position that no new intent could be arrived at after the strike had commenced. Thus, the Board reasoned:

"The bargaining history also reflects that the intent on the part of the companies to bargain on a multi-employer basis is a continuing one." (emphasis added)

This conclusion was expressed notwithstanding the Board's knowledge that, following the start of the strike and the UMW's intransigent insistence that only its then standard contract would be accepted, all of the operators involved repudiated such multi-employer bargaining.

Pursuant to the Board's order of September 30, an election was held on October 15, 1963. Canvass of the voting disclosed that 579 ballots were cast, of which 108 were for UMW, 50 for the Southern Labor Union, and 421 ballots were challenged. Prior to the election there were only 280 employees of employers in the Sewanee Association listed as eligible to vote and Grundy had listed 155 of its employees as eligible to vote. It is clear that the number of votes cast substantially exceeded the total listed as eligible to do so. While the record is silent on the matter it may be that some, or all, of the mine operators who had gone out of business after the December 26, 1962, strike did not send in eligibility lists, but their former employees voted nevertheless.

Prior to the Board's decision of September 30, and the election of October 15, the Grundy Mining Company which had been the biggest operator prior to the strike, attempted to resume operations employing members of the Southern Labor Union. These employees attempted to organize a local union made up of members of the Southern Labor Union working for Grundy. Such activities brought on spectacular violence and terrorism by members of the UMW. This violence was described in, and was the subject of, two decisions of the Board finding the UMW guilty of such conduct. See United Mine Workers Local No. 7083 (Grundy Mining Company) and Southern Labor Union, 146 NLRB 176 (1964), and United Mine Workers of America, Local No. 7244 (Grundy Mining Company) and Southern Labor Union, 146 NLRB 244 (1954).

After the report of the election, Grundy and SLU filed timely objections with the Regional Director charging that the conduct of the Mine Workers had made a fair election impossible. The Regional Director, sustaining objections in such regard, found that the previous violence of the UMW and the conditions that surrounded the voting area on the day of the election prevented a free choice by the voters. He said:

"However, in the opinion of the undersigned, the pictorial evidence submitted during the investigation depicting the crowd massed at the entrance to the polling place and the

...