INTERNATIONAL U., UMW OF A. v. NATIONAL LAB. REL. BD.

• Decision Date: 12 June 1958
• Docket Number: No. 13974.,13974.
• Citation: 257 F.2d 211
• Parties: INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

257 F.2d 211 (1958)

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 13974.

United States Court of Appeals District of Columbia Circuit.

Argued April 11, 1958.

Decided June 12, 1958.

Mr. M. E. Boiarsky, Charleston, W. Va., with whom Mr. Willard P. Owens, Washington, D. C., was on the brief for petitioners.

Miss Fannie M. Boyls, Atty., National Labor Relations Board, with whom Messrs. Thomas J. McDermott, Associate Gen. Counsel, National Labor Relations Board, and Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, were on the brief, for respondent. Mr. Stephen Leonard, Associate Gen. Counsel, National Labor Relations Board, at the time the record was filed, also entered an appearance for respondent.

Before FAHY and BURGER, Circuit Judges and MADDEN, Judge, United States Court of Claims.^*

MADDEN, Judge.

The petitioners are the International Union, United Mine Workers of America, and District 17 and Local Union No. 2935 of the International Union. On April 12, 1957 the National Labor Relations Board issued its decision and order against all three of these unions. The unions have petitioned this court to review and set aside the Board's order. The Board has filed a request for the enforcement of its order. These proceedings are authorized by sections 10(e) and 10(f) of the Labor Management Relations Act 1947, 29 U.S. C.A. 160(e) and 160(f).

The Labor Board's decision was that the unions had violated section 8(b) (3) of the Labor Management Relations Act, 29 U.S.C.A. § 158(b) (3), known also as the Taft-Hartley Act, and hereinafter generally referred to as "the Act". Section 8(b) (3) makes it an unfair labor practice for a union which is the exclusive representative of employees to refuse to bargain collectively with their employer.

The events giving rise to the instant controversy occurred in the early months of 1955. There was in effect at that time a contract known as the National Bituminous Coal Wage Agreement of 1950, as amended in 1952, between the International Union and an association of operators of coal mines, of which association the Boone County Coal Corporation was a member. Boone's mines were in West Virginia. At the mine involved in the instant proceeding it employed some 275 employees. Local 2935, one of the petitioners herein, included only these Boone employees. Boone was a member of the Kanawha Coal Operators Association, a group of West Virginia Coal Operators, one of the purposes of which was to deal with District 17, one of the petitioners herein, which was the International Union's West Virginia subdivision.

At the Boone mine, before the occurrences of January and February 1955, there was a disagreement between management and employees as to how seniority was to be applied to the filling of jobs which became available. There were about 40 laid-off employees who had seniority rights. In former years, when new machines requiring different skills had been installed, it had been the company's practice and policy to upgrade its employees and train them in the operation of the new equipment, rather than to hire new employees from the outside.

A new assistant mine superintendent came to the mine in October 1954. Apparently at his instance the mine management took the position that it was not running a training school and that it would not consider an employee on the working force or the idle panel as eligible for a job vacancy unless that employee could take over immediately, without additional training, the operation of the new equipment. By ad hoc arrangements with the employee's mine committee the company was allowed to hire men from the idle panel, without regard to seniority, on the ground that they were needed for particular jobs, but then the company would transfer them to other jobs for which senior employees on the idle panel were qualified. The men got the impression that the company was circumventing the seniority system in order to discriminate against older employees and negro employees.

In December 1954 the company was about to acquire two additional 11 BU Joy loading machines and the assistant superintendent let it be known that he intended to hire operators for these machines from the outside. There were employees who were experienced in operating loading machines, but not in operating this particular type of machine. The mine committee protested, urging that the new jobs could be filled by upgrading presently employed persons and then filling their places from the idle panel, as had been the company's practice and policy in past years. The company answered that the seniority article of the contract made no provision for such a step-up arrangement and that what the mine committee was proposing was an unwarranted infringement upon the rights of management.

After four meetings at the local level at which the problem was discussed, the company consulted the Kanawha Coal Operators Association, and was advised to consult District 17 before it acted. On January 20, 1955, Kennedy, the Executive Secretary of the Association telephoned to Farley, District 17's chief field representative, who said he would look into the dispute and let Kennedy hear from him. He had not done so by January 27. The company in the meantime hired two outside operators for the new loading machines. One of these new operators, John Libatore, reported for work on January 27. The men, including Bias, the president of Local 2935 and White, a member of the mine committee said that the men would not work if Libatore was put to work on the new machine. Libatore was put to work. The men went home. The strike continued until it was settled on February 24. The men returned to work on February 28.

When the stoppage occurred on January 27, Mitchell, the assistant mine superintendent, telephoned Kennedy, and Kennedy telephoned Farley. There was an angry conversation. Out of the conflicting testimony of Kennedy and Farley it may be gathered that Farley took the position that the men were right in their complaints about company conduct, and refused to ask them to return to work. On February 2, the company sent telegrams to the presidents of the International, the District and the Local, requesting that the men be ordered to return to work and that the cases be processed under the settlement of disputes clause of the joint wage agreement. That agreement provided for conferences at various levels leading ultimately, if necessary, to arbitration by an umpire. The International answered suggesting that District President Blizzard was handling the dispute and that the company should contact him.

Neither the company nor the unions attempted to set up a meeting under the grievance procedure of the contract until February 10. On that date District President Blizzard visited the mine and arranged for a meeting between the mine committee and the management. There was such a meeting that day and another one the next day. There was misunderstanding about getting representatives of District 17 and the Kanawha Association to the meetings, and a further meeting was not held until February 24, on which date, at the request of District 17, District representatives met with Kanawha Association representatives, with company and Local 2935 representatives present. The meeting lasted five hours. Farley proposed that the company be permitted to retain the two outside operators who had been hired, but that these two should train other employees in the operation of the new equipment; that the company undertake to follow in the future the practice it had pursued in earlier years of training employees on its working force in the operation of new equipment instead of going to the outside for operators. At this point the company's General Manager Greenwald left the room with Kennedy of the Kanawha Association, and, after consultation, returned and made a statement. He said that in the past the company had made it a practice whenever possible to train employees in the use of new equipment and also to upgrade qualified men to higher rated positions. He said that it was the company's intent to follow that policy in the future. With specific reference to the new loading machines, he said that the company planned to put three such machines in operation, requiring a total of six operators, and that it was his intention to obtain the additional operators from inside the mine. It was then agreed that an employee who had been discharged at the beginning of the strike would be reinstated, and that when the Local had approved the settlement, the men would return to work. The settlement was approved by the Local and work was resumed on Monday, February 28.

The foregoing recital shows that a dispute arose between the company and the employees, that negotiations were had, largely at the instance of the representatives of the employees, that the negotiations resulted in a settlement of the dispute. Stated thus nakedly, this would look like collective bargaining at its best. Yet the company filed charges accusing the unions of refusing to bargain collectively, the Board issued a complaint pursuant to the charges, and issued an order directing the unions to cease and desist from refusing to bargain collectively.

The explanation for the apparent paradox is that the Board was of the opinion that the unions committed a breach of contract when the employees struck on January 27, 1955. Assuming that they did, that is not the end of the inquiry, because a breach of an employer-union contract is not, per se, an unfair labor practice. The legislative history of the Taft-Hartley Act shows that. As the bill was originally passed in the Senate, it would have made it an unfair labor practice "to violate the terms of a collective bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration."¹ But this proposal was rejected in the...