Peabody Coal Co. v. N.L.R.B., s. 82-1220

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation725 F.2d 357
Docket Number82-1857 and 82-1980,Nos. 82-1220,s. 82-1220
Parties115 L.R.R.M. (BNA) 2412, 115 L.R.R.M. (BNA) 3085, 99 Lab.Cas. P 10,746 PEABODY COAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date10 February 1984

Harold I. Elbert (argued), Charles S. Elbert, Patrick M. Sanders, St. Louis, Mo., Paul C. Sunderland, Cincinnati, Ohio, Barbara A. Gumbel, Edwardsville, Ill., John Cox, Benton, Ill., for Peabody Coal Co.

Elliott Moore, Edward Dorsey, Deputy Associate General Counsel (argued), John C. Truesdale, Washington, D.C., for N.L.R.B.

Before KENNEDY and MARTIN, Circuit Judges, and BROWN, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

The Peabody Coal Company seeks review of, and the National Labor Relations Board cross-applies for enforcement of, the Board's February 4, 1982 and October 12, 1982 orders, 259 N.L.R.B. 183 and 265 N.L.R.B. 13, respectively, finding Peabody in violation of sections 8(a)(5), (3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Secs. 158(a)(5), (3) and (1). We grant enforcement in part, deny enforcement in part, and remand for further proceedings consistent with this opinion.

The representation election among the warehouse clerks.

Peabody, operator of the Will Scarlet Surface Mine, an open, above-ground coal mine in Stovefort, Illinois, was a signatory with the United Mine Workers to the National Bituminous Coal Wage Agreement of 1978. The Agreement, a collective bargaining contract negotiated by the Bituminous Coal Owners' Association and the United Mine Workers, was signed by the Company and other coal mine owners on an individual basis. The Agreement purported to cover all employees at the mine except those specifically excepted. Article 1A, Section (b), the exemptions clause, provided:

It is the intention of this Agreement to reserve to the Employers and except from this Agreement an adequate force of supervisory employees to effectively conduct the safe and efficient operation of the mines and at the same time, to provide against the abuse of such exemptions by excepting more such employees than are reasonably required for that purpose.

Coal inspectors and weigh bosses at mines where men are paid by the ton, watchmen, clerks, engineering and technical forces of the Employer, working at or from a district or local mine office, are exempt from this Agreement.

All other Employees working in or about the mine shall be included in this Agreement except essential mine foremen who, in the usual performance of their duties, may make examinations for gas as prescribed by law, and such other supervisors as are in charge of any class of labor inside or outside of the mines and who perform no production work.

The Union will not seek to organize or ask recognition for such excepted supervisory employees during the life of this contract.

(emphasis added). Section (a) of the same article, the work jurisdiction clause, provided:

The production of coal, including removal of overburden and coal waste, preparation, processing and cleaning 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 job 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, subcontracting, leasing and subleasing, and construction work, as defined herein, will be conducted in accordance with the provisions of the Article.

Nothing in this section will be construed to diminish the jurisdiction, express or implied, of the United Mine Workers.

In November, 1980, the United Mine Workers petitioned the Board for a representation election among the company's eight warehouse clerks. At a December 1 hearing, the parties stipulated that the eight employees comprised an appropriate bargaining unit. The company, however, opposed an election on the grounds that the language of sections (a) and (b) of Article 1A of the Agreement barred the union from representing or organizing the clerks. Specifically, it asserted that in agreeing to exempt warehouse clerks from the Agreement's coverage, the union was implicitly promising not to seek recognition from or to attempt the organization of those employees.

The Board's regional director disagreed. In a decision issued December 12, 1980, he ordered an election. On January 9, 1981 following the Board's denial of the company's request for review, the union was elected exclusive bargaining representative for the warehouse clerks. Certification came on January 19 and ten days later, the union made its first bargaining request. The company refused to bargain, taking the position unsuccessfully asserted at the earlier hearing that, by the terms of the Agreement, the union was without jurisdiction over the clerks. The union responded by filing unfair labor practice charges, alleging violations of sections 8(a)(5) 1 and (1) 2.

While the jurisdictional dispute was developing, the company and a number of its warehouse clerks were involved in a series of incidents which led to separate 8(a)(1) charges. The Board found that on December 12, 1980, Peabody's mine superintendent, Ron Menzie, told warehouse clerk Danny Gibbs that a union victory would jeopardize employee seniority and that if the possibility of a shut down in part of the mine came about, those warehouse clerks with low seniority could lose their jobs to the miners. Menzie had essentially the same conversation with Don Richardson, also a clerk, on December 21. After warning of the possible consequences of unionization, however, he went on to inquire whether Richardson had signed a union authorization card and to ask what it was that Richardson expected to gain from union membership. On January 7, 1981, Lori Wahls, a clerk, was told by Menzie that she would "probably never work at Peabody again" if, as he predicted, a union election led to her layoff.

Following the election, Menzie asked clerk Don Emmons whether Emmons had voted for "me" or "them." In a January 23, 1981 conversation with clerk Phyllis Elder, Menzie expressed his surprise that the clerks had elected the union. He, Menzie said, had been good to the clerks. He concluded by saying that he would lay off all the clerks, eliminate much of the paperwork, and have the remainder done by the miners or Peabody's St. Louis office. On February 15, Menzie spoke again with Gibbs. "You've lost your jobs to the union now," said Menzie. He would hire fourteen new employees, he said, putting the warehouse clerks "further down the line in ... seniority." Eight days later, Menzie called Gibbs and Elder into his office and, prefacing his remarks with the comment that several employees had asked how to resign from the union, told them that they could use a company typewriter to prepare an affidavit requesting that bargaining cease. He warned that unless five or more employees signed the affidavit, it would be impossible for them to get a company job outside the bargaining unit. Menzie then specifically identified George Brouillette, the lone vote against the union, as the only clerk eligible for a job outside the bargaining unit. He finished by stating that when negotiations with the union began, the clerks would get only what the company wished to give them.

In late February, Richardson, Brouillette, and Jerry Robinson were contacted by Menzie and told that they could resign from the union by individually or collectively informing the union by letter. Similar instructions were offered to Emmons. In the last of these incidents, Menzie approached Wahls on March 2 and volunteered the information that three or four clerks had approached him seeking instructions as to how to withdraw from the union. Wahls, he suggested, could type an affidavit to that effect using a company typewriter.

Following a hearing on May 14, 1981, the administrative law judge found Peabody guilty of violating both sections 8(a)(5) and (1). He ordered the company to cease and desist from such practices, to bargain with the UMW for one full year after the date bargaining began, and to post the usual notice. The decision of the judge was adopted by the Board with minor changes on February 4, 1982. 259 N.L.R.B. 183.

We deal first with the company's contention that the United Mine Workers were improperly certified as bargaining representative for the warehouse clerks and that, therefore, the company was under no obligation to bargain. The company's claim turns, in essence, upon the significance it accords the exemption clause in the Agreement. Article 1A, section (b), supra. It asks this court to read the exemption of the clerks from the Agreement's coverage as an implicit promise by the union not to assert jurisdiction. This same argument was recently made by Peabody before the Ninth Circuit. The company lost. Peabody Coal Co. v. NLRB, 709 F.2d 567 (9th Cir.1983). It fares no better here.

It is well settled that a union will not be found to have relinquished its jurisdiction over a particular class of employees absent an express promise on its part not to seek to represent or to organize that class.

[O]nly where the contract itself contains an express promise on the part of the union to refrain from seeking representation of the employees in question or to refrain from accepting them into membership [will the Board deny certification]; such a promise will not be implied from a mere unit exclusion, nor will the rule be applied on the basis of an alleged understanding of the parties during contract negotiations.

Cessna Aircraft Co., 123 N.L.R.B. 855, 857 (1959). See also Briggs Indiana Corp., 63 N.L.R.B. 1270, 1271-73 (1945). Here, the Board effectively concluded that the Agreement's...

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