Tennessee Products & Chemical Corporation v. National Labor Relations Board, National Labor Relations Board v. Basham Coal Company ( 1970 )

EDWARDS, Circuit Judge,

dissenting.

In two consolidated cases Tennessee Products & Chemical Corporation seeks review and the National Labor Relations Board seeks enforcement of orders of the Board (167 N.L.R.B. No. 12) requiring certain Tennessee mine operators to engage in collective bargaining with the United Mine Workers.

Although this record contains both disputes of fact and bitter disputes of inferences from fact, a broad outline of undisputed facts may be stated:

In September of 1962, 41 coal companies in southeastern Tennessee formed the Sewanee Coal Operators Association for the purpose of bargaining with the United Mine Workers. Many of these companies had had a previous history of collective bargaining with the UMW.

The Sewanee Coal Operators Association and the UMW met in four collective bargaining sessions in late 1962. No agreement was reached, and in late December 1962 the UMW went out on strike. This record indicates that the strike is still continuing.

After the strike was in progress, the union petitioned for an election, and on October 15, 1963; an election was conducted for the employees of the 41 coal companies which the NLRB had found to be the appropriate bargaining unit representing all of the Sewanee Association operators. The majority of the ballots cast were challenged. The opérators also challenged the election because of pre-election violence. They also challenged the appropriateness of the bargaining unit because subsequent to the election, in June of 1964, the Sewanee Coal Operators Association was dissolved by resolution .of its board of directors and the surrender of its Tennessee State Charter.

After hearing, these challenges were decided by the Board which ruled that the multiemployer unit had not been destroyed and continued to be appropriate, that the election had not been invalidated by violence, and that the UMW had won the election. On June 7, 1965, the Board certified the UMW as the bargaining representative for all production and maintenance employees of the Sewanee operators described as follows:

“[Those] mining operators who were formerly members of the Sewanee Coal Operators Association, including those not now operating but who resume operating old mines either before or after the conclusion of the strike, and including also those individuals who had sole or controlling interest in a corporation which was a member of Sewanee Coal Operators Association who form another corporation and operate a new or different mine in the geographic area here involved.”

The UMW then requested bargaining. On refusal, an unfair labor practice complaint was filed. Meantime, a Sewanee operator named Flynn had formed the Poplar and Sycamore Coal Companies, and on July 16, 1964, had signed a contract with the Southern Labor Union (SLU). A hearing was conducted before a Trial Examiner who entered findings and a recommended order.

On August 22,1967, the NLRB adopted the Trial Examiner’s findings and ordered that the past members of now dissolved Sewanee and their successors cease their violations of Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1) and (5) (1964), and bargain collectively with the UMW for a reasonable period of not less than 12 months. The Board also found Sycamore and Poplar were included in the employers’ bargaining unit and ordered them to withhold recognition of SLU unless and until the Board certified that union. It found that the maintenance of the SLU contract was a violation of § 8(a) (2) and 8(a) (1) of the Act.

These proceedings produced the petition to review in the Tennessee Products case and an enforcement petition in the Basham case which are currently before us.

Five issues appear to require discussion:

1) Is the multiemployer bargaining unit found by the Board legally appropriate and valid?

2) Was there such a record of preelection violence as to require setting aside the election and holding a new one?

3) Should the bargaining order be set aside because some of the companies have gone out of business?

4) Should the Board’s order be set aside because of claimed conflicts of interest between the UMW and the employees it seeks to represent, or because of asserted UMW violations of the antitrust statutes?

5) Does Section 10(b) of the NLRA, 29 U.S.C. § 160(b) (1964), bar some or all of the unfair labor practice findings of the Board ?

The Multiemployer Bargaining Unit

As noted, the record is undisputed that the coal operators who now protest the multiemployer bargaining unit originally founded the Sewanee Coal Operators Association voluntarily for the express purpose of bargaining with the UMW. Further, the acts relied upon to show intent to dissolve Sewanee did not take place until after failure of negotiations, the calling of the UMW strike, and the holding of the representation election.

Also of importance in relation to the appropriateness of the Board-designated bargaining unit is the fact that the 41 operators are by no means a disparate and unrelated group. On the contrary, the record shows that all of the operators had been engaged in mining in three counties in southeastern Tennessee. Two of the Sewanee companies, Tennessee Products and Tennessee Consolidated Coal Company, owned or controlled virtually all of the coal-bearing land in those three counties. Practically all of the coal mining in the three counties concerned was done under lease arrangements with either Tennessee Products or Tennessee Consolidated.

Nonetheless, the operators protest the appropriateness of the bargaining unit, claiming that the prior history of collective bargaining showed individual collective bargaining contracts, and that the record demonstrates no employer intent to be bound by group action. As far as Grundy and Consolidated are concerned, they assert that each of them joined the Sewanee Association only on the condition of an NLRB certification of a union among their individual employees units.¹

As to these contentions, the Trial Examiner and the Board found as follows:

“We consider first Sewanee’s contention that there is no controlling history of bargaining on a multiemployer basis. To support that contention, Sewanee relies primarily on the practice of the employers to sign separate, though identical, agreements with the Union. But that circumstance is not necessarily decisive in determining whether an appropriate multiemployer unit has been established. Association-wide units may be appropriate even though separate contracts are signed,4 or multiemployer bargaining has been conducted on the basis of an informal association.5 The test is whether the employer parties have manifested an intent to be bound by group rather than individual action.6 In the circumstances here, we believe that test is met. In the past the same employers who now constitute the membership of Sewanee had agreed to be bound by the identical agreement that Consolidated and Products had negotiated through Southern Tennessee Coal Producers Association. The bargaining history also reflects that the intent on the part of the companies to bargain on a multiemployer basis is a continuing one. This is clearly evidenced by the fact that in 1962 the employers who had theretofore engaged in informal joint bargaining banded themselves into a formal association whose charter reveals the intention of its members to adhere to multiemployer bargaining. And it is confirmed by the fact that Sewanee on behalf of its members actually entered into negotiations with the UMW on a multiemployer basis. In view of this background manifesting the intention of Sewanee’s members to bargain jointly, we find in agreement with the UMW, which by its petition as well as by its prior course of bargaining has manifested a similar intent, that an association-wide unit is appropriate at this time.

“We consider next the issue whether Grundy’s employees should be included in the association unit or should constitute a separate unit. Grundy argues that it should not be included in the unit with the other members of Sewanee because at the time of its application for admission into that association it withheld from Sewanee final authority to bargain on its behalf.

“As appears from the minutes of a meeting of Sewanee held in October 1962, Grundy, Consolidated, and Products at that time requested permission to become members of Sewanee, but on the condition ‘ * * * that the association would not negotiate for Tennessee Consolidated Coal Company, Grundy Mining Company, and Tennessee Products and Chemical Corporation until the United Mine Workers had been duly certified by a Board election.’

“At the hearing herein, both a UMW representative and an official of the Grundy Mining Company testified that at the first bargaining session between Sewanee and UMW a representative of Grundy stated that Grundy was not to be considered bound by the negotiations until ‘a union’ was certified.

“The critical question here, therefore, concerns the effect to be given to Grundy’s conditional application for membership in Sewanee. At first glance, Grundy’s action might suggest that it did not want to be bound by group bargaining. But the very fact that it sought admission in a multiemployer association indicates its interest in participating in collective bargaining on a multiemployer basis. Moreover, Grundy did not indicate either to other members of Sewanee or to UMW, at any time after requesting membership, or after bargaining commenced, that it no longer wished to become a member, or that it desired to pursue an individual course of bargaining. We also note that included in the contract proposed to UMW by Sewanee was a mine classification styled ‘A,’ describing a relatively large, mechanized mine such as only Grundy operates. In these circumstances, we construe Grundy’s action as manifesting an intention to join Sewanee and to be represented by it subject only to the condition of union certification on an association-wide basis. That the condition contemplated a certification based on an election in an association-wide unit also finds support in the minutes of the Sewanee meeting, adverted to above, where Products, Grundy, and Consolidated are listed in the conjunctive as imposing the condition. Moreover, as Consolidated has no employees of its own, a union would have to be certified on the basis of an election in an association-wide unit, including the three named companies, for Products, Grundy and Consolidated to become unconditional members of Sewanee. (Emphasis in original.)

“Thus, only a Board election conducted in an association-wide unit will determine whether Grundy will be bound by group bargaining. If a union is certified as the representative of all employees in the unit, Grundy will thereby become a member to the same extent as the other members of Sewanee. On the other hand, if no union is certified, Grundy’s application for membership will lapse by reason of the failure of the condition. Therefore, since the question concerning Grundy’s membership in Sewanee can only be settled by an election in an association-wide unit, we shall include Grundy in the unit found appropriate herein.

“Accordingly, we find that a unit comprising the employees of all members of Sewanee Coal Operators’ Association, Inc., including Grundy Mining Company, is appropriate. We further find that the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of employer members of Sewanee Coal Operators’ Association, Inc., excluding office clerical employees, professional employees, technical employees, guards, owner-operators, mine foremen, and other supervisors as defined in the Act.

“4. Belleville Employing Printers, 122 NLRB 350.

“5- Harbison-Walker Refractories Company, 137 NLRB 1686.

“6. The A. B. Hirshfield Press, Inc., 140 NLRB No. 35.”

As indicated, there was a great deal of evidence — much of it undisputed — to support these findings.

Further, national labor policy as expressed by law places the responsibility for determining the appropriate bargaining unit upon the Board. 29 U.S.C. § 159(b) (1964).

While the decision of the Board on this subject is not beyond judicial review, the Supreme Court has made it clear that an appropriate bargaining unit determination should not be disturbed unless it is arbitrary. On this subject the Supreme Court said:

“The issue as to what unit is appropriate for bargaining is one for which no absolute rule of law is laid down by statute, and none should be by decision. It involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed. While we do not say that a determination of a unit of representation cannot be so unreasonable and arbitrary as to exceed the Board’s power, we are clear that the decision in question does not do so. That settled, our power is at an end.” Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491-492, 67 S.Ct. 789, 91 L.Ed. 1040 (1947).

The designation of multiemployer units where not arbitrary is within the discretion of the NLRB. NLRB v. Checker Cab Co., 367 F.2d 692 (6th Cir. 1966), cert. denied, 385 U.S. 1008, 67 S.Ct. 715, 17 L.Ed.2d 546 (1967); NLRB v. Teamsters Local 449, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957).

In this last case the Supreme Court said:

“[T]he compelling conclusion is that Congress intended ‘that the Board should continue its established administrative practice of certifying multiemployer units, and intended to leave to the Board’s specialized judgment the inevitable questions concerning multiemployer bargaining bound to arise in the future.’

******

“The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” (Footnotes omitted.) NLRB v. Teamsters Local 449, supra 353 U.S. at 96, 77 S.Ct. at 648.

Clearly in our instant case the coal operators voluntarily formed a multiemployer association (Sewanee) for purposes of collective bargaining with the UMW. The fact that an agreement was not reached, that a. strike was called, and that the operators then sought to dissolve Sewanee did not serve to destroy the appropriateness of Sewanee as a bargaining unit. NLRB v. Southwestern Colorado Contractors Ass’n, 379 F.2d 360 (10th Cir. 1967); Universal Insulation Corp. v. NLRB, 361 F.2d 406 (6th Cir. 1966); NLRB v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967).

In the Universal Insulation case, this Circuit said:

“Universal contends that it is not bound by the new contract because of its withdrawal from the Association. However, multiemployer bargaining is ‘ * * * a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining.’ National Labor Relations Board v. Truck Drivers Local Union No. 449, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), and it follows that such bargaining cannot be effective unless an employer who has designated an employees’ association as its bargaining representative is bound by the terms of the negotiated contract. N. L. R. B. v. Jeffries Banknote Company, 281 F.2d 893 (9th Cir. 1960). While it is recognized that membership in a multiemployer unit is wholly voluntary and that an employer is free to withdraw from it, the employer must clearly evince at an appropriate time its intention to do so. N. L. R. B. v. Sklar, 316 F.2d 145 (6th Cir. 1963) and the Board has ruled that withdrawal from a multiemployer unit is untimely absent union consent once negotiations on a new contract have started. The Kroger Company, 148 N.L.R.B. 569 (1964); Ice Cream Frozen Custard Employees, 145 N.L.R.B. 865 (1964); C & M Construction Company, 147 N.L.R.B. 843 (1964); Walker Electric Company, 142 N.L.R.B. 1214 (1963). This rule has recently been followed by the Second Circuit in N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245 (March, 1966), and under the facts of this case, it is concluded that it should be followed here.” Universal Insulation Corp., supra 361 F.2d at 408.

These views have been recently reiterated by this court in a different factual context in Detroit Newspaper Publishers Ass’n v. NLRB, 372 F.2d 569 (6th Cir. 1967). On this record I cannot find arbitrariness in the Board designation of the multiemployer bargaining unit in this case.

Pre-election Violence

Respondents also assert that the election should be set aside because it was permeated with an aura of violence. The Board held, and I believe, on substantial evidence on the whole record, that since there was no violence for the five months preceding election and no showing that the union was involved in any coercive conduct within that period, the violence was too remote to have a probable effect on the election. NLRB v. Bar-Brook Mfg. Co., 220 F.2d 832 (5th Cir. 1955); Southdown Sugar, Inc., 108 N.L.R.B. 114 (1954).

The Board itself dealt with this issue at some length in its opinion:

“UMW excepted to the Regional Director’s recommendations to sustain the portions of the objections relating to pre-election violence and to electioneering and crowding of people at the polls.

“The alleged pre-election violence related to two incidents which occurred in April and May 1963, more than 5 months before the election. Each incident was the subject of separate charges, which resulted in findings of Section 8(b) (1) (A) coercion.4 As found by the Trial Examiner in those two cases, on April 24, 1963, UMW, Local 7244 and its supporters engaged in mob threats and violence against employees of Grundy to prevent them from meeting to organize and elect officers for a Grundy Local of SLU; and on May 7, 1963, UMW, Local 7083 and its supporters engaged in mob threats and violence to prevent Grundy strike replacements from going to work at the Grundy minesite.

“These two incidents occurred in the context of an economic strike called by UMW against Grundy commencing December 26, 1962; UMW’s petition herein, filed February 25, 1963, for a multiemployer unit of Sewanee members’ employees’ including Grundy’s; and UMW’s charges of unlawful assistance by Grundy to an independent union, which charges, under Board practice, blocked the processing of UMW’s representation petition. On May 20, 1963, a settlement agreement with respect to UMW’s charges of Section 8(a) (2) assistance was approved by the Regional Director, and on May 23, 1963, SLU filed its petition herein seeking a separate unit of Grundy employees. The Board found a multiemployer unit, including Grundy, to be appropriate, in the event a majority of employees in such unit voted for UMW or SLU, and, as above indicated, the election was conducted on October 15, 1963.

“Unlike the Regional Director, we conclude that in the circumstances above outlined, UMW’s strike misconduct, found violative of the Act, could have no substantial impact on voter free choice in the election. In view of the lapse of more than 5 months from the occurrence of the strike violence in question to the holding of the election, and the absence of any showing that in this interval of time any other coercive conduct was directed at employees in the unit, we find that the incidents relied on in the objections were unrelated to the election and too remote to have a probable effect upon the election.5

“As to those portions of the objections relating to electioneering and crowding at the polls, the Regional Director found that a large number of persons including strikers, nonstrikers, replacements and others congregated on the sidewalk and street immediately outside the polling place before and during the polling period. The election was conducted in a vacant store on courthouse square at Jasper, Tennessee,6 on a day the Criminal Court was in session. Four Board agents conducting the election were assisted by two U. S. Marshals. The crowd was estimated to number from 200 to 2000 at various times, with a line of voters four to six deep extending from the entrance of the polling place down the sidewalk for a block or more. While the polls were opened, several unidentified persons circulated about the voting line outside the polling place wearing placards reading ‘VOTE FOR UNITED MINE WORKERS AND BE ABLE TO GET A PENSION.’ The Board Agent did not specify any ‘no electioneering area’ but did caution representatives not to enter the polling place during the election. The Regional Director based his finding concerning crowding upon pictorial evidence submitted during investigation.7 However, he does not point to any specific incidents of disorderliness or coercive conduct but merely couples the evidence of electioneering and crowding immediately outside the polling place with the much earlier incidents of strike violence which we have found to be too remote to have an effect upon the election.

“We conclude that, under the facts here, the presence of a crowd or a massing of voters at the entrance to the polling place and the placard electioneering by unidentified persons on behalf of UMW in the area outside the polls, standing alone, did not impair the exercise of free choice in the election.

“4. United Mines Workers of America, Local No. 7083, 146 NLRB No. 20; and United Mine Workers of America, Local No. 7244, 146 NLRB No. 29, In each ease the Trial Examiner's Decision, later adopted by the Board, had issued prior to the issuance of the Regional Director’s report herein.

“5. See, e. g. Southdown Sugar, Inc., 108 NLRB 114, Krambo Food Stores, Inc., 101 NLRB 742, 743; The LaClede Gas Light Co., 80 NLRB 839, 841.

“6 Jasper was selected as the site of the election in part because it had not been the scene of any pre-election violence and adequate law enforcement was available. The site was suggested by attorneys for Sewanee and Grundy and approved by the Regional Director.

“7. In its exceptions, UMW asserts that it knows of only four pictures taken of the election and attached those pictures to its brief. The pictures appeared in area newspapers, and the accompanying stories described the crowd as orderly and the election as without disorder. In addition, UMW attached affidavits from law enforcement officers, merchants, county officials and other citizens of Jasper who observed the election and found it proper and orderly.”

At times in National Labor Relations Board cases suggestions are advanced that the Board in performing its duties listens with a more attentive ear to witnesses for complaining labor unions than to witnesses presented by employers, and that its decisions as a consequence are biased. It is instructive to read the opinions of the Trial Examiner and the Board in the two unfair labor practice complaints against the United Mine Workers involving alleged violent and coercive conduct by it and its members in this dispute. UMW, Local 7083 [Grundy Mining Co.] and Southern Labor Union, 146 N.L.R.B. 176 (1964); UMW, Local 7244 [Grundy Mining Co.] and Southern Labor Union, 146 N.L.R.B. 244 (1964).

On the records in each of these two cases, where the testimony of the opposing parties was in sharp conflict, the Board found the facts against respondent UMW and in each instance the Trial Examiner recommended and the Board entered a series of cease and desist orders. These orders placed the power of the federal government squarely against continuation of violent or coercive conduct. Apparently these orders had some effect, even though they had not yet become final by the date of the disputed election. In any event, the full knowledge on the part of the Board of the background of the representation dispute and the Board’s participation in the suppression of violence and coercion clearly entitled it to assert knowledge and expertise concerning conditions and climate at the election site on the day on which this election was conducted.

I believe the Board’s certification of this union was within “the wide degree of discretion” entrusted to the Labor Board by Congress in relation to representation matters. NLRB v. A. J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 332 (1946).

Other issues posed by these cases require less discussion.

The Effect of “Going Out of Business”

Tennessee Products and other of the former operators contend that they are not in the business of mining coal, have not been in that business for years, and never intend to go back into that business. The Board order applies, however, only to those who do go back into business. The order specifies that any employer “who continues completely inoperative and outside the unit * * * may avoid the obligation imposed.” Obviously, as long as some operators do not go back into operation, the Board order would be completely ineffective as to them, but it could also do no damage.

In view of the nature of the Board’s order, the motion to reopen proofs to show Tennessee Products’ non-operational status was properly denied.

Statute of Limitation

The operators also urge that Section 10(b) of the NLRA renders the orders of the Board invalid. Section 10(b) provides in pertinent part:

“Provided * * * no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service thereof upon the person against whom such charge is made * * *." 29 U.S.C. § 160(b) (1964).

I believe, as did the Board, that this record must be read as showing a continuing demand for bargaining on the part of the UMW and a continuing refusal to bargain on the part of the operators. See International Union UAW v. NLRB, 124 U.S.App.D.C. 215, 363 F.2d 702, 706-707 (1966), cert. denied, 385 U.S. 973, 87 S.Ct. 510, 17 L.Ed.2d 436 (1967).

Similarly, while the Poplar Coal Company contract with the Southern Labor Union was signed considerably more than 6 months before the unfair labor practice complaint, Poplar’s (i. e. Flynn’s) refusal to bargain was a continuing refusal and its illegal recognition of SLU was a continuing act up to the date of the unfair labor practice complaint. A collective bargaining agreement entered into, or continued, with one union while another union is the certified representative of the bargaining unit is, I believe, invalid “on its face.” Local Lodge 1424, Int’l Ass’n of Machinists v. NLRB, 362 U.S. 411, 415, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960). See also NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 44, 57 S.Ct. 615, 81 L.Ed. 893 (1937)Virginia Ry. v. System Fed’n 40, Ry. Employees Dept., AFL, 300 U.S. 515, 548, 57 S.Ct. 592, 81 L.Ed. 789 (1937). In addition, like the refusal to bargain referred to above, the continued recognition of SLU represented an unfair labor practice within the six month’s limitation period “as a substantive matter.” Cf. Local 1424, Int’l Ass’n of Machinists v. NLRB, supra at 416, 80 S.Ct. 822 (1960).

Antitrust and Conflict of Interest Claims

Finally, the operators assert — with great vigor on the part of Tennessee Products — that an antitrust judgment against the UMW in the United States District Court for the Southern District of Tennessee (Ramsey v. UMW, 265 F.Supp. 388 (E.D.Tenn.1967), aff’d, 416 F.2d 655 (6th Cir. 1969), in a case which is on appeal here now, represents final adjudication of a conflict of interest which would prohibit the Board from requiring them from bargaining with the UMW. It is clear, however, that no conflict of interest or restraint of trade facts were tendered as a defense in this NLRB proceeding. It is also clear that the conflict of interest claimed to have been found by the District Court in UMW’s purchase of an interest in West Kentucky Coal terminated, as shown by the same District Court record, before the election in this proceeding and years before the certification of the UMW.

Parenthetically, I note that no issue of the UMW’s refusal to bargain was presented to the Board or to us, nor would this record justify such a finding.

The petition for review should be dismissed. The petition for enforcement of the orders of the Board should be granted.

1 . Tennessee Products joined in this contention before the Board, but has not advanced it in this court.