Local Union No. 9735, United Mine Workers of America v. National Labor Relations Board

FAHY, Circuit Judge.

Section 8(d) of the Labor Act¹ provides that where a collective bargaining contract is in effect the duty to bargain collectively shall mean that no party to the contract shall terminate or modify it without inter alia serving a written notice on the other party of the proposed termination or modification sixty days prior to the expiration of the contract.

A strike occurred in the winter of 1956 at a mine of the Westmoreland Coal Company in West Virginia. Prior to the strike none of the procedural requirements of section 8(d) were complied with by the Local Union at the mine. Holding that the strike was for the purpose of modifying the 1955 Agreement between the employer and the International Union, United Mine Workers of America, of which the Local was a member,² the Labor Board found that the Local, as agent of the International in this respect, had committed the unfair labor practice of refusing to bargain collectively within the meaning of section 8(b) (3) of the Act³ and entered an order appropriate to such a finding.⁴ 117 N.L.R.B. 1072. The Local petitions us for review of and to set aside the Board’s Order insofar as it operates against the Local. The Board answers and requests enforcement.

The Local attacks the validity of the order on several grounds. It claims that it was not responsible for the strike; that it was not the agent of the International in carrying out the latter’s bargaining function in respects pertinent to this case, and that it was not itself a party to the 1955 Agreement, the modification of which the Board found was its purpose in striking. We find it unnecessary to pass upon these questions because, assuming the correctness of their resolution by the Board adversely to the Local, nevertheless we think the order must be set aside upon the ground, as the Trial Examiner concluded, that the strike was not for the purpose of modifying the 1955 Agreement.

The strike arose in the following circumstances :

Paragraph 7 of the 1955 Agreement reads,

“7. In two or three shift operations the question of seniority with . regard to work on the respective ; shifts shall be left to the discretion ; of the contracting parties at the ¡ mine in question.”

Two employees, Curtis Hager and Has-sell Woods, both on the third shift of a Westmoreland mine, claimed the right by reason of seniority to fill certain vacancies on an earlier shift. Their claims were rejected by the employer, who asserted no shift seniority pertained at the mine. Grievances were filed by Hager and Woods and were processed through the settlement procedures of the 1955 Agreement, eventuating in the decision of an umpire in favor of the employer.

The umpire said the question was “whether or not Curtis Hager and Has-sell Woods are entitled to shift seniority,” that “since shift seniority was not in effect at this particular mine, Curtis Hager and Hassell Woods were properly dealt with in this instance * *

He pointed out that shift seniority is not always in effect at a mine “but simply in effect if agreed between management and the men at that particular mine; and the method of applying seniority where it is in effect is always set up at each mine.” He found no evidence in the record of the grievance hearing that the company had agreed to put shift seniority in effect at this mine after paragraph 7 had been put into the contract.

Was the ensuing strike for the purpose of modifying the 1955 Agreement? It is clear the Agreement does not in terms provide for or preclude shift seniority; it leaves this to the discretion of the parties at each mine; and the umpire thought the evidence did not make out a separate agreement for such seniority at this mine. Obviously, then, the men struck against this decision of the umpire and not against paragraph 7 of the Agreement. Yet the finding of the unfair labor practice is not grounded on a strike against the decision of the umpire. The Board explicitly refused to pass upon the contention of its General Counsel that a strike against an umpire’s award, binding pursuant to contract provisions, is an unfair labor practice under section 8(b) (3). See 117 N.L.R.B. at 1074 n. 4, and also the report of the Examiner, printed at 117 N.L.R.B. 1078, 1092.

The Board reasons, however, that the umpire’s decision became a part of the contract — “at least with respect to the status of Hager and Woods,” to borrow its language, — as if written into the Agreement, and so the strike was to modify this nunc pro tunc addition to the Agreement. But the court decisions relied upon by the Board for the proposition that an arbitrator’s award becomes a part of the contract providing for the arbitration ⁵ we think are not applicable to this case because of paragraph 7 of the Agreement. That provision clearly contemplates that the parties may make separate arrangements at particular mines regarding shift seniority. Assuming that a strike against an umpire’s decision respecting such seniority would be a violation of contractual provisions making such a decision binding, it would not be a strike for the purpose of modifying the Agreement itself. It would be to obtain what paragraph 7 of the Agreement contemplates shall be a matter for separate agreement at each mine.

It may not in reason be said that after the umpire’s decision the 1955 Agreement provided that Hager and Woods and all other employees at this mine could obtain shift seniority only by a modification of that Agreement. This is simply not the situation. For, assuming that Hager and Woods did not have shift seniority when the strike occurred, this was not because the 1955 Agreement deprived them of it but because no arrangements permitted by that Agreement had been made for such seniority at this mine. Thus the strike was not against the 1955 Agreement. The effort of the men by striking to obtain the shift seniority which the evidence shows they believed they had was an effort to obtain what the 1955 Agreement permitted them to seek.

Section 8(d) requires the retention of “all the terms and conditions” of an existing contract “without resorting to strike or lock-out” for a period of sixty days after notice to terminate or modify the contract is given. “Section 8(d) thus seeks during this natural renegotiation period, to relieve the parties from the economic pressure of a strike or lockout in relation to the subjects of negotiation.” Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 286, 76 S.Ct. 349, 359, 100 L.Ed. 309. Section 8(d) does not apply, however, where the attempt is not to modify the terms of an agreement, ibid, cf. United Elec. Radio & Machine Workers of America (U. E.), Local 1113 v. N.L.R.B., 96 U.S.App.D.C. 46, 49-50, 223 F.2d 338, 341-342, but is to obtain an objective which the agreement has not settled. N.L.R.B. v. Jacobs Mfg. Co., 2 Cir., 196 F.2d 680, 683-684. Here the Agreement leaves the matter of shift seniority open. In striking to achieve such seniority the Local did not commit the unfair labor practice found by the Board.

The portions of the order of the Board which run against the Local accordingly are

Set aside.

1 . 49 Stat. 452 (3935), as amended, 29 U.S.C. § 158(d) (1952), 29 U.S.C.A. § 158(d).

2 . The Agreement referred to as the 1955 Agreement is basically the 1950 contract known as “National Bituminous Coal Wage Agreement of 1950,” amended and carried forward as the 1955 Agreement.

3 . 49 Stat. 452 (1935), as amended, 29 U.S.C. § 358(b) (3) (1952), 29 U.S.C.A. § 158(b) (3).

4 . The Board, in support of the proposition that a strike to modify a collective bargaining agreement without complying with section 8(d) is an unfair labor practice under section 8(b) (3), cites N.L.R.B. v. Lion Oil Co., 352 U.S. 282, 285, 77 S.Ct. 330, 1 L.Ed.2d 331; Mastro Plastics Oorp. v. N. L. R. B., 350 U.S. 270, 285-286, 76 S.Ct. 349, 100 L.Ed. 309; United Elec. Radio & Machine Workers of America (UE), Local 1113 v. N.L. R.B., 90 U.S.App.D.C. 40, 50, 223 F.2d 338, 342; Boeing Airplane Co. v. N.L. R.B., 85 U.S.App.D.C. 116, 119, 174 F. 2d 988, 991.

5 . Cracchiolo v. Carlucci, 62 Ariz. 284, 157 P.2d 352, 355, and Zelle v. Chicago & N. W. R. Co., 242 Minn. 439, 65 N.W.2d 583, 590-591, each quoting with approval from 3 Am.Jur., Arbitration and Award, § 154, that when an arbitration “award is made, it is read into the original agreement.” And also Burns v. Thomas Cook & Sons, 317 Mass. 398, 58 N.E. 2d 150, 152; Pick Industries, Inc., v. Gebbard-Berghammer, Inc., 262 Wis. 498, 56 N.W.2d 97, 99, 57 N.W.2d 519; Levy v. Superior Court, 15 Cal.2d 692, 104 P.2d 770, 774, 129 A.L.R. 956.