NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,451, A & M TRUCKING, INC. and LOCAL UNION NO. 3029, UNITED MINE WORKERS OF AMERICA, AFL-CIO and DISTRICT 17, UNITED MINE WORKERS OF AMERICA, AFL-CIO., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

A & M TRUCKING, INC. and LOCAL UNION NO. 3029, UNITED MINE WORKERS OF AMERICA, AFL-CIO and DISTRICT 17, UNITED MINE WORKERS OF AMERICA, AFL-CIO.

314 NLRB No. 163.Case Nos. 9-CA-29744-9, -29745-2 and -30323. August 31, 1994 James L. Rose, Administrative Law Judge..

Before Gould, Browning and Cohen.

Bargaining Duty--Settlement Agreements--Memorandum Not “Members-Only’.’--Because a memorandum of understanding executed to settle a strike was not a members-only contract either on its face or in its application, an employer was obligated to bargain with a union and acted unlawfully when it refused to furnish requested information or to discuss grievances with a designated representative of the union. Although the short memorandum lacked a recognition clause and unit description, it was a valid agreement with a fixed duration, reduced to writing, and executed by the parties. Further, it contained sufficient terms and conditions of employment to stabilize the bargaining relationship between the parties. Section 8(a)(5).

Back reference: ¶3097.14.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

The judge found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to furnish certain information requested by District 17 and by refusing to discuss grievances with Ronald Nibert, a designated representative of District 17 and Local 3029. [1] The judge concluded that the memorandum of understanding between the United Mine Workers of America and the Respondent extended only to union members and not all employees and did not entitle either the District or the Local to the rights normally attendant where a labor organization has been designated by a majority of employees in an appropriate unit and has been so recognized by their employer. The judge therefore found that the Respondent did not violate the Act when it refused to furnish the information or deal with Nibert and accordingly dismissed the complaint. For the reasons set forth below, we find, contrary to the judge, that the memorandum of understanding is not a members-only contract on its face or in its application, and that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish District 17 with the requested information and by refusing to deal with Nibert.

On February 4, 1991, the Respondent and Mark Marsh, an International representative for the United Mine Workers of America, executed the memorandum of understanding to settle a strike by the Respondent’s employees over the use of subcontractors to haul coal. Although characterized by the judge and the arbitrator as “short and crude,” the first page of the memorandum provides a wage rate, defines seniority and recognizes seniority rights, and specifies how employee problems will be handled. Item 4 of the memorandum provides that the Respondent “will recognize the settlement of disputes as defined in Article XXIII of the National Bituminous Coal Wage Agreement of 1988.” The memorandum has a fixed duration and contains provisions relating to certain withholdings from wages, reopening the agreement, and management rights. The second page is a wage addendum. The third page, a seniority list of 35 employees, was drawn up and attached approximately 2 to 3 weeks after the execution of the document. The memorandum contains no express recognition clause or bargaining unit description and does not include such a clause through reference to any other collective-bargaining agreement or document. [2] The terms “employees” and “truckdrivers” are used interchangeably in the document and, in defining a new employee, the document refers to “any truckdriver.”

Following the signing of the memorandum, Ronald Nibert was elected one of three committeemen to handle employee grievances. According to Nibert, the committeemen informed Tony Mayes, the Respondent’s owner and president, of their election. Nibert and the other committeemen handled approximately seven grievances and safety complaints before the arbitration hearing. In each instance, they dealt with Mayes.

On May 9, 1991, Local 3029 filed a grievance concerning the Respondent’s use of subcontractors to haul coal. Prior to the May 6, 1992, [3] arbitration hearing on the grievance, by letter dated March 12, District 17 requested information from the Respondent concerning the use of subcontractors. [4] The Respondent did not respond to the information request. At the end of Nibert’s shift on May 7, Mayes told Nibert that he would no longer discuss union business with Nibert because Nibert had lied at the arbitration hearing the day before. Nibert replied that he was not a liar and that Mayes would have to deal with him regarding the Union because he was an elected committeeman.

By a decision dated June 5, the arbitrator found that the Respondent had violated the memorandum by subcontracting certain hauling of coal and provided an award based on the number of days that contractors were used. The arbitrator also ordered the parties to jointly examine the Respondent’s records to determine the amount of the award. By letters dated June 26, July 3 and 6, District 17 repeated its request for the information sought in the March 12 letter and for information related to the arbitrator’s award. The Respondent did not provide the requested information.

Near the end of June, Nibert approached Mayes about the transporting of some employees to the worksite in an open truck. Nibert was concerned about safety and whether the employees were being paid. Mayes told Nibert he would talk to one of the other committeemen, but not to Nibert.

By letter dated December 10, District 17, seeking further information regarding the Respondent’s use of subcontractors, requested information regarding the Respondent’s relationship with E & T Trucking, an alleged subcontractor. The Respondent did not respond to the request. By letter dated December 18, District 17 reiterated its request for the additional information concerning E & T and requested additional information concerning the Respondent’s coal hauling contract with its prime contractor. Again, the Respondent failed to respond to the information request. By letter dated January 5, 1993, District 17 reminded the Respondent of the outstanding information requests and offered to clarify any of the requests. According to Robert Phalen, president of District 17, the Respondent has failed to respond to any of District 17’s requests for information.

In concluding that the memorandum established recognition in a members-only unit, the judge relied on the memorandum’s lack of a recognition clause and unit description, and on Nibert’s testimony concerning the question of how many employees the Respondent had at the time the memorandum was executed. In this regard, Nibert testified that the Respondent had “45 to 60. At the time we--at the time that we went--were voted in Union, there was approximately 35.” The judge concluded that this testimony was consistent with the seniority list attached to the memorandum that contained 39 names. The judge also cited the testimony of Robert Bess, a field representative for District 17, and Mayes as further support for this conclusion. Bess testified that District 17 represented the “classified employees” working for the Respondent. Bess further testified that he used the term “classified employees” to refer to “the Union employees or the employees who belong to the United Mine Workers and also work for” the Respondent. Mayes testified that the Respondent also employs mechanics, that the memorandum only covered the truckdrivers, and that the Respondent filed a monthly statement with District 17 of dues withheld for union employees. Contrary to the judge, we find that there is no evidence, either on the face of the document or in its application, that the memorandum covered only union members.

The memorandum, although brief, is a valid agreement with a fixed duration, reduced to writing, and executed by the parties. Further, the memorandum contains sufficient terms and conditions of employment to stablilize the bargaining relationship between the parties. Central Plumbing Co., [1972 CCH NLRB ¶24,521] 198 NLRB 925 fn. 1 (1972) see also Appalachian Shale Products Co., 121 NLRB 1160 (1958). Although the document lacks an explicit recognition clause or unit description, the memorandum refers to “truckdrivers” [5] and subsequently to “employees.” The memorandum further defines a “new employee” as “any truckdriver” paid by the Respondent. This language indicates that it applies only to the Respondent’s truckdrivers, [6] but nothing on its face suggests that it applies only to those truckdrivers who were union members. The judge appears to infer members-only application from Nibert’s testimony as to the number of Respondent employees in February 1991. Contrary to the judge, we find that Nibert’s statement is ambiguous and open to several interpretations rather than constituting evidence of a members-only recognition. [7]

We further find that neither the testimony of Bess nor Mayes suggests the existence of a members-only contract. Bess’ testimony that District 17 represented the “classified employees” working for the Respondent is at best ambiguous. Concededly, Bess testified that he used the phrase “classified employees” to refer to “the Union employees or the employees who belong to the United Mine Workers ....” However, we do not believe that these remarks, standing alone, establish a “members only” contract. In this regard, we note that Bess was simply indicating his subjective understanding of the phrase. In addition, we note that the other evidence discussed herein is objective and that it supports the view that a “members only” relationship was not contemplated. Mayes’ testimony merely indicates that the memorandum was intended to apply only to the Respondent’s truckdrivers and, considered with the language of the memorandum, supports the conclusion that the Unions represented all the Respondent’s truckdrivers.

Further, there is nothing in the record to suggest that the memorandum has been applied on a members-only basis. To the contrary, the record establishes that the Respondent has applied the memorandum to all of its truckdrivers, deducting dues from their paychecks, remitting those dues to District 17, dealing with the Unions’ representatives over grievances, meeting with District 17 to discuss contract negotiations, and proceeding to arbitration over the grievance concerning subcontracting. Cf. Ron Wiscombe Painting & Sandblasting Co., [1992 CCH NLRB ¶23,785] 194 NLRB 907 (1972). Further, nothing in District 17’s or Local 3029’s representational activities with either the Respondent or the truckdrivers in any way suggests that its representation was limited only to members. Under these circumstances, we find that the representation of the truckdrivers by District 17 and Local 3029 as not limited to those who had joined the United Mine Workers. Accordingly, we find that the Respondent had an enforceable contractual relationship with District 17 and Local 3029 and that the Respondent’s failure to furnish the requested information [8] to District 17 and to discuss grievances with the designated representative of District 17 and Local 3029 violated Section 8(a)(5) and (1) of the Act. [9]