Bazelon, Chief Judge, and Washington and Tamm, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
al., Respondents 1965.CDC.178
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
The National Labor Relations Board found on a stipulated record that the Protective Wage Clause of the National Bituminous Coal Wage Agreement of 1958 violates § 8(e) of the National Labor Relations Act, 29 U.S.C. 158(e). The Board characterized the clause, the pertinent part of which is set out in the margin, *fn1 as a "union standards clause." In several cases decided after the Board's order here, we held that such a clause would not ordinarily violate § 8(e) so long as it was "germane to the economic integrity of the principal work unit," or sought "to protect and preserve the work and standards [the union] has bargained for." Orange Belt District Council Painters v. NLRB, 117 U.S. App. D.C. 233, 237-38, 328 F.2d 534, 538-39 (1964); Truck Drivers Union, Local 413 International v. NLRB, 118 U.S. App. D.C. 149, 334 F.2d 539, 548 (1964). We think the Board should have an opportunity to reconsider the applicability of § 8(e) in light of these recent cases. Accordingly we remand.
The Board's counsel assumes that the "work unit," which governs the application of § 8(e) here, consists of the employees of individual mine operators. But the Board's opinion assumes that the unit is the totality of workers covered by the contract, i.e., workers representing 74 to 79 per cent of national bituminous coal production. Finally, in a subsequent, related proceeding, *fn2 the Board found that the proper units are the employees of the various multi-employer groups and individual operators with whom the Union contracted.
If the employees of each mine operator constitute the work unit, the clause may go beyond preservation of work for the contracting employees, and therefore fall within the ban of § 8(e). The employees' primary interest is limited to purchase of coal to substitute for coal they would ordinarily produce. But when an operator's sales contracts include grades, types and qualities of coal he cannot produce in his own mines, he must purchase "supplemental" coal from other producers. Ordinarily such purchases would not appear to threaten the employees' jobs. Failure of the clause to distinguish substitute coal from supplemental coal may give it wider application than is required for protection of the employees of any one operator. *fn3
On the other hand, if the work unit includes all employees covered by union contract, these employees would have a primary interest in all coal purchased by any employer covered by the union contract. What one mine operating under the contract cannot produce, another one can. This would not avoid the bar of § 8(e) if, for example, the union's dominance of the industry and imposition of a uniform, nationwide agreement (1) foreclose the view that the secondary effect of the clause is only "incidental," cf. United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626, (1965), or (2) require the conclusion that the clause is a "union signatory clause," District No. 9, International Association of Machinists v. NLRB, 114 U.S. App. D.C. 287, 315 F.2d 33 (1962). But the Board made no such findings.
And lastly if the proper work units are the various multi-employer groups and individual operators with whom the union contracted, the question would arise whether the clause violates § 8(e) with respect to signatory groups which had among their members substantially all the coal production required for their members' contracts. As in the case of a nationwide work unit, there might then be no substantial amounts of coal supplemental to the unit, even though a particular operator belonging to the unit might have to make supplemental purchases.
Of course, we intimate no opinion concerning the proper work unit in this case. That determination involves questions of fact and policy reserved for the Board. The cause will be remanded to the Board for proceedings in accordance with this opinion.