Peabody Coal Co.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 263 (N.L.R.B. 1969)

PEABODY COAL CO.
Peabody Coal Company and William M . Giffin
Progressive Mine Workers of America, District
No. 1 and its affiliated Local No. 201 (Peabody
Coal Company ) and William M . Giffin
Progressive Mine Workers of America, District No.
1 (Coal Producers Association of Illinois and
Sahara Coal Corporation ) and Charles Borum; W.
C. Gill; Dan Villa; Local Union No. 165,
Progressive Mine Workers of America; Local
Union No. 170 , Progressive Mine Workers of
America ; Coal Producers Association of Illinois;
Sahara Coal Corporation , Parties in Interest.
Cases l4-CA-4645, 14-CB-1668, and 14-CB-1656
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On January 30, 1969, Trial Examiner Robert
Cohn issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter the Respondents, except
Peabody Coal, jointly filed exceptions and a brief in
support and the General Counsel filed a
cross-exception and brief.
The Board' has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case , and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner to the extent indicated herein.
This is the third in a series of cases involving the
Welfare and Pension Plan of the Progressive Mine
Workers.2 This Plan is supported solely by employer
contributions based on the tonnage of coal mined,
and administered by trustees appointed by the
Employers and the Union. Since the inception of the
Plan the Union continues to negotiate the amount of
tonnage contribution as well as changes in
provisions of the Plan. Accounting is by individual
mine and, in turn, by individual employee
allocation. Allocations, and forfeitures also, are
made annually on dates which have been selected as
convenient for accounting purposes. An employee's
right to his allocation is not vested. The Plan
requires continued membership in good standing for
participation. Under the Union's Constitution
membership is lost automatically when a member
'Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-member
panel
263
accepts employment in the coal industry in a mine
not under contract with the Progressive Mine
Workers.' Membership, however, may be retained
when a member accepts employment at another
mine represented by the PMW, or accepts work
outside the coal industry. The Plan thus
discriminates on the basis of union membership.
Involved in this case are two groups of
discriminatees who left employment at mines
represented by the PMW to go to work at mines
represented by the United Mine Workers: 5
employees who, in 1965, left the Peabody Midwest
Mine which was about to be abandoned and as to
whom the Plan then called for automatic loss of
membership; and 12 employees, 11 of whom left
Sahara Mines 5 and 16 before September 20, 1967,
the 6-month cutoff date applicable as to them under
Section 10(b) of the Act. In both groups some
employees tendered dues; these were rejected; others
made no tender on the ground that tender was
futile, or, more specifically, that they knew they
could not belong to two unions. The Trial Examiner
found that tender of dues in the circumstances was
in fact futile, and concluded that 8(a)(3) and 8(b)(2)
- as well as 8(a)(1) and 8(b)(1)(A) - had been
violated not only by the automatic loss of
membership sustained by the miners upon going to
UMW represented mines, but also by the forfeiture
actions later taken with respect to their individual
allocations.
As to the five employees who left the Peabody
Midwest mine in 1965 in anticipation of its
abandonment, the Trial Examiner placed the
ultimate forfeiture of their allocated benefits as of
January 19, 1968, well after the October 16, 1967,
10(b) date. The rejection of dues tendered by those
of this group who attempted to keep up their
membership after leaving this mine where they were
represented by the PMW4 he considered a separate
unfair labor practice barred by Section 10(b).
However, he viewed the ultimate forfeiture of
individual allocated funds as a separate and
independent unfair labor practice and found that the
cotrustees' action of January 19, 1968, placing the
allocated funds of these five employees in a suspense
account because of the charges here under
consideration, being within the 10(b) period, was
litigable. As to the employees who left work at
Sahara Mines Nos. 5 and 16 in the months before
September 20, 1967, the 10(b) date as to them, he
found that the ultimate forfeiture of individual
allocations was taken by the cotrustees on March 1,
1968, the annual allocation date for these mines,
thus within the 10(b) period.
'Coal Producers ' Association , 165 NLRB No 31; Local No 167, PMW
(Peabody Coal), 173 NLRB No 189.
'See the PMW Constitutional provision quoted at footnote 6 below
'At the time these dues were tendered there was no special amendment
applicable to abandoned mores This was adopted by the parties on April
26, 1966, and was retroactive to March 15 , 1965, thus applicable to the
Peabody Midwest Mme which last produced coal on March 26, 1965. The
amendment provides as to those who cannot find work at PMW mores and
180 NLRB No. 38
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not agree with the Trial Examiner that the
theory of two, independent unfair labor practices is
supportable on the record before us.' On the
contrary we view the immediate loss of membership
under the PMW Constitution' once a PM W
member accepts employment in the coal industry in
any mine not under contract with the PMW, and
the automatic forfeiture of individual allocations
incident to loss of membership under applicable
special allocation plans ' as constituting the unfair
labor practice. Where, however, the record shows
that a tender of dues or tender of payment in the
nature of a service fee is initially accepted by the
Union, in effect temporarily postponing the
otherwise immediate loss of membership and
consequent forfeiture of allocations, we have found
that the date on which such payment is rejected by
the Union is the date from which the 10(b) period is
to be computed.' And, as mentioned above, the
PMW has itself created an exception in the case of
mine abandonment , postponing the loss of
membership by special amendment until the third
allocation date after change of employment, during
which grace period an employee may return to a
mine represented by the PMW with no loss of
membership or benefits. Otherwise the date of
change in employment as aforesaid entails
immediate loss of membership and is the date from
which the 10(b) period must be computed.
are forced to give up their PMW membership "through no choice of their
own" that their "allocated moneys shall not be forfeited until the third
allocation date following abandonment of such mine ." The annual
allocation date for this mine is April 1.
The General Counsel excepts to the Trial Examiner's finding that
abandonment at the Peabody Midwest Mine occurred on March 26, 1965,
as he would place this as having occurred after April 1, 1965, based on
certain dismantling work accomplished after that date . We find no merit in
the General Counsel's cross exception on this point, as the record indicates
that the date on which the last coal is taken out is the date customarily
accepted as indicating that mine abandonment has occurred.
'in this connection see N L. R B v. Bryan Manufacturing Co., 362 U S
411.
.By amendment of July 1, 1966, the PMW Constitution , Article VI,
Revenue, Section 5, reads as follows.
Any person working outside of the mines in other industries , one (1)
month in arrears for dues or assessments shall be dropped from the
organization and can only be readmitted as a new member by initiation.
Any member of the P M W of A accepting employment in the coal
industry in any mine not under contract with the P.M.W of A. or
International Union District 101, be [sic] immediately dropped from
membership.
'The Midwest Mine Special Allocation Plan adopted June 27, 1962,
provides as follows
Section 19 Union Membership All persons mentioned herein except
widows and dependents shall continuously remain members in good
standing of a local Union of the Progressive Mine Workers of America,
District 1, to be eligible hereunder . In the event a member shall fail to
continuously remain a member in good standing , any moneys allocated
to his individual accounts shall be transferred to the Underground
Midwest Contingency Reserve Account.
Dropping of such membership shall automatically forfeit any funds
then allocated or the right to any future allocation , and reinstatement to
membership thereafter shall not reinstate any allocated moneys thus
forfeited, unless proof is made that such dropping was in error and such
member is reinstated in accordance with the constitution of the Union,
provided such reinstatement must be before the annual allocation period.
Such moneys so forfeited shall be placed in the Underground Midwest
Contingency Reserve Account.
The forfeiture of individual accounts of the
former Sahara employees made by the cotrustees on
the March 1, 1968, annual allocation date, and the
special suspense account action taken on January
19, 1968, with respect to the allocations of former
Peabody Midwest employees who had lost their
membership as of April I, 1967, the third allocation
date following that mine's abandonment, by failing
to return to a PMW represented mine, we view as
mere bookkeeping entries reflecting forfeitures
already effected by automatic operation of the
PMW Constitution, the PMW Welfare and
Retirement Plan, and the applicable Special
Allocation Plans set out herein at footnote 7.
Thus in this case, except with respect to Absher
who terminated his employment at Sahara Mine
No. 5 on October 3, 1967, within the 10(b) period,
we shall dismiss the complaint.' As to Absher10 the
charge was timely and we adopt the
recommendations of the Trial Examiner with respect
to finding violations of 8(b)(1)(A) and 8(b)(2).
Inasmuch as we are finding no violations as to the
former Peabody Midwest employees, we shall
dismiss the 8(a)(1) and 8(a)(3) allegations of the
complaint which were filed with respect to Peabody
Coal Company only.
The Trial Examiner's Conclusion of Law No. 3
refers to contractual provisions conditioning
participation in employment benefits upon continued
maintenance of membership in good standing in
Respondent PMW "after the employment
relationship covered by the contract has ceased..."
The quoted words go beyond the facts in issue.
The Sahara No. 5 and Sahara No. 16 Special Allocation Plans adopted
March 4, 1958 and amended September 24, 1958 , provide as follows
Sec. 11 Union Membership . All persons mentioned herein except
widows and dependents shall continuously remain members in good
standing of a local Union of the Progressive Mine Workers of America,
District 1 , to be eligible hereunder In the event a member shall fail to
continuously remain a member in good standing , any moneys allocated
to his individual accounts shall be transferred to the regular Welfare
Fund of said mine.
Dropping of such membership shall automatically forfeit any funds
then allocated or the right to any future allocation , and reinstatement to
membership thereafter shall not reinstate any allocated moneys thus
forfeited , unless proof is made that such dropping was in error and such
member is reinstated in accordance with the constitution of the Union,
provided such reinstatement must be before, the annual allocation period.
Such moneys so forfeited shall be placed in the Mine Retirement
Pension Fund or the Mine Welfare Fund, as the case may be, for future
allocation to eligible member-employees.
'Local Union No 167, Progressive Mine Workers of America (Peabody
Coal Company ), 173 NLRB No. 189
'Former Sahara employees Danny Wmkleman and Larry Prather both
quit before the 10(b) date, later returned for a limited time , and quit again
within the 10(b) period . Both were required to pay a PMW reinstatement
fee when they returned . As it does not appear that the memberships of
these two men were dropped " in error", reinstatement would not carry
with it the restoration of "any allocated moneys thus forfeited ." within
the meaning of Section I I of the Sahara Special Allocation Plans quoted
in fn. 7.
"Absher, like many of the alleged discrimmatees , tendered no dues upon
leaving Sahara No 5 and going to work at a mine represented by the
United Mine Workers of America because , as he testified , he knew he
could not belong to two unions at the same time . We agree with the Trial
Examiner that an offer by Absher would have been a futile gesture at that
time
PEABODY COAL CO.
We amend the Trial Examiner's Conclusion of Law
No. 3 to read as follows:
3. By maintaining and enforcing provisions of
the contractually established PMW Welfare and
Retirement Pension Plan which deny benefits to
miners or their dependents solely because they
have lost their good standing membership in a
local Union of Progressive Mine Workers of
America, District 1, as a result of accepting
employment in mines whose employees are not
represented by Progressive Mine Workers of
America, and by causing the cotrustees of the
fund to forfeit funds allocated to the
discriminatee , the Respondents have restrained
and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in
violation of Section 8(b)(l)(A), and have caused
and attempted to cause an employer to
discriminate against his employees in violation of
Section 8(a)(3) of the Act, and have thereby
violated Section 8(b)(2) of the Act.
THE REMEDY
Consistent with the recommendation of the Trial
Examiner, we shall order the Respondent PMW, in
Case 14-CB-1656, to cause its agents the cotrustees
to reinstate the individual allocation of Donald
Absher, such restoration to include the interest
which normally would have accrued had this
individual allocation not been forfeited. We do not,
however, include any other "accumulated credits"
inasmuch as it appears, as contended by the
Respondent PMW, that all employees who quit
their jobs whether because of ill health, employment
outside the industry, or any other reason , receive no
further work credits toward their individual
allocations.
Contrary to the Trial Examiner, who
recommended restoration of allocations without the
necessity of tender of service fees, we shall require
that the amount of such fees which would have been
payable by Absher in the period since he left his
employment at Sahara Mine No . 5 shall be
deducted from the allocation to be restored to him.
This is consistent with the Board's customary offset
treatment in backpay cases . See Lloyd A. Fry
Roofing , 161 NLRB 1420, 1426.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Progressive Mine Workers of America , District No.
1, Springfield , Illinois, its agents, officers, and
representatives , shall:
1. Cease and desist from:
(a) Maintaining and enforcing provisions of the
contractually established PMW Welfare and
Retirement Plan which deny benefits to miners or
265
their dependents solely because they have lost their
good standing membership in a local Union of
Progressive Mine Workers of America, District No.
1, as a result of accepting employment in mines
whose employees are not represented by Progressive
Mine Workers of America.
(b) Withholding from miners (or their dependents)
who lose their membership solely as a result of
accepting employment in mines whose employees
are not represented by Progressive Mine Workers of
America, PMW Welfare and Retirement Plan
benefits to which they would otherwise be entitled,
so long as such miners tender the periodic service
fee payments uniformly required.
(c) In any like or related manner restraining or
coercing employees in the exercise of their right to
join or not to join a labor union, except insofar as
that right may be limited by a valid union-security
provision under the first proviso to Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify the cotrustees of the PMW Welfare
and Retirement Plan fund that Absher has been
eligible continuously for benefits under the Plan, and
shall remain eligible so long as he makes the
periodic service fee payments uniformly required. As
described in "The Remedy" section of this Decision,
Absher's allocation is to be restored with interest
but subject to deduction of accumulated service fees.
(b) Preserve and make available to the Board or
its agents, upon request, for examination and
copying, all records of Respondent PMW and of the
said cotrustees relating to the moneys allocated to
the above-named individual and all other records
which are relevant to a determination of the amount
to be restored to him under the terms of this Order.
(c) Post in conspicuous places at its office,
meeting halls, and the offices of its constituent
Local Unions, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 14,
after being duly signed by an authorized
representative of the Respondent, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered , defaced,
or covered by any other material. Upon request of
the Regional Director, the Respondent PMW shall
supply him with a sufficient number of signed copies
for posting by Peabody Coal Company and Sahara
Coal Company at their mines where employees are
represented by Respondent PMW, if said companies
desire to do so.
"In the event this Order is enforced by a judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 14, in
writing, within 10 days from the receipt of this
Order, what steps the Respondent Union has taken
to comply herewith.
IT IS FURTHER ORDERED that the complaint, in so
far as it alleges unfair labor practices not found
herein, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO MEMBERS
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL direct our agents, the cotrustees of the
PMW Welfare and Retirement Plan fund, not to give
effect to those provisions of the Plan which deny
benefits to miners and their dependents solely because
they have lost their good standing membership in a
local Union of Progressive Mine Workers of America,
District No. 1, as a result of accepting employment in
mines whose employees are not represented by
Progressive Mine Workers of America.
WE WILL direct our agents, the cotrustees of said
fund, not to withhold from miners (or their dependents)
who lose their membership in our organization solely as
a result of accepting employment in mines whose
employees are not represented by Progressive Mine
Workers of America, PMW Welfare and Retirement
Plan benefits to which they would otherwise be entitled,
so long as such miners tender the periodic service fee
payments uniformly required.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their right to join
or not to loin a labor union, except in so far as this
right may be limited by a valid union-security provision
under the first proviso to Section 8(a)(3) of the Act.
WE WILL cause the cotrustees of the PMW Welfare
and Retirement Plan fund to reinstate the individual
allocation of Donald Absher with interest, after
appropriate deduction for accumulated service fees.
PROGRESSIVE MINE
WORKERS OF AMERICA,
DISTRICT No. I
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
1040 Boatmen' s Bank Building , 314 North Broadway
Street, St. Louis, Missouri 63102, Telephone
314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner - This consolidated
proceeding , heard at St . Louis, Missouri , on October 14
through 16, 1968, is a sequel to prior proceedings
involving substantially the same parties, which resulted in
decisions of the National Labor Relations Board (herein
the Board).' The principal issue in those cases, as here,
pertains to the legality under Section 8(a)(3) and (1) and
8(b)(2)and (1)(A) of the National, Labor Relations Act, as
amended (herein the Act), of a plan under which
employees of employers under contract with Progressive
Mine Workers of America, District No. 1, and its
affiliated local unions (herein collectively referred to as
PMW) are provided welfare and retirement benefits.
The original charge herein was filed against Respondent
PMW on March 20, 1968, by one Charles Borum (Case
14-CB-1656). Additional original charges were filed
against Peabody Coal Company (herein Respondent
Peabody) and Progressive Mine Workers of America,
District No. 1 and its affiliated Local No. 201, on April
16, 1968, by one William M. Giffin, an attorney (Cases
14-CA-4645 and 14-CB-1668). On September 17, 1968,
the General Counsel of the Board through the Regional
Director for Region 14, issued his order consolidating
cases, complaint and notice of hearing to which
Respondents Peabody and PMW duly filed their
respective answers.'
At the hearing all parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to
introduce evidence relevant and material to the issues, and
to argue orally and file briefs with the Trial Examiner. At
the close of his case-in-chief, counsel for General Counsel
moved to strike the name of one of the alleged
discriminatees (Beinart ), which motion was granted
without objection. Respondent PMW then moved to
dismiss the complaint on grounds of failure of proof, as
well as the limitations imposed by Section 10(b) of the
Act.' Ruling on the motion was reserved and will be
disposed of through the findings, conclusions, and
recommendations hereinafter made. The parties declined
the opportunity to argue orally, reserving their right to file
briefs. Posthearing briefs have been received from counsel
for the General Counsel and counsel for Respondent
PMW, which have been carefully considered.
Upon the entire record in the case, including my
observation of the attitude and demeanor of the witnesses
while testifying, I hereby make the following.
FINDINGS AND CONCLUSIONS
1. COMMERCE
Coal Producers' Association of Illinois (hereinafter the
Association) is an organization of coal mine operators
engaged in the production and sale of coal within and
without the State of Illinois. At all times material, the
Association has been the authorized agent of its
employer-members, including Sahara Coal Corporation
'See Coal Producers ' Association of Illinois , et al., 165 NLRB No 31,
and Local Union No 167, Progressive Mine Workers of America
(Peabody Coal Company), 173 NLRB No 189 Since these decisions will
be referred to from time to time in the instant decision , I shall, for the
sake of brevity, refer to them as the Glass and Bosse cases, respectively
(the reference being to the names of the first Charging Parties in each
case)
'The complaint was subsequently amended on October 11, 1968, for the
purpose of adding two persons as alleged discrimmatees thereto.
'This section proscribes the filing of charges more than 6 months after
the unfair labor practices occur, as discussed more fully, infra
PEABODY COAL CO.
(herein Sahara) for the purpose of engaging in collective
bargaining with PMW with respect to wages, hours, and
other terms and conditions of employment of its members'
employees. During an annual period, the
employer-members of the Association in the aggregate
have, in the course and conduct of their business
operations, mined, processed, sold, and distributed at their
various facilities in the State of Illinois, products valued in
excess of $50,000, of which products valued in excess of
$50,000 were shipped from such facilities directly to points
in the United States other than the State of Illinois. Upon
these facts, I find that the Association is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.4
Respondent Peabody, a Delaware corporation, is
engaged in the mining, processing, selling , and distributing
of coal in several States of the United States including the
State of Illinois , from which it annually ships coal valued
in excess of $50,000 directly to points located outside that
State. I find that Respondent Peabody is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Sahara Coal Company (herein Sahara) is an Illinois
corporation engaged in mining , processing , selling, and
distributing of coal in the State of Illinois. As previously
noted, it is a member of the Association. It annually sells
and ships products valued in excess of $50,000 directly to
points located outside the State of Illinois. I find that
Sahara is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer of Respondent PM W
admits, and I find that Progressive Mine Workers of
America, District No. I and its affiliated Locals Numbers
165, 170, and 201, and each of them, are, and have been
at all times material, labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Prior Proceedings
As previously noted, much of the factual background
necessary for an understanding of the issues raised in the
instant proceeding was set forth and analyzed by Trial
Examiners and the Board in the prior cases, to which
reference is made. In brief, it was there found that the
Respondent PMW and the Association have been in
contractual relations for a number of years and that such
collective- bargaining agreements have, inter alia , provided
for the establishment of a welfare and pension fund for
the benefit of employees of Association members. The
administrative provisions of such fund are provided for in
a document which the parties refer to as Plan 7.'
The welfare and pension fund is funded solely through
contributions of the employers based upon the amount of
coal produced at the particular mine involved. Such
payments are channeled to the cotrustees of the fund' who
'The Board previously asserted jurisdiction over the same Association.
See 165 NLRB No. 31.
'Plan 7 apparently is a basic, master plan to which amendments are
periodically made to cover local problems respecting particular mines
The relevant provisions regarding the establishment of the welfare and
pension fund referred to above in the contract between the Respondent
PMW and the Association , were adopted in all relevant respects by
Respondent Peabody and are applicable to the instant proceeding.
267
are charged with its day-to-day administration. At all
times material , such moneys are placed in accounts for
each individual contributing mine , and approximately once
each year the funds are allocated to each employee so as
to show the amount available for his retirement or
disability. Such allocation date varies among the
individual mines so as to distribute the workload in the
trustees' office. No moneys are actually transferred or
deposited in any individual bank account, but only on a
bookkeeping basis, so that such allocated portions cannot
be used to pay the benefits to other miners. However, no
individual miner or his dependents have any vested rights
in the fund.
As was found in the prior cases, the
collective-bargaining agreements between the Respondent
PMW and the employers contain a union-security clause
requiring membership as a condition of employment.
There, as here, "[N]o question is raised as to the validity
of the membership requirement under the bargaining
agreements during the period of employment at a mine of
an association member."' (Emphasis supplied.) However,
payments in the form of union dues are required of
employees who no longer work in the unit as a condition
of participating in the benefits of the fund. In the Glass
case , the Board upheld the legality of such payments on
the ground that they could be considered in the nature of
a service fee for the handling of benefits payable pursuant
to the plan, and justifiable as such. However, the Board
continued:
In reaching the conclusion that the Union is entitled
to charge a fee to employees who no longer work in the
unit who desire to participate in the plan's benefits, we
wish to emphasize that we do not reach the further
question whether employees are in fact required,
pursuant to the plan, to maintain their membership in
the Union, or may have their membership forfeited in a
manner which would be violative of Section 8(a)(3) of
the Act.'
In the later Bosse case, the facts were that the Charging
Party and another employee at Peabody Coal Company's
Midwest mine (a PMW mine covered by the PMW
retirement plan) quit their jobs at that mine and were
transferred by the Company to another of its mines where
the United Mine Workers (UMW) was the bargaining
representative. However, before being transferred, both
employees paid their union dues for 11 months in advance
to the Union's (PMW's) financial secretary, and were
given a receipt.' Two months later, each employee
received his dues money back from PMW because they
had accepted employment at a mine not under contract
with PMW, and therefore had been immediately dropped
from membership pursuant to PMW's constitution.'" Trial
'W. C Gill and Dan Villa, denominated herein as parties in interest, are
currently the cotrustees for the Association and the Union , respectively,
and were represented by counsel at the hearing It is not disputed that they
are appointed by, responsible to, and agents of their respective principals
'165 NLRB No. 31.
'165 NLRB No. 31. The Board did not reach this "further question"
because , as the decision states. " - the record furnishes no adequate proof
to establish that the eligibility status of individuals covered by the plan has
been forfeited for any reason other than failure to make periodic payments
to the Union "
'The evidence there - as here - shows that the amount of $1.45 per
month was charged to members working outside the coal industry
"Such constitutional provision is similarly in evidence in the instant
proceedings. Indeed , in its brief there, as here , the PMW concedes that
dual unionism is prohibited under the constitution of both PMW and
UMW so that an employee of a mine under contract with one of these
unions must become a member of the contractual union alone, and
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner Ladwig found that PMW's refusal to accept
such union dues (i.e., service fees) from the employees
because of their membership in UMW, "thereby
subjecting their allocated pension funds to forfeiture under
the provisions of the retirement plan, coerced the two
employees in the exercise of their Section 7 rights, in
violation of Section 8(b)(l)(A) of the Act." The Board
affirmed such finding."
In the light of the foregoing principles, I now turn to
the facts of the instant case as respects the individuals
alleged herein to have been similarly discriminated
against
B. Peabody's Midwest Mine' I
At all times material, the employees of this mine were
represented by PMW. The mine was "working out" of
coal near the end of 1964; the last coal was actually taken
from the mine on March 26, 1965. The employees were,
of course, aware of these circumstances both from
observation and advice from company supervisors.
Wheeler W. Justice had worked at the Midwest mine
since 1962, and was a member of PMW. Due to the
situation at Midwest, above described, Justice was, on or
about January 23, 1965, offered a job by Peabody at its
Pawnee Mine No. 10 which he accepted and moved
immediately to that mine. He worked there as a
supervisor and therefore did not and could not -
become a member of the Union (UMW) which
represented rank-and-file employees.
When Justice left Midwest, he wrote a check in the
amount of $5 and gave it to John Zarr, the financial
secretary of the PMW Local." On May 10, 1965, he sent
the local union another check for $5 for 4 months' dues.
However, on July 9, 1965, the local union returned that
check along with its own $5 check payable to Justice
together with a covering letter stating, in effect, that the
local union could no longer carry him as a member of
PMW because he was in the coal industry.
Sometime prior to May 1965, he applied to the trustees
of the fund for accelerated benefits (which are apparently
applicable in the case of an abandoned mine ). This was
denied by letter dated May 7, 1965, in which the
cotrustees advised that the claim was denied "since you
returned to the coal industry." On June 17, 1965, the
cotrustees further advised Justice by letter, stating that he
was not entitled to "any monies" from the fund since
membership in local union was dropped on March 31,
1965, and he was therefore no longer a member in good
standing with PMW. The letter' ° continued.
According to provisions ►n the Plan, a
member-employee must be a member in good standing
therefore cannot become or remain a member of the other union.
"In so affirming , however , the Board specifically construed the aforesaid
constitutional provision "not [to] prohibit the continued payment of service
fees as a means of maintaining eligibility under the Welfare and
Retirement Pension Plan Within the meaning of our decision in Coal
Producers ' Association of Illinois. 165 NLRB No 31, and of our Decision
here , the violations we find and here remedy are based upon the rejection
of said service fees and resulting deprivation of rights under the Plan -
not the denial of PMW membership as such . We are not here dealing with
acquisition or retention of membership in the sense protected by the
proviso to Section 8 (bXl)(A), and our Decision is not intended to require
the Respondent to confer membership status on Bosse and Ude " (173
NLRB No 189 at fn t )
"Sometimes referred to as the Underground mine
"The $5 purportedly represented 4 months' dues at $1.25 per month
"G C Exh 12
of a Local Union of the Progressive Mine Workers of
America, District I and must remain in good standing
to be eligible for Retirement-Pension benefits. In view
of this, you are not entitled to monies previously
allocated to you.
Charles Robert Fontana last worked at the Midwest
mine on or about February 26, 1965, when he left to take
a job with an insurance company. He returned to the coal
industry in April, working a short time at a mine owned
by Freeman Coal Mine Corp., and then at Respondent
Peabody's Pawnee 10 mine, both of whose employees are
represented by UMW. He is presently working at the
latter location.
On March 15, 1965, he paid union dues of $1.45 to
Local 201 of PMW and on April 3, 1965, he paid $1.20 to
the same local union for "dues." Neither check was
returned to him.
As in the case of Wheeler Justice, Fontana applied for
accelerated pension benefits, which were denied by the
cotrustees on May 14, 1965, on the grounds that " . . you
are no longer in good standing with Local Union 201."
John and Lawrence Martincic; Hubert Furlong- The
Martincic brothers were employees at the Midwest mine
when it was abandoned. Both worked there until on or
about April 10, 1965 Shortly thereafter each secured
employment at other mines where employees are
represented by the UMW. Furlong worked at Midwest
until March 26, 1965. Subsequently, he has worked at
other of Respondent Peabody's mines where employees
are represented by UMW.
Neither of these three individuals has attempted to pay
dues to PMW since they left the Midwest mine. John
Martincic credibly testified that he did not attempt to pay
dues to PMW after he left Midwest because he knew that
"you couldn't belong to two unions at the same time."
C. Forfeiture of Funds and the Section 10(b)Problem
Respondent PMW urges that, assuming the alleged
discriminatees who worked at the Midwest mine ever had
any rights under the Act, such rights were extinguished by
the statue of limitations (Section 10(b)) because a charge
was not filed within 6 months of the alleged unfair labor
practices .'s The principal question becomes What acts or
conduct of Respondents occurred which gave rise to a
right of the alleged discriminatees under the Act. As the
evidence shows respecting Wheeler Justice and Charles
Fontana, each was dropped from membership in PMW
after it was learned by PMW they had secured
employment at a mine where employees were represented
by the UMW. Their claims for accelerated benefits were
denied shortly thereafter , in May 1965, because they had
lost their membership in PMW . However , it is important
to note that the allocated funds of these individuals (as
well as the other alleged discriminatees who worked at the
Midwest mine ) were not forfeited at that time Thus,
while ordinarily loss of PMW membership results in
forfeiture of allocated funds at the reallocation date
immediately following such loss, (see G. C. Exh. 3, pp.
14-15), there is an exception where the mine is abandoned
as was the case here. The plan for the Midwest mine
provides:
"Section 10(b) of the Act provides in relevant part
Provided That 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 of a copy thereof upon the person against
whom such charge is made .
PEABODY COAL CO.
Notwithstanding any provisions hereinabove
contained in this Plan or in Plan 7 to the contrary, in
the event of the abandonment of said mine covered by
this allocation plan, and because of such abandonment
a member-employee, through no choice of his own, is
forced to give [up] his membership in the Union
because of such employment at another mine, then his
allocated moneys shall not be forfeited until the third
allocation date following the abandonment of such
mine. If such member-employee prior to said third
allocation date again takes up employment and
becomes a member in good standing of a local union
affiliated with the Progressive Mine Workers of
America, District l then his allocated funds may be
transferred and benefits may be payable to him as
provided in the benefits applicable at his mine. In the
event he has not taken up employment at a mine under
contract with the Progressive Mine Workers of
America, District l and has not become a member in
good standing of said Union before said third allocation
date then his moneys shall be forfeited as provided in
said allocation plans. (This shall be effective and
retroactive to March 15, 1965.)i6 [Emphasis supplied.]
The foregoing amendment seems clearly to dictate that
the moneys allocated to the individuals involved herein
"shall not be forfeited until the third allocation date
following the abandonment of such mine." The record
evidence as to when such forfeitures actually occurred as
respects the alleged discriminatees involved here is
somewhat vague and uncertain. Thus Marian Bushkill,
executive secretary of the fund, testified that under the
amendment the funds are held ". . . up to three years. At
the end of the three years that's the time for forfeiture
and they are set up in the suspense fund, which is in the
R.P. [retirement pension] fund." She further testified that
the 3 years was up as of March 30, 1967." However, she
conceded that "we were running considerably behind on
the allocation on the Underground. As a matter of fact,
we did two of them at once, the '65 -- the '66 and '67, we
did it at the same time and they weren't completed until
'68 and we still haven't done the '68." The record further
shows (G. C. Exh. 28) that on January 19, 1968, the
allocated funds for the subject discriminatees were placed
into an account entitled "Forfeiture Suspense Account -
Allocated Funds." Bushkill testified that this was done on
advice of counsel because of the Labor Board charges.18
Thus, on January 19, 1968, the cotrustees took effective
action respecting the allocated funds of the alleged
discriminatees from the Midwest mine, placing such funds
in a suspense account because of Labor Board charges.' 9 I
believe it to be a reasonable inference, and, accordingly, I
find that had there not been such potential litigation, such
allocated funds would have been forfeited at that time.
Such forfeiture and resulting deprivation of rights under
"Amendment adopted April 26, 1966 (G.C. Exh 3, amendment to part
IV, section 3(j)).
"This was apparently computed in the following manner : the first
reallocation date following closure of the mine (on March 26, 1965) was
April 1, 1965; the second was April 1, 1966; the third was April 1, 1967.
"The exhibit reflects language that some forfeitures occurred "Orig. on
2nd Re-Alloc" or in some cases "on 3rd Re-Alloc." However, Bushkill
testified that "the second re - allot is April I, 1964 through March 31, '65
Third re-alloc is April I, '65 through March , '66." These periods would
clearly not provide for the three allocation dates required by the
abandonment amendment hereinabove referred to. Such amendment,
however, was not adopted until April 26, 1966 (made retroactive to March
15, 1965), so that such forfeitures as shown on the exhibit - if they ever in
fact occurred - were not valid and effective.
269
the plan is clearly an unfair labor practice where - as
here - the PMW refused to accept union dues "in the
nature of a service fee."20 It is true that in Bosse, the
initial rejection of payments by the Union was found to be
the operative act within the 10(b) period, and it appears
from the decision on appeal in l4-CB-1486 (Resp. Exh. 7
herein) that that charge (which was grounded upon
PMW's refusal to allocate funds for pension benefits for
Fontana, Justice, et al.) was barred on 10(b) grounds.
However, I agree with General Counsel's contention that
the initial rejection and ultimate forfeiture may each
constitute separate and independent unfair labor practices.
Indeed, there is language in Glass that the proof must
show "actual loss of rights or benefits." Clearly, such loss
is established by forfeiture which permanently deprives the
employees from participating in the plan's benefits.
Accordingly, I find that the aforesaid conduct by the
trustees on January 19, 1968, constituted an unfair labor
practice which properly gave rise to the later charges filed
herein within the 6-month period provided in Section
10(b).
D. Alleged Discriminatees at the Sahara Mines
Paragraph 11 of the complaint alleges, in substance,
that 12 employees formerly employed at the Sahara Mines
5 and 16 had their allocated funds forfeited on March 1,
1968, in violation of the Act. Detailing of the work
records of each such employee would not appear to be
warranted or necessary to this Decision. A brief summary
of the collective facts should suffice to posit the issue of
validity of their claim under the Act.
Thus, all the employees herein involved had worked at
Sahara Mine 5 or 16, and were covered by the contract
between the Association (on behalf of Sahara) and PMW,
hereinabove referred to. Each had funds allocated in his
behalf in the aforementioned plan, and each had been
employed in the industry for a sufficient length of time
prior to quitting his employment at Sahara to be eligible
for benefits. It is undisputed that, with one exception
(Donald Absher), each individual involved quit his
employment with Sahara prior to September 20, 1967,
and his membership in PMW was forfeited prior to said
date - usually because such employees became employed
at another mine where the employees were represented by
the UMW.21
The evidence shows that some of the employees,
following their quitting of employment at the Sahara mine
and joining the UMW attempted to pay cash dues to the
PMW. However, such tender was rejected substantially in
"The record herein shows that charges on behalf of Fontana, Justice,
and the Martmcic brothers were filed in Region 14 on January 9, 1967
(Cases 14-CB-1486 and 14-CA-4189) By letter dated July 7, 1967, the
Regional Director refused to issue a complaint in the matter, apparently
based upon the Board's decision in Glass Such refusal was upheld on
appeal to the General Counsel of the Board However, these rulings do
not, of course , foreclose the General Counsel from reconsidering the
matter based upon new or other evidence not previously considered, and
are certainly not binding upon the Trial Examiner or the Board
"See Local Union No 167, Progressive Mine Workers of America
(Peabody Coal Company), 173 NLRB No. 189
"September 20, 1967, is the 10(b) date as regards these individuals since
the first charge on their behalf in this proceeding was filed on March 20,
1968. The record shows that Donald Absher quit his employment on
October 3, 1967. The record further shows that another alleged
discrimmatee , Danny Winkleman , returned to Sahara 16 on January 3,
1968, and stayed until April 16, 1968, when he returned to a UMW mine
However, these exceptions do not affect the resolution of the ultimate issue
herein
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same manner as described in the cases of Wheeler
Justice and Charles Fontana, hereinabove. Other
employees, being aware of the circumstance that a miner
"couldn't belong to two unions at the same time," and
realizing that such a tender was futile, admitted that a
tender of such dues was never attempted nor was any
application made for benefits under the PMW fund.
It is undisputed that all allocated funds for the Sahara
employees involved herein were forfeited on March 1,
1968.
Respondent PMW, in its brief, argues that any rights
which may have accrued to these employees are barred by
Section 10(b) because the unfair labor practice giving rise
to the rights is the denial of membership in PM W
"immediately upon [such employee' s] going to work at a
mine not under contract with PMW." The Board rejected
a similar contention by this same Respondent in the Bosse
case , supra , finding that the critical 10(b) date was the
time when the Union rejected payments (dues) in the
nature of a service fee." While such rejection may have
given rise to legally cognizable rights (as discussed above),
I find that the actual forfeiture of the allocated funds on
March 1, 1968, thereby permanently depriving affected
employees of any rights to such allocated funds, also
constituted an unfair labor practice giving rise to new or
additional rights under the Act. Since this date occurred
within the 6-month statutory period, I deny the motion to
dismiss based on this ground.
Analysis and Concluding Findings
As previously noted , the Board , in the Glass case,2'
found that PMW was legally entitled to charge a service
fee to employees who no longer work in the unit, who
desire to participate in the plan ' s benefits. In the later
Bosse case," the Board found that PMW's "rejection of
said service fees and resulting deprivation of rights under
the plan " constituted restraint and coercion in
violation of Section 8(b)(I)(A) of the Act. However, in
Glass , the Board specifically left open ". . the further
question whether employees are in fact required , pursuant
to the plan , to maintain their membership in the Union,
or may have their membership forfeited in a manner
which would be violative of Section 8(a)(3) of the Act....
Our reason for not reaching it is that - apart from
references in the plan itself which tend to suggest the
possibility that such discrimination may occur - the
record furnishes no adequate proof to establish that the
eligibility status of individuals covered by the plan has
been forfeited for any reason other than failure to make
periodic payments to the Union.""
Here , I find , in agreement with the contentions of the
General Counsel , that the record here does establish that
"Respondents have entered into a contractually founded
welfare and pension plan which discriminates on the basis
of union membership,"" in a manner violative of Section
8(aX3) and 8(b)(2) of the Act. Indeed, in the instant case,
as in Bosse , the Respondent PMW seemed to ignore ".. .
the earlier argument [in Glass] that only a union service
fee was being required , [contending that] under the
Section 8(b)(I)(A) proviso, reserving to it the right to
`prescribe its own rules with respect to the . . . retention
of membership' in the Union, it had the right to terminate
11 173 NLRB No . 189 at fn. I.
"165 NLRB No. 31
"173 NLRB No. 189.
"165 NLRB No 31.
the membership of the two employees when they joined
the UMW and worked in a UMW mine."2' Thus,
Respondent PMW does not here urge that - consistent
with the Board's prior determinations -
employee-members (of PMW) who leave a PMW mine
and take up employment elsewhere in the coal industry
(either at a UMW mine or a nonunion mine) would be
entitled to submit union dues (service fees) to PMW in
order to participate in the plan. This because, upon such
occurrence, the employee would immediately lose his
membership in PMW and, according to the testimony of
Lester Boetta, secretary-treasurer of PMW, there is no
provision in the constitution and bylaws of PMW for it to
accept dues from an employee in either a UMW mine or
in a nonunion mine ." On the other hand, should such
employee-member accept employment outside the coal
industry, PMW would accept tender of union dues (service
fees) in the amount of $1.45 per month so long as that
situation remained extant. Also, should such
employee-member take up employment at another PM W
mine , his accumulated moneys would be transferred by the
trustees to the fund at the new mine, and he would lose
nothing in the process.
Thus, as respects employee-members of PMW who
leave a PMW mine (for reasons satisfactory to
themselves) and desire to remain in the coal industry
outside a PMW mine, opportunity to further participate
in the PMW plan is foreclosed solely because of lack of
membership in PMW. Such a practice of conditioning
postemployment participation in deferred employment
benefits upon membership (or lack thereof) in PMW,
under these circumstances, would seem patently to
encourage membership in PMW (and conversely to
discourage membership in UMW) by discrimination in
violation of Section 8(a)(3) and 8(b)(2) of the Act."
The same rationale applies to those alleged
discriminatees herein who left PMW mines to become
supervisory personnel at UMW mines . Their allocated
funds were also forfeited, and they were barred from
further participation in the plan because they lost their
membership in PMW. Yet, had they secured supervisory
positions outside the coal industry, they could have
retained their right of participation by paying the $1.45
per month dues. Thus, as General Counsel points out, "it
is apparent that supervisory status is not the basis for the
Respondent's discrimination, rather the discrimination is
brought about by loss of PMW membership."
In sum , I find and conclude that a preponderance of
the evidence in the record as a whole sustains the
contention of the General Counsel that the plan was
designed , in part, to encourage membership in the PMW,
and was so implemented as shown by the discriminatory
conduct herein, in violation of Section 8(a)(3) and 8(b)(2)
of the Act, and I will recommend an appropriate remedy."
"G.C. brief at p. 7.
"173 NLRB No 189, TXD.
"As pointed out heremabove, it is established that an employee at a
UMW mine must belong to the UMW and, ergo, may not belong to
PMW Accordingly, PMW obviously would refuse to accept dues from
such persons.
With respect to the nonunion mine, Boetta testified that a PMW
member who perchance secured employment there "would not be able to
pay dues until such time as there were granted charter , organize[d ], to put
it that , put under contract with our organization."
"See Local 140, Bedding. Curtain A Drapery Workers Union, etc (The
Englander Company ). 109 NLRB 326, 329.
"See Jandel Furs. 100 NLRB 1390, 1392; Local 140, Bedding , Curtain
'PEABODY COAL CO. 271
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the interstate
operations of the employers described in section 1, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
allocated to the discriminatees named in the section of this
decision entitled "The,'Remedy," the Respondents have
restrained and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8 (a)(1) and (b)(1)(A) of the Act, and have
discriminated to encourage or discourage membership in a
labor organization in violation of Section 8(a)(3) and
8(b)(2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Peabody Coal Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Progressive Mine Workers of America, District No.
1, and its affiliated Locals Nos. 201, 165, and 170, and
each of them, are labor organizations within the meaning
of Section 2(5) of the Act.
3. By maintaining and enforcing contractual provisions
which condition participation in employment benefits upon
the continued maintenance of membership in good
standing in Respondent PMW after the employment
relationship covered by the contract has ceased, and by
causing the cotrustees of the fund to forfeit funds
& Drapery Workers Union, etc. (The Englander Company), 109 NLRB
326, 329; Local 138, International Union of Operating Engineers (Nassau
& Suffolk Contractors' Assn.). 123 NLRB 1393, 1406; enfd . (in this
respect ) 293 F.2d 187, 198, (C.A. 2). In its brief, PMW argues that no
remedy should be accorded those alleged discriminatees who voluntarily
quit their employment at a PMW mine and took up employment at a
UMW mine. However , this point is essentially irrelevant to the issue
involved herein , since, if the employees had quit and transferred to a PMW
mine , they would have been entitled to have their allocated funds
transferred to their new employment . In short, it was the nature and
character of their successor employment (which in turn dictated whether
they could remain members of PMW) rather than the voluntarism of
leaving their employment that determined whether they could continue to
participate in the plan.
Also, I find that the failure of some of the discriminatees to file claims
for benefits does not bar them from remedy herein since the record amply
sustains the General Counsel's contention that these employees knew,
based upon PMW's constitution and past practices , that it would have
been a futile gesture to file such a claim.
Finally, PMW argues that no sanctions under the particular sections of
the Act here involved should be applied because "the coal industry is
unique...." Without detailing the argument made , it suffices to say that
it is addressed to the wrong forum . Congress has, in some instances,
excepted certain industries from the proscriptions of particular sections of
the Act (cf. Section 8(e) and (f)), but I find no reference to an exception
for the coal industry.
THE REMEDY
Having found that the Respondents have violated
various provisions of the Act by their maintenance and
enforcement of contractual provisions which condition the
grant of certain employment benefits upon the continuous
maintenance of membership in PMW after the
employment relationship has ceased, my recommended
order will provide that the Respondents cease and desist
therefrom and from engaging in any like or related
violations of the Act.
I have found that the Respondents PMW and Peabody,
through their agents, the cotrustees of the fund, illegally
forfeited the allocated funds in the welfare and retirement
plan for the following employees of Peabody: Charles
Robert Fontana, Wheeler W. Justice, John and Lawrence
Martincic, and Hubert Furlong. I will recommend that the
Respondents, through their agents the cotrustees, reinstate
such allocated funds in the respective individual accounts
,of the above-named employees. In the same manner, the
Respondent PMW (in Case 14-CB-1656) shall cause its
agents the cotrustees to reinstate the individual allocations
of Charles Borum, Larry Prather, Donald Absher, Jim
Mills, Dayton Bennett , Clifford Smith, Darold L.
Winkleman, Edward W. Hill, Roy D. Greer, Danny
Winkleman, Paul Holland, and John Millspaugh, which
were forfeited illegally.
I agree with the contention of General Counsel that
such restoration of allocated funds shall be made without
the necessity of tender by the individual of service fees for
past periods since Respondent PMW, by refusing to
accept such service fees, waived its right to demand same.
Nevertheless, such allocated funds shall have added the
normal interest payments and accumulated credits which
would have normally flowed had such tenders been
accepted and such allocated funds not been forfeited.
Upon the foregoing findings and conclusions and the
entire record herein, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
[Recommended Order omitted from publication.]