United Mine Workers Of America, Local 1058 (Beth Energy Corp.)

National Labor Relations Board - Board Decisions

Aug 9, 1990

299 N.L.R.B. 389 (N.L.R.B. 1990)

MINE WORKERS LOCAL 1058 (BETH ENERGY) 389
United Mine Workers of America, Local 1058 (Beth
Energy Corporation) and Dowl Johnston
United Mine Workers of America, Local 1501 and
Dowl Johnston -
United Mine Workers of America, Local 1570 and
Dowl Johnston
United Mine Workers of America, Local 1829 and
Dowl Johnston
United Mine Workers of America, Local 1938 and
Dowl Johnston
United Mine Workers of America, Local 1949 and
Dowl Johnston
United Mine Workers of America, Local 9909 and
Dowl Johnston
United Mine Workers of America, District 31 and
Dowl Johnston
United Mine Workers of America, International
Union and Dowl Johnston. Cases 9-CB-7024-
1, 9-CB-7024-2, 9-CB-7024-3, 9-CB-7024-4,
9-CB-7024-5, 9-CB-7024-6, 9-CB-7024-7, 9-
CB-7024--8, and 9-CB-7096
August 9, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
On October 25, 1989, Administrative Law Judge
Stephen J Gross issued the attached decision The
General Counsel filed exceptions and a supporting
bnef, 1 and the Respondents filed an answenng
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
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, findmgs, 2 and
, In his brief, counsel for the General Counsel moved that the record
be reopened and a letter dated April 20, 1989, to Dowl Johnston from
the United Mine Workers International Executive Board Trial Commis-
sion be received Into evidence The letter was included with the General
Counsel's brief as Attachment A The Respondents filed a motion to
stnke Attachment A of the General Counsel's brief They contend that
the April 20, 1989 letter had been sent long before the judge issued his
October 25, 1989 decision, that counsel for the General Counsel had
ample opportunity to move to reopen the record before the judge (who
could appropnately have ruled on the document's admissibility) but failed
to do so, and that Attachment A is not a part of the record and cannot
provide a basis for any decision by the Board
We find that Attachment A of the General Counsel's brief is not a part
of the record in this proceeding See Sec 102 45(b) of the Board's Rules
and Regulations Nor does It constitute newly discovered evidence Ac-
cordingly, we deny the General Counsel's motion to reopen the record
and grant the Respondents' motion to strike
2 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cif
conclusions only to the extent consistent with this
Decision and Order
The judge found that seven United Mine Work-
ers Association (UMWA) members, each from a
different local union and each an officer of his re-
spective local, filed intraumon charges against
Dowl Johnston because Johnston testified on
behalf of his employer and against another union
member at an arbitration hearing The judge fur-
ther found that, assuming that the seven were
acting as agents of their local unions, the Respond-
ent Locals violated Section 8(b)(1)(A) of the Act
through this action 3 He concluded, however, that
the seven members were acting in their individual
capacities when they signed the charges and that
the locals accordingly did not violate the Act in
any respect We disagree with the judge's conclu-
sion that the seven members were not agents of
their local unions in filing the charges, and there-
fore find that the Respondent Locals violated Sec-
tion 8(b)(1)(A) of the Act
The seven signatories of the charges held elec-
tive office in their local unions 4 Six of the seven
testified that they were president of their locals,
and one testified that he was a member of his
local's Contract Committee and chairman of its
Mine Committee The Mine Committee is responsi-
ble for grievance handling and for administering
and enforcing collective-bargaining agreements
Presidency is the highest ranking position in each
local All signatories were members of their local's
executive board 5
The Board regularly finds elected or appointed
officials of an organization to be agents of that or-
ganization Although the holding of elective office
1951) We have carefully examined the record and find no basis for re-
versing the findings
3 The Respondents filed no exceptions to the judge's findings with
regard to the motivation of the signatones However, we note that the
Respondents claim in their brief that the charges were filed not because
Johnston testified against another union member, but because Johnston's
testimony was evidence of and in furtherance of a plot between Johnston,
another union member, and Beth Energy to get Moore, the subject of the
arbitration, fired We agree with the judge's finding that, for each of the
seven signing the charges, Johnston's testimony at the arbitration was a
reason for the charges In this regard, the Respondents did not show that
the charges would have been filed against Johnston even absent his arbi-
tration testimony Accordingly, we find that the judge's conclusion that
the charges, if filed by union agents, were unlawful is consistent with
Wright Line, 251 NLRB 1083 (1980), enfd on other grounds 662 F 2d 899
(1st Car 1981), cert denied 455 US 989 (1982) See Auto Workers Local
2017 (Federal Mogul), 283 NLRB 799 (1987), Toledo World Terminals, 289
NLRB 670, 674 (1988)
4 Indeed, the letter bringing charges against Johnston specifically states
"we, the following named members and officers, do hereby charge Dowl
Johnston"
a One signer, John Pennington, testified that he is the president of
Local 1829 We note, however, that District 31 addressed Pennington as
recording secretary of that local in a letter dated May 9, 1988 It is there-
fore not clear whether Pennington was his local's president at the time he
signed the intraumon charges In any event, recording secretary is also an
elective local office and a member of the local's executive board
299 NLRB No 47
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not mandate a finding of agency per se, it is
persuasive and substantial evidence that will be de-
cisive in the absence of compelling contrary evi-
dence 6 We find no compelling contrary evidence
here
The judge recognized a number of factors sug-
gesting that the signatories were agents of their re-
spective locals Thus, he noted that the letter
bringing the charges avers that the charges are
being brought by union officers, that the aggrega-
tion of seven officers suggests that the act of filing
of internal union charges amounted to action by
the local unions whereas the filing of charges by
only one officer might not carry that implication,
and that six of the seven signatories held the high-
est ranking position in their locals He found these
factors outweighed, however, by the following
countervailing considerations any member may file
intraumon charges, the charges do not indicate the
local union position held by the signatories and are
signed as "the undersigned Local Union Members
of District 31", there is no evidence that the mem-
bership of the local unions either authorized or
ratified the action and several of the signatories tes-
tified that they did not consult their constituents re-
garding the action, and the charges involve actions
by Johnston regarding matters associated with Beth
Energy Mine #81 although none of the Respond-
ent local unions of which the signatories were offi-
cers have jurisdiction over that mine The judge
particularly noted that, because the signatories'
local unions had no direct connection with the dis-
pute among Johnston, Moore, and Beth Energy,
there was no reason for either the signatories or
their locals to conclude that the signatories' acts of
signing and filing the charges would be seen as ac-
tions on behalf of the locals
Although all the factors discussed by the judge
are relevant to determining agency, we do not find
that those factors compel overriding the persuasive
and substantial evidence of agency derived from
the signatories' holding of elective office within
their locals These officers had apparent authority
to act for their locals, and they were acting within
the scope of that apparent authority 7 This is not a
case where the officers were engaged in an activity
unrelated to their union positions, for they them-
selves stated that they were bringing the charges as
members "and officers" The charges thus clearly
invoke the official position and capacity of the sig-
8 Electrical Workers IBEW Local 453 (National Electrical), 258 NLRB
1427, 1428 (1981), Penn Yan Express, 274 NLRB 449 (1985)
7 Whether their members had actually authonzed the officers' actions
is not determinative, for Sec 2(13) of the Act provides "In determining
whether any person [acted] as an agent the question of whether the
specific acts performed were actually authorized or subsequently ratified
shall not be controlling"
natories Further, both District 31 and the Interna-
tional Union Trial Commission treated the charges
as having been filed by the officers in their official
positions as representatives of their Respondent
locals The letters sent to each of the signatories
with respect to the processing of the charges are
addressed with the name, position, and respective
local involved Accordingly, we find the mtraunion
charges filed by the seven officers attributable to
their respective locals and that the Respondent
Locals violated Section 8(b)(1)(A) of the Act by
bringing charges against Johnston because of his
protected conduct testifying at the arbitration pro-
ceeding
We agree with the judge, however, that neither
District 31 nor the International Union violated the
Act by processing the charges, referring them, or
holding hearings with respect to them, because no
members of the District's executive board or the
International Union Trial Commission knew or
should have known that a basis of the charges
against Johnston was his testimony at the arbitra-
tion hearing The charges did not on their face
refer to Johnston's testimony before the arbitrator,
alleging instead that "Dowl Johnston did conspire
and work with the management of Beth Energy's
#81 mine in an attempt to have mine and safety
committeeman of Local 2059, Benny Moore, re-
moved from office and subsequently terminated
from his employment "8 Further, the International
Union Trial Commission was specifically requested
not to consider Johnston's testimony before the ar-
bitrator in as deliberations We therefore affirm the
8 In finding that District 31 officials did not know and should not have
known that a basis of the charges was Johnston's protected conduct, the
judge observed that the record does suggest that District 31's executive
board member Stephen Webber knew that to be the case Yet he found
that because Webber absented himself from the meeting at which the
charges were considered by the executive board, and because Webber
gained this knowledge from his personal relationship with Johnston and
not from statements made by parties in the course of a union investiga-
tion of the charges, Webber's "suggested" knowledge was not attributa-
ble to District 31 We disavow the judge's implication that Webber's
knowledge of the basis of the charges against Johnston would not be Im-
puted to District 31 for those reasons
We find, rather, that Webber did not know that the charges were
based on Johnston's arbitration testimony Johnston testified that Webber
told him in a telephone conversation predating the arbitration hearing
that he, Webber, was calling at Distnct 31 President Eugene Claypole's
request, and that if Johnston testified "the District and some local offi-
cials, namely Shiflett and one of the local presidents, were going to file
some charges against me" Webber demed that Claypole asked him to
call Johnston and denied saying anything about charges being filed
against Johnston Webber tesified that Johnston told him that he heard
that if he testified the District was going to file charges against him, but
Webber responded that he had not heard that and knew nothing about It
Webber further testified that he had no knowledge that anybody was
threatening Johnston with charges The judge credited Webber We do
not find Johnston's suggestion to Webber, that the Distnct might file
charges against him if he testified, establishes that Webber knew that the
charges later filed by the Respondent Locals were based on Johnston's
testifying at the arbitration heanng
d, fi
MINE WORKERS LOCAL 1058 (BETH ENERGY) 391
judge's dismissal of the complaint allegations as to
District 31 and the International Union
CONCLUSIONS OF LAW
1 By filing mtraumon charges against member
Dowl Johnston because he testified at an arbitra-
tion proceeding, the Respondents, United Mine
Workers of America, Local 1058, Local 1501,
Local 1570, Local 1829, Local 1938, Local 1949,
and Local 9909, restrained and coerced Johnston in
the exercise of the rights guaranteed him by Sec-
tion 7 of the Act, and thereby engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(b)(1)(A) and Section 2(6) and
(7) of the Act
2 The General Counsel has failed to prove that
United Mine Workers of America, District 31, and
the International Union violated Section 8(b)(1)(A)
of the Act
REMEDY
Having found that the Respondent Locals have
engaged in unfair labor practices in violation of
Section 8(b)(1)(A) of the Act, we shall order them
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act
We shall require the Respondent Locals to notify
District 31 and the International Union, United
Mine Workers of America, that they are withdraw-
ing the charges that they filed against Dowl John-
ston, and to remove any records that they may
have of the charges and notify Johnston in writing
that this action has been taken We shall also order
the Respondent Locals to make Johnston whole,
with interest as provided in New Horizons for the
Retarded, 283 NLRB 1173 (1987), for any losses he
may have suffered by reason of the charges against
him Any backpay that may be due shall be com-
puted on a quarterly basis as prescribed in F W
Woolworth Co, 90 NLRB 289 (1950)
ORDER
The National Labor Relations Board orders that
the Respondents, United Mine Workers of Amer-
ica, Local 1058, Local 1501, Local 1570, Local
1829, Local 1938, Local 1949, and Local 9909,
their officers, agents, and representaives, shall
1 Cease and desist from
(a) Filing mtraumon charges against members be-
cause they testify at arbitration proceedings
(b) In any like or related manner restraining or
coercing members in the exercise of the rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Immediately notify District 31 and the Inter-
national Union, United Mine Workers of America,
that they are withdrawing the charges filed against
Dowl Johnston because of his having given testi-
mony at an arbitration proceeding
(b) Remove all records of the charges against
Dowl Johnston and notify him in writing that this
action has been taken
(c) Make Dowl Johnston whole, with interest as
provided in the remedy section of this decision, for
any losses he may have suffered by reason of the
charges against him
(d) Post at their business offices and other places
where notices to their members are customarily
posted copies of the attached notice marked "Ap-
pendix "9 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being
signed by the Respondents' authorized representa-
tives, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material
(e) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Beth
Energy Corporation, if willing, at all places where
notices to employees are customarily posted
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply
IT IS FURTHER ORDERED that the complaint alle-
gations with respect to District 31 and the Interna-
tional Union are dismissed
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT file mtraumon charges against
members because they testify in arbitration pro-
ceedings
392 • DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT 111 any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL notify District 31 and the International
Union, United Mine Workers of America, that we
are withdrawing the charges filed against Dowl
Johnston because of his having given testimony in
an arbitration proceeding.
WE WILL make Dowl Johnston whole, with in-
terest, for any losses he may have suffered by
reason of the charges against him.
UNITED MINE WORKERS OF AMER-
ICA, LOCAL 1058
UNITED MINE WORKERS OF AMER-
ICA, LOCAL 1501
UNITED MINE WORKERS OF AMER-
ICA, LOCAL 1570
UNITED MINE WORKERS OF AMER-
ICA, LOCAL 1829
UNITED MINE WORKERS OF AMER-
ICA, LOCAL 1938
UNITED MINE WORKERS OF AMER-
ICA, LOCAL 1949
UNITED MINE WORKERS OF AMER-
ICA, LOCAL 9909
Damon W. Harrison Jr., Esq., for the General Counsel.
George Davies, Esq., of Washington, D.C., for United
Mine Workers of America, International Union.
Barbara Evans Fleischauer, Esq., of Fairmont, West Vir-
ginia, for United Mine Workers of America, District
31.
James Haviland, Esq. (McIntyre, Haviland & Jordan), of
Charleston, West Virginia, for United Mine Workers
of America, Local Unions 1058, 1501, 1570, 1829,
1938, 1949, 9909.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. Dowl
Johnston is a coal miner employed by Beth Energy Cor-
poration in its 81 mine. Johnston is a member of UMWA
Local 2059 and a member of the executive board of
UMWA District 31. Persons holding elected positions in
seven local unions in District 31 filed intraunion charges
against Johnston. The constitution of the UMWA Inter-
national Union (the International) provides that intraun-
ion charges against members of a UMWA district's exec-
utive board are to be heard by the district rather than by
the member's local union. Thus the charges against John-
ston came before District 31's executive board. But that
executive board could not muster a quorum to hear the
charges. District 31 accordingly referred the charges to
the International which, in turn, appointed a trial com-
mission of its executive board to hear the charges. The
trial commission took evidence, but has not issued a deci-
sion.
According to the General Counsel:
1. The persons who filed the intraunion charges
against Johnston were acting as agents of their respective
locals, and they filed the charges because Johnston testi-
fied against a fellow UMWA member at an arbitration
hearing. The local unions thereby violated Section
8(b)(1)(A) of the National Labor Relations Act (the
Act).
2. Prior to the filing of charges, an agent of District
31, Stephen Webber, threatened Johnston that the Dis-
trict would file internal union charges against Johnston if
Johnston testified at an arbitration hearing. District 31
thereby violated Section 8(b)(1)(A).
3. District 31 violated Section 8(b)(1)(A) by processing
the charges and by referring the charges to the Interna-
tional's executive board.
4. The International violated Section 8(b)(1)(A) when
its executive board processed the charges and when the
trial commission processed and conducted a hearing on
the charges.1
Background
Dowl Johnston and his friend and coworker in mine
81, Dale Woodrum, had a running feud with follow
member of Local 2059 and coworker Benny Moore. In
January 1988 Johnston assisted Woodrum in filing in- .
traunion charges against Moore. (All dates referred to
occurred in 1988.) The charges alleged that Moore had
embezzled union funds. The trial board dismissed the
charges on February 29. The charges and trial were
much talked about among miners in the area, and some
came away thinking, rightly or wrongly, that Woodrum
and Johnston had concocted the charges as a way of
forcing Moore out of his office, chairman of Local
2059's safety committee.
In the meantime, Woodrum and Johnston, on the one
hand, and Moore, on the other, nearly came to blows. •
According to an arbitrator's description of the incident
(and I make no findings about the accuracy of that
report), it began when Woodrum was taking a cigarette
break in the mine's lamp house. The lamp house had.
long been off limits for smoking because a tank of gaso-
line had been stored there. But the tank had been re-
moved. Moore saw Woodrum smoking, but didn't notice .
that the gasoline tank was no longer there. Moore told
Woodrum to put out his cigarette. Woodrum not only
refused, he waved a lighted cigarette lighter around, all
without mentioning that gasoline was no longer being
stored in the lamp house. The result: a confrontation that
produced streams of obscenities. Things calmed down.
I Dowl Johnston filed unfair labor practice charges against the Re-
spondent local unions and against District 31 on June 7, 1988, and against
the International on September 19, 1988. A consolidated complaint issued
on July 15, 1988, and was amended on October 28, 1988. The Respond-
ents have stipulated that Johnston's employer, Beth Energy, is an em-
ployer engaged in commerce within the meaning of Sec. 2(2), (6), and (7)
of the National Labor Relations Act (the Act), and that the Respondents
are labor organizations within the meaning of the Act (see Tr. 9-10). I
heard the case in Summersyille, West Virginia, on February 9 and 10.
The General Counsel has filed a brief and the Respondents have filed a
joint brief. (On March 21, 1989, the Respondents filed a motion for leave
to substitute copies of joint brief. The motion is granted.)
MINE WORKERS LOCAL 1058 (BETH ENERGY) 393
until Johnston arrived on the scene At that point more
obscenities flowed and an afterwork fistfight was dis-
cussed
According to Johnston's testimony in this proceeding,
Moore threatened to attack him in the mine (that is,
without waiting to get off work), and that led Johnston
to complain to Beth Energy's management, demanding
that the Company do something about Moore
The Company did, suspending Moore preparatory to
firing him District 31, in response, filed a grievance The
matter went to a hearing before the arbitrator on March
8 and 9 The Company called Johnston and Woodrum as
witnesses, and both testified against Moore
Even before the arbitration hearing began some
UMWA members had developed the suspicion that
Woodrum and Johnston had deliberately set up Moore—
that Johnston and Woodrum knew that Moore would
lose his temper in response to Woodrum's smoking in the
lamp house and that Johnston and Woodrum did that,
again, in order to force Moore out of the mme safety
chairmanship (I emphasize that I am referring to beliefs
only I make no finding about whether those beliefs were
accurate )
The arbitrator issued his decision on March 20 Those
who felt that Johnston and Woodrum set up Moore read
the decision as confirming their position The decision
concludes, in part, that
1 When Moore asked Woodrum to stop smoking,
Moore was acting "in furtherance of his duties" as safety
committee chairman
2 "The antagonistic, hostile, obscene, abusive, degrad-
ing language occurred not only from the mouth of
Moore, [but] occurred also from the mouth of Woodrum
Woodrum was heard to say many of the obscenities"
3 The shouting match, "while started by Moore, was
most seriously perpetrated by Woodrum who did [not]
tell Moore of the removal of the drum, and Woodrum
received no discipline whatsoever but Moore did"
4 As for the fracas between Johnston and Moore,
"Johnston was the aggressor Johnston received no disci-
pline whatsoever but Moore did Again, evenhanded
treatment was not shown by the management of the
mine"
5 "Woodrum and Johnston took advantage of a per-
sonality trait of Moore's " (That is, Moore's problem in
controlling his temper )
6 Johnston and Woodrum "were at least as culpable
as Moore They created the scene at the facility just as
much as Moore did Because the company did not
attempt to evenhandedly discipline all three, the dis-
charge cannot stand"
The arbitrator's decision became hot news throughout
District 31 Then, on April 11, seven UMWA members,
each from a different local union and each an officer of
his respective local, signed mtraumon charges against
Johnston The charges alleged that Johnston violated his
oath as a UMWA member and officer in that
Dowl Johnston did conspire and work with the
management of Beth Energy's #81 mine in an
atempt to have a mine and safety committeeman of
Local 2089, Benny Moore, removed from office and
subsequently terminated from his employment as
Beth Energy Mine #81 The above violations and
actions occurred in January 1988 and continued
through March 9, 1988 2
Why the Persons Who Signed the Intraumon
Charges Against Johnston did so
" The charges were signed by Carlo Tarley, Charles
Chefren, Larry Kmsell, John Pennington, James Shiflett,
Allen Reeves, and Thomas Turpm To some extent their
reasons for wanting to bring charges against Johnston
varied But for each of them, Johnston's testimony at the
arbitration hearing was a reason for the charges
Carlo Tarley
Tarley is president of UMWA Local 1501 Tarley
drafted the charges because he believed that Johnston
and Johnston's employer, Beth Energy, had conspired to
rid themselves of Benny Moore Tarley assumed that
Beth Energy would naturally want to get rid of Moore
because Tarley believes that all mining companies dislike
members of the union safety committee As for why
Johnston wanted to have Moore fired, Tarley thought
that was because Johnston disliked Moore and because
he wanted the chairmanship of the mine safety commit-
tee
Tarley first became suspicious about Johnston in late
February or early March That's when the mtraumon
embezzlement case against Moore ended and when
Tarley heard rumors that that case had begun when Beth
Energy had secretly and imporperly let Johnston look at
Moore's pay record
Then, after the incident between Moore, Johnston, and
Woodrum at the mine, Tarley heard another rumor that
Johnston and Woodrum had deliberately staged the inci-
dent knowing that Moore was easy to provoke and
knowing that Moore had been advised that another out-
burst would mean his discharge On top of that, in fur-
therance of the conspiracy Johnston testified against
Moore at the arbitration hearing
The last straw was the arbitrator's decision As Tarley
understood it, it supported what Tarley had heard about
Johnston and Woodrum setting up Moore Tarley also
felt that the decision supported his view that Beth
Energy and Johnston were in cahoots After all, even
though, according to the arbitrator, Johnston and
Woodrum were at least as guilty as Moore, the Company
chose to discipline only Moore, not Johnston or
Woodrum
Tarley thus concluded that the following events were
all integral parts of the Johnston/Woodrum-Beth Energy
conspiracy the embezzlement case against Moore (in-
cluding Johnston's rumored secret examination of
Moore's pay record), Woodrum's and Johnston's provo-
cation of Moore, and Woodrum's and Johnston's testified
2 According to the charges, those alleged actions by Johnston violated
Johnston's UMW A membership oath ("I promise to help all brothers
in adversity"), the oath of office Johnston took when he became a
member of District 31's executive board, and Johnston's constitutional
"obligation to aid every other member"
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
against Moore at the arbitration hearing 3 And it is those
events that Tarley had in mind when he drafted and
signed the intraumon charges agamt Johnston (Tarley
aimed his charges only at Johnston, not at Woodrum
too, because Johnston was a union official, Woodrum
was not )
Charles Chefren
Chefren is president of UMWA Local 9909 Chefren's
decision to file charges against Johnston stemmed almost
entirely from Chefren's conversations with Tarley, and I
accordingly conclude that Chefren's motives in signing
the charges were the same as Tarley's
James Shiflett
Shiflett is president of UMWA Local 1938 Like
Tarley, Shiflett had heard that Johnston "wanted the po-
sition that Benny [Moore] held" and that Johnston had
"drummed up" the embezzlement charges against Moore
That led Shiflett, in early March, to inquire into the
Moore discharge case and to conclude that Johnston and
Woodrum were responsible for the incident that led to
the Company's action against Moore Shiflett concluded
that if Johnston testified against Moore, he would file in-
traumon charges against Johnston In Shiflett's view, the
arbitrator's decision confirmed that Johnston was "the
aggressor" To Shiflett it was altogether impermissible
for Johnston, who was a union officer sworn to protect
the jobs of brother UMWA members, to have instigated
an incident that led to the discharge of a fellow mine
worker and then to have testified against him
John Penmngton
Penmngton testified that he is president of UMWA
Local 1829 (There is some dispute about that, which
will be touched on again below ) Pennington signed the
charges against Johnston for two reasons One was that
Johnston testified against Moore in circumstances in
which the Company's case against Moore was based
largely on Johnston's testimony The second was that, in
Penmngton's view (which, in turn, stemmed from a con-
versation that Pennington had with Moore) Johnston and
Woodrum had instigated the incident that led to Beth
Energy's action against Moore Under these circum-
stances, Pennington "didn't feel that [Johnston] acted as
a union officer and member"
Thomas Turpm
Turpin is president of UMWA Local 1058 Turpm had
been on the UMWA trial board that considered the em-
bezzlement charges against Moore and had become sus-
picious there about Johnston's actions regarding Moore
Then, when Turpm became involved in the grievance of
Moore's discharge, Turpm's suspicions about Johnston
deepened because Beth Energy's managers "based their
sole case" on the testimony of Johnston and Woodrum
3 At a hearing of an International trial commission in August Tarley
urged the commission not to take into account Johnston's testimony at
the arbitration hearing But that was after Johnston had filed charges and
a complaint had Issued
As far as Turpin was concerned, the arbitrator's decision
wrapped things up It showed, thought Turpm, that
Johnston had "conspired" with the Company to get
Moore discharged Turpm believed that Johnston's testi-
mony was an integral part of that conspiracy Under the
circumstances, Johnston's testimony amounted to a viola-
tion of the UMWA contitution, thus warranting charges
to be brought against Johnston
Larry Kmsell
Knisell is president of UMWA Local 1570 Kmsell,
like Turpm, had been on the UMWA trial board that
considered the embezzlement charges against Moore and
had become suspicious there about Johnston's , actions re-
garding Moore In part, because of his discussions with
Turpm, when Knisell read the arbitrator's decision he
concluded that "there was a conspiracy" between John-
ston and Beth Energy Johnston's testimony as such was
not actionable But, Kmsell believed, that testimony was
part of a scheme by the Company and Johnston to get
nd of Moore and was accordingly a violation of John-
ston's oath as a member the UMWA
Allen Reeves
Reeves is chairman of Local 1949's mine committee
After reading the arbitrator's decision and talking to
Tarley, Reeves concluded that Johnston had "secretly
and maliciously conspired against Benny Moore to get
him discharged" "[T]hat's a very serious offens" under
the UMWA constitution, and, Reeves believed, John-
ston's testimony was in furtherance of that conspiracy
Did the Local Unions Violate Section 8(b)(1)(A)
The Protection Accorded Witnesses at
Arbitration Hearings
Assuming, for the moment that Tarley, Chefren, Kru-
se% Pennington, Shiflett, Reeves, and Turpm were
acting as agents of their local unions, then, in my view,
the Respondent Locals violated Section 8(b)(1)(A) (I
will hereafter refer to those seven persons as the signatO-
nes )
The point is that a union may not discipline or even
try a member for the member's participation in the
grievance/arbitration process E g, Cement Workers D-
357 (Southwestern Portland Cement), 288 NLRB 1156
(1988) Yet for each of the signatories, Johnston's testi-
mony was one of the acts that formed the bases for the
charges
The evidence shows that the signatories understood
that mtraumon charges may not lawfully be filed against
a fellow union member because he or she testified against
another union member And, indeed, from the viewpoint
of the signatories, that is not why they filed their
charges Rather, as the signatories saw things, Johnston's
testimony at the arbitration hearing was evidence of and
in furtherance of a plot between Johnston, Woodrum,
and Beth Energy to get Moore It was Johnston's partici-
pation in that plot that was the reason for the charges
I recognize the argument that the Board should not
stand in the way of a union's effort to discipline one of
MINE WORKERS LOCAL 1058 (BETH ENERGY) 395
its own officers who, some of its members honestly be-
lieve, has subverted the arbitration process in order to
gain his own ends at the expense of a union brother For
the Board to do so, in fact, must seem to some to be al-
together outrageous
But it will always be possible, whenever a union
member testifies at an arbitration hearing in a manner
contrary to a union's position, for a union or any of its
members to concoct an mtraunion charge alleging that
the witness subverted the arbitration process for mali-
cious reasons Thus to reasonably protect the arbitration
process, the rule has to be that unions may in no way
discipline a member, or put the member on trial, because
of the member's testimony at an arbitration hearing, no
matter what motive may be ascribed to that member See
Teamsters Local 557 (Liberty Transfer), 218 NLRB 1117
(1975) The way for a union to test its belief about a wit-
ness' false testimony before an arbitrator is by participat-
ing in the arbitration hearing, not by prosecuting intraun-
ion charges against the witness
Did the Persons Who Signed the Charges do so as
Agents of the Respondent Locals
That brings us to the question of whether the signato-
ries were acting as agents of their respective locals when
they did so 4
Certainly there are some considerations that suggest
that the signatories were agents within the meaning of
the Act
To begin with, the letter bringing charges against
Johnston (G C Exh 3) begins
Pursuant to Article 16 of the UMWA International
constitution we, the following named members
and officers, do hereby charge Dowl Johnston, a
Subdistrict 4 Board Member of District 31, with the
following violation [Emphasis added ]
Second, six of the seven signatories were presidents of
their local unions, and all seven were officers 5 It is fair
to argue, it seems to me, that this aggregation of local
union officers suggests that the act of filing internal
union charges amounted to action by the local unions,
even if the charges would have been deemed to have
been filed by an individual in a nonrepresentative capac-
ity had only one of the seven filed the charges
Third, that fact that six of the seven signatories are
presidents of their locals is significant in that the presi-
dency is the highest ranking position in each of the
locals
On the other hand there are considerations pointing in
the other direction
First, any member of the UMWA may file intraumon
charges No official position is required Thus the act of
4 According to par 6 of the complaint, the signatories filed internal
union chargeA against Johnston "on behalf of" their local unions The sig-
natories all deny that, claiming that they filed the charges in their indi-
vidual capacities
5 As noted earlier, Reeves was chairman of his local's mine committee
(in charge of processing grievances at their early stages) The record is
not entirely clear about Penmngton's position But he did testify (at Tr
310) that he is president of his local
filing intraumon charges, standing alone, says nothing
about the involvement of a local union
Second, and most importantly, when the signatories
signed the charges, they did so only as "the undersigned
Local Union Members of District 31 " The charges do
not indicate the positions that the signatories held with
their local unions In fact the charges do not even indi-
cate the local union affiliation of any of the signatories
Third, there is no evidence that the membership of the
local unions, or any of their governing bodies (such as
their executive committees), either authorized the signa-
tones to sign or ratified the signatories' actions after the
fact (In fact, there is 'affirmative evidence to the effect
that there were no such authorizations or ratifications )
And fourth, the charges involve actions by Johnston
regarding matters associated with Beth Energy Mine
#81 None of the local unions of which the signatories
are officers have jurisdiction over that mine, and neither
Johnston nor Moore is a member of any of those locals
Because of these circumstances, and because the signs-
tones' local unions had no direct connection with the
dispute between Johnston, Moore, and Beth Energy,
there was no reason for either the signatories or , their
locals to conclude that the signatories' acts of signing
and filing the charges would be seen as actions on behalf
of the locals See Service Employees Local 87 (West Bay
Maintenance), 291 NLRB 82 (1988) Mine Workers
(Fletcher Mining), 271 NLRB 20, 23 (1984)
My conclusion, therefore, is that the signatories were
acting in their individual capacities when they signed the
charges, not on behalf of their locals, and that, accord-
ingly, the local unions did not violate the Act in any re-
spect
The Unions and the General Counsel each point to
other facts that, they claim, amount to evidence relevant
to whether the mtraunion charges were filed on behalf of
the local unions But it doesn't seem to me that any of
these additional matters make much difference, one way
or another
The additional evidence that comes closest to making
a difference about local union involvement is testimony
by General Counsel witness Walter Seabolt According
to Seabolt, in early March, Shiflett (who later did sign
the charges) said to Seabolt :`I can tell you one thing
if Dowl Johnston and those men testified against
Benny [Moore] in that arbitration my local and four
and five other locals up here are going to bring charges
against them" Seabolt was a convincing witness But
Shiflett denied Seabolt's testimony And given how easy
it would have been for Seabolt to have misheard Shiflett
(who might have said, for instance, "people from my
local and four or five others"), I am unwilling to credit
Seabolt over Shiflett Moreover even if Seabolt's testimo-
ny were wholly accurate (1) Shiflett's statement to Sea-
bolt was in the course of a private telephone conversa-
tion, and there is no evidence that Seabolt told others
that Shiflett said that local unions were going to file
charges against Johnston, (2) Shiflett made his remark a
relatively long time (a month and a half) before the
charges were filed, and (3) the context in which Shiflett
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made his remarks was not one in which Shiflett was
likely to have been focusing on precision of language 6
' Did District 31 Violate Section 8(b)(1)(A)
The General Counsel claims that District 31 violated
Section 8(b)(1)(A) (1) when an officer of the Distnct
told Johnston that the District would file charges against
Johnston if Johnston testified against Moore, and (2)
when District 31 processed the charges against Moore
The Alleged Threat
Eugene Claypole is the president of District 31 Ste-
phen Webber is a member of District 31's executive
board and is a fnend of Johnston's Johnston and Webber
agree that Webber called Johnston a few days before the
arbitration hearing and tried to talk Johnston out of testi-
fying According to Johnston, Webber said that he was
calling at Claypole's request, and that "if I did testify
the Distnct and some local officials, namely Shiflett
and one of the local presidents, were going to file some
charges against me"
Webber denied saying anything about charges being
filed against Johnston, and Webber's demeanor was Just
as credible as Johnston's Moreover I find it unlikely that
Webber would have spoken about charges against John-
ston being filed by the District (as opposed to charges
being filed in the District)
I accordingly will recommend the dismissal of the alle-
gation that District 31 threatened to file charges against
Johnston
District 31's Processing of the Charges
Against Johnston
In early May, District 31's secretary-treasurer, John
Darcus, received the charges against Johnston Darcus
sent the charges on to Claypole (District 31's president)
Claypole, in turn, wrote to Johnston and the signatories,
advising that the charges against Johnston would be
heard by the District's executive board on June 2
Johnston did not show up for the June 2 meeting of
the executive board And as it turned out, District 31 did
not hold any hearings on the matter What happened was
that of the executive board's 14 members, 8 were absent
Among those absent Webber—who had urged Johnston
not to testify And of the six members present, four dis-
qualified themselves That left only two board members
to hear the charges Under the International's constitu-
tion, "[i]f less than three members of the District Execu-
tive Board remain after disqualification, the case shall be
tried by three members of the International Executive
Board " District 31 accordmgly referred the
charges to the International's executive board
6 Other points raised by the parties the relatively limited scope of au-
thority of local union presidents, the fact that the UMWA's constitution
does not authorize local union to file mtraumon charges, many of the dis-
cussions between the signatories concerning the charges took place at
union functions and, sometimes, while the signatory was on official
UMWA business, and communications by District 31 and International
officials suggest that those officials may have thought that the signatones
filed the charges in their official capacities
I don't think that adds up to a violation of the Act by
District 31
The question is when, if ever, "it became clear" to
agents of District 31 that the charges were based on
Johnston's testimony before the arbitration Cement
Workers D-357 (Southwestern Portland Cement), 288
NLRB 1156, 1157 (1988)
As will be recalled, on their face, the charges do not
refer to Johnston's testimony before the arbitrator (The
heart of the charges is that Johnston "did conspire and
work with the management of Beth Energy's #81 mine
in an attempt to have mine and safety committeemen
Benny Moore removed from office ft)
Moreover, unlike cases such as Cement Workers D-357,
the charges do not "center" on conduct that is protected
by the Act The signatories were at least as concerned
with Johnston's responsibility for the abortive embezzle-
ment case against Moore and with Johnston's role in the
lamp house incident as they were with Johnston's testi-
mony before the arbitrator
Finally, the record fails to show that either Darcus or
Claypole ever "knew or should have known" that a basis
of the charges was Johnston's protected activity (Id))
The record does suggest that executive board member
Webber knew that to be the case But Webber absented
himself from the meeting at which the charges were con-
sidered In addition, unlike the situation in Cement Work-
ers D-357, Webber gamed his knowledge of the charges
from his personal relationships, not from statements
made by the parties in the course of the union's investi-
gation into the charges
In sum, I find that no member of the executive board
of District 31 had any appropriate basis for concluding
that the charges against Johnston were founded on John-
ston's testimony before an arbitrator That being the
case, I conclude that the District did not violate the Act
when it processed the charges or when it referred them
to the International
The Processing of the Charges by the International
In late June the International's executive board, in ac-
cordance with the UMWA's constitution, selected three
board members as a "trial commission" to hear the
charges that had been referred to the International by
District 31 (Selections were by lot ) The International
thereupon advised Johnston and the signatories that the
trial commission would hear onthe charges on August 2
The commission did hold that hearing The signatories
were there Johnston was not Tarley presented the case
for the signatones
The record here tells us very little about what argu-
ments and evience Tarley presented at the hearing before
the trial commission It is reasonably clear that at that
hearing the members of the trial commission must have
learned that the only possibly relevant activity by John-
ston on March 9 (a date referred to in the charges) was
his testimony at the arbitration hearing On the other
hand, there is uncontroverted testimony here that Tarley
asked that the commission not consider Johnston's testi-
mony before the arbitrator (At Tarley's request, both
the arbitrator's decision and the transcript of the arbitra-
MINE WORKERS LOCAL 1058 (BETH ENERGY) 397
tion hearing were made part of the trial commission's
record But both Tarley and the members of the commis-
sion could have used those documents for purposes other
than scrutinizing Johnston's testimony at the arbitration
hearing )
All things considered, I am unable to find that the
members of the International's trial commission should
have known that a basis of the charges against Johnston
was his testimony at the arbitration hearing That being
the case, I will recommend that the complaint's allega-
tions against the International be dismissed
[Recommended Order omitted from publication ]
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