United Mine Workers Of America, Local 1575 (Peabody Coal Co.)

National Labor Relations Board - Board Decisions

Oct 13, 1988

291 N.L.R.B. 361 (N.L.R.B. 1988)

MINE WORKERS LOCAL 1575 (PEABODY COAL)
United Mine Workers of America , Local 1575 (Pea
body Coal Company) and Richard L Allard and
Gerald C Wolfe and Gregory A Larson Cases
19-CB-6134 19-CB-6137 and 19-CB-6147
October 13 1988
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 13 1988 Administrative Law Judge
William L Schmidt issued the attached decision
The Respondent filed exceptions and a supporting
brief and the General Counsel filed an answering
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 findings 2
and conclusions and to adopt the recommended
Order 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent United Mine
Workers of America Local 1575 its officers
agents and representatives shall take the action set
forth in the Order except that the attached notice
is substituted for that of the administrative law
judge
361
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 restrain or coerce you by process
ing internal union charges imposing or collecting
fines or otherwise implementing readmission con
ditions for activities that you engage in after you
terminate your status as full union members
WE WILL NOT in 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 rescind all fines readmission condi
tions and recommendations imposed on Richard
Allard Gregory Larson Dale Miller and Gerald
Wolfe by our trial committees decision of August
5 1987 and refund to them any money they may
have paid to satisfy such fines readmission condi
tions or recommendations with interest
WE WILL make Richard Allard Gregory
Larson Dale Miller and Gerald Wolfe whole for
any loss of earnings benefits travel expenses or
any other expenses incurred as a result of their
need to defend themselves against the charges un
lawfully preferred against them
WE WILL remove from our records any refer
ence to the unlawful charges fines trial proceed
rags readmission conditions and recommendations
of the trial committee against Richard Allard
Gregory Larson Dale Miller and Gerald Wolfe
and notify them in writing that this has been done
UNITED MINE WORKERS OF AMER
ICA LOCAL 1575
The Respondent has requested oral argument The request is denied
as the record exceptions and briefs adequately present the issues and the
positions of the parties
' In par I sec I A of his decision the judge stated that the Respond
ent commenced an economic strike at the Employers mine on March 22
1987 Although we note that there is no specific evidence in the record
about the factors precipitating the strike we find that the judge s charac
tenzation of the strike as economic has no bearing on our decision
here The type of strike involved is irrelevant to whether the Respondent
unlawfully disciplined former members for their postresignation conduct
In sec III of his decision the judge gave an incorrect citation for New
Horizons for the Retarded The correct cite is 283 NLRB 1173 (1987)
In adopting the judge s decision Member Cracraft does not rely on
Food & Commercial Workers Local 81 (MacDonald Meat) 284 NLRB
1084 (1987) in which she dissented in part or on the proposition for
which that case is cited Member Cracraft notes that the judge s findings
of violations here are consistent with her MacDonald Meat dissent
' We shall substitute the attached notice for that of the judge which
we have modified to correct certain inadvertent omissions
Linda J Scheldrup Esq for the General Counsel
Karen L Yablonski Toll Esq (McKendree Toll & Manes)
of Denver Colorado for the Respondent
DECISION
STATEMENT OF THE CASE
WILLIAM L SCHMIDT Administrative Law Judge On
2 September 1987 the Regional Director for Region 19
of the National Labor Relations Board (NLRB or Board)
consolidated the timely filed cases in this proceeding and
issued a formal complaint alleging that United Mine
Workers of America Local 1575 (Respondent or Local
1575) violated Section 8(b)(l)(A) of the National Labor
Relations Act (Act) by disciplining Richard Allard
(Allard) Gregory Larson (Larson) Dale Miller (Miller)
291 NLRB No 57
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Gerald Wolfe (Wolfe) for refusing to engage in a
strike after tendering valid resignations from membership
in Local 1575 I heard this matter on 17 November 1987
at Miles City Montana i Having carefully considered
the record the demeanor of the witnesses while testify
ing and he parties postheanng briefs I make the fol
lowing
FINDINGS OF FACT
I THE ALLEGED UNFAIR LABOR PRACTICES
A Facts
The hourly employees of Peabody Coal Company s
Big Sky coal mine near Colstrip Montana are represent
ed by Respondent 2 On 22 March the Respondent com
menced an economic strike at the mine Between 7 and
14 April Allard Larson Miller and Wolfe tendered
written resignations from membership in Respondent and
returned to work crossing the Respondents picket line
More specifically Allard tendered his resignation on 7
April and returned to work on 13 April His resignation
reads
UMWA
Local 1757 [Sic]
District 15
This letter dated 4-6-87 is to inform you that I
Richard Allard do hereby tender my resignation
from U M W A Local 1575 District 15 where I
was hired December 13 1984
This resignation is effective immediately
Larson tendered his resignation on 12 April and returned
to work on 13 April Miller tendered his resignation on
14 April and returned to work later that day Their let
ters addressed only to Local 1575 President Vinson
contain the following identical body
I hereby resign my membership in U M W A Local
Union 1575 and District 15 However I do agree to
provide fees or dues pursuant to a contractual union
security clause in order to retain my core member
ship
Wolfe tendered his resignation on 12 April and returned
to work on 13 April His letter reads
To U M W A -Local 1575-District 15
ignation from U M W A -Local 1575 District 15
where I was hired on June 6 1977
However I do agree to provide fees or dues pur
suant to a Contractual Union Security Clause in
order to retain my core membership
This resignation is effective immediately
Each continued thereafter to cross the picket line to
work on scheduled shifts until the strike was concluded
on 12 May The Respondent was in receipt of all four
resignations before Allard Larson Miller and Wolfe re
turned to work
In June members of Local 1575 filed charges against
Allard Larson Miller and Wolfe alleging that the four
had failed to uphold their obligation [to the Union s
constitution] 3 Specifically the charges cited their fail
ure to adhere to UMW constitution article 12 sections
5-9 and the initiation oath The pertinent constitution
provisions obligate all members to support all authorized
strikes observe all authorized picket lines and aid and
support the enforcement of members duties under the
Union s constitution For initiation to membership the
prospective member pledges to abide by the [Respond
ent s] laws and promises to cease work at any time
called upon by the [Respondent] to do so
The charges were filed with the Local 1575 recording
secretary who thereafter served copies on each of the
four individuals Allard Larson and Wolfe each re
sponded by letters dated 17 June claiming in effect that
the charges were illegal At a Local 1575 membership
meeting on 21 June a trial committee was selected in
accord with the provisions of the Respondents constitu
tion 4 Between 21 June and 2 August the trial committee
organized itself notified all parties of the 2 August hear
ing it planned to conduct and otherwise performed nec
essary preliminary tasks in preparation for the hearing
The trial committee hearing lasted approximately 55
minutes on 2 August Several individuals appeared and
provided testimony supporting the charges brought
against Allard Larson Miller and Wolfe Of the four
only Larson appeared at the hearing Apart from insist
ing that the committee read his 17 June response to the
charges Larson declined to participate in the proceed
rags
The committees decision was reached on 2 August
following 4-5 hours of deliberation and it issued in writ
ten form on 5 August The decision concluded that Al
lard s April resignation was effective as to the United
Mine Workers of America (UMW) UMW District 15
This letter dated April 13 1987 is to inform you
that I Gerald C Wolfe do hereby tender my res
I All dates are in 1987 unless noted otherwise
2 Peabody Coal Company (Peabody) a Delaware corporation with a
place of business in Colstrip Montana is engaged in the business of
mining coal The complaint alleges and the answer admits that Peabody
has direct inflow or indirect inflow to Montana exceeding $50000 and
direct outflow or indirect outflow from Montana exceeding $50 000 Pea
body therefore is an employer engaged in commerce within the meaning
of Sec 2(2) (6) and (7) of the Act Local 1575 is a labor organization
within the meaning of Sec 2(5) of the Act I find that it would effectuate
the purposes of the Act for the Board to exercise its statutory jurisdiction
over this labor dispute
3 A separate five page charge was filed against the four for each day
each individual was known to have crossed the picket line All charges
are identical apart from the date of the alleged infraction the specific in
dividuals charged and the individuals signing the charge Altogether
Allard was charged with an unauthorized crossing of the picket line 24
times Larson 28 times Miller 25 times and Wolfe 27 times Allard and
Larson were charged with crossing the picket line on 6 April before
either had attempted to resign Larson crossed the line on that date for
the purpose of delivering a medical insurance claim before it became
stale Allard crossed the picket line to question a company official about
anonymous telephone threats he had received
No claim is made here that the disciplinary proceeding failed to
strictly follow the Respondents constitutional procedures in any respect
or that those procedures are defective in any manner
MINE WORKERS LOCAL 1575 (PEABODY COAL) 363
and Local 1575 For this reason the trial committee did
not fine Allard Nevertheless the committee viewed Al
lard s resignation in the middle of a strike to be a viola
tion of a member s obligation to his fellow union mem
bers and to the union It concluded that Allard had
abandoned the union at a time when [his] loyalty and
support was needed most Because of this disloy
alty the committee imposed as a condition for Allard s
readmission to the UMW a requirement that he pay one
fourth of all expenses incurred to prepare and conduct
[the] trial and its proceedings In addition the decision
states that the committee would recommend to the
UMW president that in the event of another strike
Allard be docked 48 days of strike benefits two days for
every day [he] worked during the strike of 1987
The trial committee concluded that the resignations of
Larson Miller and Wolfe although effective regarding
their membership in Local 1575 and District 15 were
not effective regarding their membership in the UMW
This conclusion was grounded on the punctuation (or
lack thereof) used in referring to the three organizations
in the body of their letters and the fact that all three let
ters alluded to maintaining their core membership In
the committees view core membership referred to
membership in the UMW Accordingly the committee
fined Larson Miller and Wolfe $200 for each day they
crossed the picket line Larson s total fine amounted to
$5600 Millers is $4800 and Wolfe s is $5400 In addi
tion the committee concluded that letters written by
Larson and Wolfe in June to protest the charges against
them constituted effective resignations from the UMW
and hence imposed the same readmission conditions
(one fourth of the cost of the proceedings) as was im
posed on Allard Finally the committee decisions state in
all three instances that a recommendation would be made
to the UMW president that each be docked future strike
benefits at the rate of 2 days for each day worked during
the 1987 strike
There is no indication that any of the penalties im
posed against Allard and Larson related to their preresig
nation crossing of the picket line on 6 April for nonwork
purposes
B Argument
The General Counsel argues that the resignations of
Allard Larson Miller and Wolfe were effective regard
ing the UMW and its subordinate components and that
they were disciplined for their postresignation conduct
Additionally the General Counsel argues that no part of
the discipline imposed on these four former members is
protected by the proviso to Section 8(b)(1)(A)
Respondent contends that Larson Miller and Wolfe
resigned only from Local 1575 and District 15 but not
from the UMW Accordingly Respondent argues that
the fines imposed on these three individuals are lawful
The Respondent also believes that it acted lawfully by
conditioning the reacquisition of membership on the pay
ment of a portion of the costs of the disciplinary pro
ceedings Such conduct Respondent argues is protected
by the proviso to Section 8(b)(1)(A) Finally Respondent
contends the recommendation that all four be docked
future strike benefits is likewise defensible on the same
ground as that recommendation is merely a further
condition of reacquisition of membership
C Conclusions
Section 8(b)(1)(A) of the Act provides that it is an
unfair labor practice for a labor organization to restrain
or coerce employees in the exercise of the rights guaran
teed in Section 7 [of the Act] Section 7 of the Act
guarantees that employees in essence may engage in
union or concerted activities to improve their wages and
working conditions or refrain from engaging in such ac
tivities (subject to certain limitations in Sec 8 (a)(3) con
cerning the acquisition and retention of membership de
scribed more fully below ) if they so choose The proviso
to Section 8(b)(1)(A) on which Respondent relies for a
portion of its defense provides that the general proscrip
tion of that Section
shall not impair the right of a labor organiza
tion to prescribe its own rules with respect to the
acquisition or retention of membership therein
An employees refusal to engage in a strike or honor a
picket line is protected by Section 7 Machinists Booster
Lodge 405 v NLRB 412 US 84 ( 1973) However a
labor organization may lawfully discipline its members
for their failure to engage in a lawful strike or honor a
lawful picket line NLRB v Allis Chalmers Mfg Co 388
U S 175 ( 1967) An employee may escape such discipline
by resigning full membership in a labor organization that
restricts such activities i e refusing to strike or crossing
a legitimately established picket line before engaging in
those activities NLRB v Textile Workers Local 1029
Granite State Joint Board 409 U S 213 (1972) An em
ployee s resignation from membership in a labor organs
zation may be communicated either orally or in writing
and need only convey a clear intention to resign Service
Workers Local 80 (Capitol Husting Co ) 235 NLRB 1264
(1978) Resignation from membership becomes effective
on receipt by the labor organization Teamsters Local 439
(Tracy American Ready Mix) 281 NLRB 1232 ( 1986) If
a member resigns and subsequently engages in conduct
violating union rules and regulations the union may law
fully expel or suspend the former member provided such
action does not have monetary implications Food &
Commercial Workers Local 81 (MacDonald Meat) 284
NLRB 1084 fn 12 (1987)
Section 8(a)(3) of the Act permits an employer and a
labor organization to enter into and maintain an agree
ment requiring membership in a labor organization as a
condition of employment When such an agreement
exists the employee must acquire and maintain member
ship to avoid exposure to discharge Notwithstanding
Section 8(a)(3) s literal language the nature of the mem
bership required to avoid such exposure is said to be lim
ited to the financial core aspect of membership NLRB
v General Motors Corp 373 U S 734 ( 1963) In essence
this means that an employee may only be required to pay
those initiation fees and dues uniformly required of mem
bets and need not become a full union member subject to
a wide range of union rules and regulations Hershey
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Food Corp 207 NLRB 897 (1973) enfd 513 F 2d 1083
(9th Cir 1975) Put another way an employee is subject
to the complete scope of union rules and regulations but
full membership may not be required as a condition of
employment NLRB v Allis Chalmers supra at 196
Applying the foregoing principles to the facts here
Respondent received the April resignation letters of
Allard Larson Miller and Wolfe prior to their abandon
ment of the 1987 strike by returning to work
All four letters suffice to preclude the imposition of in
ternal union discipline Respondent concedes that Al
lard s letter (which made no mention of maintaining a
financial core membership) constituted a complete res
ignation of membership status As to the remaining three
resignations I reject Respondents contention that they
were ineffective as to the UMW The remaining letters
evidence a clear intention (regardless of what they say
about resignation) to alter their status from full union
members to financial core members Contrary to the trial
committee I find that core membership as used by
Larson Miller and Wolfe refers to the common legal
usage mentioned above and not to membership in the
UMW As a labor organization may not impose internal
union discipline of the type found in this case on either a
former member or any individual who alters his/her
status to that of a financial core member I find Respond
ent violated Section 8(b)(1)(A) of the Act by doing so
here Carpenters Local 470 (Tacoma Boatbuilding) 277
NLRB 513 (1985) Carpenters Seattle Council (Gordon
Construction) 277 NLRB 530 (1985)
The conclusion here reaches not only the fines im
posed on Larson Miller and Wolfe but also all the re
admission conditions Respondent imposed Both the
tenor of the trial committees findings and the circum
stances giving rise to the readmission requirements estab
lish that the readmission conditions are in effect a mon
etary penalty imposed on Allard Larson Miller and
Wolfe for exercising their Section 7 right to refrain from
striking Such penalties violate Section 8(b)(1)(A) Food
& Commercial Workers Local 81 (MacDonald Meat)
supra Professional Engineers Local (General Dynamics)
272 NLRB 1051 (1984)
II THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above occur
ring in connection with the operations of Peabody Coal
Company have a close intimate and substantial relation
ship to trade traffic and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
III THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act I shall recom
mend that the Board order it to cease and desist there
from I shall also recommend that the Board order the
Respondent to rescind all unlawful fines readmission
conditions and recommendations remove all references
to the charges and trial proceedings from its records and
notify the four affected employees in writing of the re
scission and removal I shall also recommend an order
requiring the Respondent to refund any money paid as a
result of the fines and conditions imposed plus interest as
computed in New Horizons for the Retarded 283 NLRB
1173 (1987) Moreover Respondent shall be required to
reimburse each employee for travel and other expenses
incurred in defending themselves against the charges
found unlawful herein in the manner specified in Labor
ers Northern California Council (Baker Co) 275 NLRB
278 (1985) and Machinists District 94 (McDonnell Doug
las) 283 NLRB 881 (1987) Finally I recommend the
Respondent be required to post an appropriate notice to
members
CONCLUSIONS OF LAW
1 Peabody Coal Company is an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
2 United Mine Workers of America Local 1575 is a
labor organization within the meaning of Section 2(5) of
the Act
3 By processing internal union charges imposing
fines and readmission conditions and recommendations
against Richard Allard Gregory Larson Dale Miller
and Gerald Wolfe employees of Peabody Coal Compa
ny for activities in which they engaged subsequent to
terminating their status as full union members the Re
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed5
ORDER
The Respondent United Mine Workers of America
Local 1575 Colstrip Montana its officers agents and
representatives shall
1 Cease and desist from
(a) Processing internal union charges imposing or col
lecting fines or otherwise implementing the readmission
conditions and recommendations of its trial committee s
written decisions of 5 August 1987 against Richard
Allard Gregory Larson Dale Miller and Gerald Wolfe
employees of Peabody Coal Company for activities they
engaged in subsequent to the termination of their status
as full union members
(b) In any like or related manner restraining or coerc
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
MINE WORKERS LOCAL
(a) Rescind all fines and readmission conditions and
recommendations as they relate to Richard Allard Greg
ory Larson Dale Miller and Gerald Wolfe for activities
in which they engaged in subsequent to the termination
of their status as full union members and refund to them
any money they may have paid as a result of the impose
tion of such fines or readmission conditions or recom
mendations in the manner set forth in the remedy section
of this decision
(b) Remove from its records all references to the un
lawful charges trial committee decisions fines and read
mission conditions and recommendations and notify
Richard Allard Gregory Larson Dale Miller and
Gerald Wolfe in writing that all fines and readmission
conditions and recommendations imposed against them
have been rescinded and all records thereof have been
removed
(c) Make Richard Allard Gregory Larson Dale
Miller and Gerald Wolfe whole for any loss of earnings
benefits travel expenses and any other expenses incurred
as a result of their need to defend themselves against the
charges unlawfully preferred against them
1575 (PEABODY COAL) 365
(d) Post at its business office and meeting halls copies
of the attached notice marked Appendix 6 Copies of
the notice on forms provided by the Regional Director
for Region 19 after being signed by the Respondent s
authorized representative shall be posted by the Re
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered defaced or cov
ered by any other material
(e) Sign and return to the Regional Director for
Region 19 sufficient copies of the notices for posting by
Peabody Coal Company if willing at all places where
notices to employees customarily are posted
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
6 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