United Mine Workers of America Welfare and Retirement Fund

National Labor Relations Board - Board Decisions

Aug 25, 1971

192 N.L.R.B. 1022 (N.L.R.B. 1971)

,1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Mine Workers off America 'Welfare and Retire-
went a Fund and Diana Faye Kennedy and Local
Union 13410, United Mine Workers of America,
affiliated - with United Mine Workers of America.'
Case 27-CA-2607
August 25, 1971
DECISION AND ORDER
On August 4, 1970, Trial Examiner Herman
Corenman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, exceptions and briefs in support thereof
were filed by the Respondent, United Mine Workers
of America Welfare and Retirement Fund, and by
the Party in Interest, the Trustees of Local Union
13410, United Mine Workers of America and the
International Union, United Mine Workers of
America.
The Board has reviewed the rulings of the Trial
Examiner made 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 the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner with the following modification.
It is clear , as set forth in the Trial Examiner's
Decision, that some of Respondent 's supervisors
have held the position, and carried out the duties, of
corresponding secretary in Local 13410; have called,
participated in, conducted, and presided at meetings
of said Union; have solicited and procured member-
ships and checkoff authorizations for that Union;
and have voted in elections of that Union. Respon-
dent has thereby interfered with the administration
of and contributed financial and other support to
Local 13410 in violation of Section 8(a)(1) and (2) of
the Act, and we accordingly adopt the Trial
Examiner's conclusions in part III, F, of his
Decision.
The Trial Examiner further found that Local 13410
is disqualified to represent the Respondent's employ-
ees by reason of the relationship between Respon-
dent and United Mine Workers of America
(hereinafter UMWA), with which Local 13410 is
1 Hereinafter Local 13410.
2 Centerville Clinics Incorporated 181 NLRB No. 23; Welfare and
Pension Funds, 178 NLRB No. 3; Oregon Teamsters ' Security Plan Office, or
aL, 119 NLRB 207.
3 For the reasons fully expressed in the Trial Examiner 's Decision
Chairman Miller and Member Kennedy would affirm in this respect.
However, as a majority of the Board does not agree, they sustain the lesser
affiliated. The Trial Examiner so concluded on the
ground that Miss Roche was inherently subject to the
continuing influence of. the UMWA in the perform-
ance of her functions because she was jointly selected
by - the operators , and UMWA.'. In, the view of
Members Fanning , and Jenkins, in which Member
Brown concurs as indicated in his separate opinion,
the record contains no evidence to support such a
conclusion, and thus, as only one of Respondent's
three trustees is directly responsible to the UMWA,
this case is distinguishable from those cases relied
upon by the Trial Examiner.2 Accordingly, the
relationship of UMWA to the Respondent is not
shown to be such as to render Local 13410
incompetent to represent Respondent's employees-3
Accordingly, as we have found that the Respon-
dent has violated Section 8 (a)(2) and (1) of the Act
by interfering with the administration of Local 13410
and by contributing financial and other support to it,
we shall order that the Respondent cease giving
effect to any agreement, oral or written,4 and
withdraw and withhold all recognition from Local
13410 as the collective-bargaining representative of
any of Respondent's employees, unless and until
Local 13410 shall have been certified as the collect
tive-bargaining representative pursuant to a Board-
conducted election among Respondent's employees
in a unit or units appropriate for the purposes of
collective bargaining. However, nothing herein shall
be construed to require the Respondent to vary or
abandon any wages, hours, seniority , or other
substantive feature of its relations with its employees
which the Respondent has established pursuant to
any such contract, agreement, or understanding, or
to prejudice the assertion by the employees of any
rights acquired by them thereunder-5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
United Mine Workers of America Welfare and
Retirement Fund, its trustees , officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Holding office or other position in the Union;
voting in union elections; soliciting, receiving, or
securing union membership and checkoff authoriza-
tions; calling, presiding over, or conducting union
findings , conclusions, and remedial provisions provided for herein.
4 It appears from the record that no formal written collective-bargaining
contract has been entered or exists.
b James Ray Company, Inc., 176 NLRB No. 2, TXD, The Remedy
section. Cf. San Leandro Imports, d/b/a Art Brides Auto Emporium South,
173 NLRB 629, TXD, The Remedy section.
192 NLRB No. 120
UNITED MINE WKRS. RETIREMENT FUND
meetings ; and participating in the transaction of
union business.
(b) Recognizing or dealing with or giving effect to
any contract, agreement, or understanding with
Local Union 13410, United Mine Workers of
America, affiliated with United Mine Workers of
America, as the representative of its employees,
unless and until said labor organization shall have
been certified as the representative of the employees
by the Board.
(c) Deducting money from the employees' wages or
salary for payment to Local Union 13410, United
Mine Workers of America, affiliated with United
Mine Workers of America.
(d) In any like or, related manner interfering with,
restraining,- or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies' of the Act:
(a) Withdraw and withhold all recognition from
and cease giving effect to any contract, agreement, or
understanding with Local 13410, United Mine
Workers of America, affiliated with United Mine
Workers of4 America, unless and until said labor
organization shall have been certified by the Board.
(b) Post at its Washington office and at all area
offices copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms
provided by the ' Regional Director for Region 27,
after being duly signed by Respondent's authorized
representative, shall 'be posted by Respondent
immediately „upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous . places , including all places where notices to
employees ° 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.
(c) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER BROWN , dissenting in part:
The Employer, a welfare and retirement fund
established in 1950, operates a headquarters in
Washington, D.C., and 10 area medical offices
throughout the United States. There are approxi-
mately'' 200 employees in Washington and 200
distributed among the 10 area , medical , offices.
The charge in this , case was filed by an individual,
Diana Kennedy, employed in Respondent's Denver
office. It alleged violations of Section 8(a)(2) and (3)
in that Kennedy was discharged without opportunity
for representation by the .collective-bargaining agent
of the employees (Local 13410), and that 'a supervisor
acted as a union steward and denied Kennedy the
1023
benefits of union membership, including proper
representation in matters pertaining to her termina-
tion. The charge thus was limited to certain specific
alleged violations'in the Denver office.? The resulting
amended complaint alleged a number of violations of
Section 8(a)(2) by interference `with the administra-
tion of Local 13410 not only in Respondent's Denver
office but also in four other area medical offices as
well, and further attacked Respondent's recognition
of Local 13410 in the nationwide unit alleging that
Union's incompetency to represent any of Respon-
dent's employees in that unit.
Utilization of the charge in this case as a predicate
to a complaint alleging various acts of interference
with and assistance to Local 1,3410 by supervisors in
offices other than Denver and as a base to allege the
very incompetency of Local 13410 on a nationwide
basis, is in my view completely unwarranted. I see
little or no relationship in character or time between
the conduct alleged in the charge and that alleged
outside Denver in the complaint, and I would dismiss
the complaint except insofar as it concerns violations
at Respondent's Denver offices
Furthermore, even if I did not view the inordinate
discrepancy between charge and complaint as
dispositive, I would- nevertheless not find Local
13410 incompetent to represent Respondent's em-
ployees, for the reasons set forth in the principal
opinion.
Accordingly, I concur with my colleagues that the
Respondent violated Section 8(a)(2) and (1) of the
Act at its Denver, Colorado,, office and join in
ordering it to cease and desist therefrom and to post
appropriate notices. I would, order no further
remedial provisions and ,would, dismiss all other
allegations of the complaint.
6 In the event that the Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "POSTED' BY'
ORDER OF THE NATIONAL LABOR RELATIONS BOARD". shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
7 A second charge was filed by Etha Logan, also an employee in the
Denver office , in December 1969, 'alleging 'that Logan was terminated
because of her concerted and/or union activity in violation of Sec. 8(aX3).
A settlement was reached in that case -during the course of the hearing,
however, and,the charge was withdrawn.
$ See Sunnen Products, Inc., 189 NLRB No. 132.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF_ THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT , solicit -membership in or pass out
or receive applications for membership in or
checkoff authorizations for Local 13410, United
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mine Workers of , America, affiliated with
UMWA.
WE WILL NOT permit our supervisors to hold
any office or position in the Union or permit
them to participate in union elections or in the
calling, or presiding at,, union meetings.
WE WILL withdraw and withhold all recogni4
tion from and cease giving effect to any contract,
agreement, or understanding with Local Union
13410, United Mine Workers of America, affiliat-
ed with United Mine Workers of.America , as the,
representative of our employees, unless the
National Labor Relations Board certifies said
labor organization.
WE WILL immediately discontinue deducting
from employees'_ wages or salary any moneys for
payment to the Union.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
UNITED MINE WORKERS
of AMERICA WELFARE
AND RETIREMENT FUND
(Employer)
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 compli,
ance with its provisions- may be directed to the
Board's, Office, 721 19th Street, New Custom House,
Room 260, Denver, Colorado '80202, Telephone
303-837-3551:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CoRENMAN, Trial Examiner: Upon a charge
filed on November 12, 1968, by Diane Faye Kennedy, an
individual, in Case 27-CA-2607, and a charge filed on
December 16, 1969, by Etha L. Logan, an individual, in
Case 27-CA-2853, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 27 at Denver, `Colorado, issued a consolidated
complaint on February 13; 1970, against ' United Mine
Workers of AniericaWelfare and Retirement Fund, herein
r None of the counsel who made appearances claimed to be
representing the Trustees of the Respondent Fund. I have concluded
nevertheless that- counsel's - appearance on behalf of the Respondent Fund
was tantamount to an appearance for the Trustees of the Fund, in their
representative capacity, who are named in the complaint as parties in
called the Respondent or the Fund. Named, in the
complaint as parties in interest are the three trustees of the
Fund, as well as Local Union 13410, United Mine Workers
of America, affiliated with United' Mine `Workers of
America, herein" called the - Union - or Local, 13410.
The consolidated complaint alleged that the 'Respondent
had engaged in,unfair'labor practices within the meaning
of Section 8(axl) and (2) by (1) specified acts interfering
with the- administration of the Union and contributing
financial or other-support to it and (2) recognizing and-
dealing with the Union which allegedly is incompetent too'
represent, its employees. It -further alleged, that the
Respondent violated Section 8(a)(1) and (3) bye discharging
Etha ` L. Logan from its employment and by denying
hospital and medical care coverage to nonmembers of the
Union.
A prehearing motion 'of `the Respondent to dismiss the
complaint on the asserted-ground that the-Respondent-was,
not a suable entity subject to -the jurisdiction of the, Board
nor an employer within the meaning of the Act, was denied
by the Trial Examiner. [See G. C. Exh., 1(y).]
This case was heard before me at Denver, Colorado, on
April 7, 8, and 9, 1970. All parties' appeared and were
given full opportunity `to participate in = the hearing, - to
"adduce evidence, to examine and cross-examine witnesses,
to' argue orally on the record, and to submit briefs. 'Briefs
submitted by the General: Counsel, the Respondent, ,and
the Union have been.carefully'considered.
Near the close of the, hearing, upon a written request by
Etha L. Logan, that the charge filed by, her, in Case.--
27-CA-2853 be withdrawn because of a_ compromise
settlement made by her,with the Respondent, and upon they
recommendation of counsel for the General Counsel that"°'
the withdrawal request, be approved, I" consented to
Logan's request to' withdraw her 'charge - in" Case
27-CA-2853. Upon, the `basis of `said withdrawal,, counsel
for the General Counsel dismissed -par'agiaphs VII ;and'
VIII of the complaint relating to the alleged`discriminatory
discharge of Etha L. Logan; .and it was ,stipulated eon ,the
record that none, ,of, the evidence relating to,, Etha L.
Logan's , discharge should be ,considered in,arriving at a
decision on other unfair labor practices alleged in the
complaint.
Upon the entire record in the, case 'and 'from my
observation of the demeanor of the witnesses 'while,
testifying under oath, I make the following: -
FINDINGS OF FACT
L.THE BUSINESS OF. THE RESPONDENT '
It 'is admitted,, by -the pleadings, and I find._that, the
United,Mine Workersrof,America Welfare and Retirement
Fund of 1950, the Respondent her°em,` successor to.'the
United `Mine Workers of America Welfare and Retirement
Fund first ' created in May 1946, was established by trust
instrument contained 'in the National Bituminous ' Coal
interest. The -Fund is the fictional entity under whose name the trustees
operate: See e.g., Herald Publishing Company of Bel flowe , 114 NLRB" 71,
73, fn, l and cases there cited; Southwest Hotels Inc.,126 NLRB lb 1, fns. 2
andk3 ;, Hudson Pulp and Paper Corparatioq' 121 NLRB 141}6, 1448, fn l;
Cabo, Carbon Co, 117 NLRB 1633, 1637.
UNITED MINE WKRS . RETIREMENT FUND
Wage Agreement of 1950, pursuant to Section 302(C) of
the Labor Mar!agement Relations Act, 1947 (29 U.S.C..
186 (C)), as an irrevocable trust and is located in
Washington, D.C. The Respondent maintains its principal
office at 907,15th Street N.W., Washington, D.C., and also
operates and maintains 10 area medical offices located in
various cities of the United States, including Pittsburgh,
Pennsylvania; Johnstown, Pennsylvania; Morgantown,
West Virginia; Knoxville, Tennessee; Charleston, West
Virginia; Denver, Colorado; Beckley,; West Virginia;
Birmingham, Alabama; Evansville, Indiana; and St. Louis,
Missouri. The Respondent is administered by three
trustees, one of whom is selected by the United Mine
Workers of America (herein called UMWA), one by the
coal operators who are parties to the National Bituminous
Coal, Wage Agreement of 1950, and one appointed jointly
by the-coal operators and the UMWA. Pursuant to the
aforesaid agreement, the Respondent receives in excess of
$1 million annually at its offices in Washington, D.C., from
coal operators located in, states of the United States outside
the District of Columbia wwho^ are parties- to the aforesaid
agreement. The Respondent distributes in, excess of
$100,000 annually of the money received from the coal
operators to, provide medical care benefits, pensions,
widow-and survivor- benefits,.-and funeral expenses for
employees covered by the above referred-to agreement. I
find that the Respondent is, and at all times material
herein has been, an employer engaged in commerce within
the meaning o£ Section 2(2), (6), and (7) of the Act. Oregon
Teamsters Security Plan, 1-13,NLRB 987, 119 NLRB 207,
353 U.S. 313; Southeastern Regional ILGWU Health and
Welfare Fund, 146 NLRB 790; Welfare and Pension Funds,
178 NLRB No. 3;. Chain Service Restaurant, etc Welfare
Trust Fund, 132 NLRB 960.2
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, the record
shows, and I find that Local Union 13410, United Mine
Workers of America, herein called the Union or Local
13410, is, and at all times material herein has been,
affiliated as a local union chartered by UMWA; and that
UMWA and the Union are now, and at all times material
herein have been, labor organizations within the meaning
of Section 2(S) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Union has represented the Respondent's employees
in Washington, D.C., and the 10 area medical offices
named in section -I of this 'Decision since 1948. In the first
20 years of its existence , the Union was affiliated with
District 50.
In March 1968, the UMWA expelled District 50. Shortly
thereafter in April 1968, the Union conducted a mail ballot
election to determine whether or not its members wished to
a Consistent t with my order denying the Respondent's prehearing motion
to`dismiss the complaint. [see G.C. Exh. 1(y).] I have concluded that the
FIRS'( DEFENSE in the Respondent's answer, namely that the Respon-
dent is not a suable entity subject to the process of the Board and is not an
1025
disaffiliate from District 50 and affiliate with UMWA.
Ballots were distributed to both supervisors and employees
of Respondent who were members of the Union. The
membership voted 380 to 4 by individual mail ballot for
disaffiliation from District 50 and affiliation with UMWA.
Pursuant to the vote of the membership, the Union's
president informed the president of District 50 that its
affiliation with District 50 was terminated as of midnight,
May 14, 1968; and at the request of the Union's president
for direct affiliation with the UMWA, the Union received
a new charter from the UMWA dated May 15, 1968.
Mr. John D. Madden, financial secretary of the Union,
testified credibly and without contradiction concerning the
motive for the Union's disaffiliation from District 50 and
affiliation instead with UMWA as follows:
The members felt inasmuch as, first of all our wages
are coming from miners and we didn't feel that we
should Support another organization that wasn't con-
nected with the Mine Workers; and because of District
50 attitude toward atomic energy, we didn't want to
support them because that would have a direct bearing
on miners and on the pensioners of the Welfare Fund
and other beneficiaries received from the Welfare
Fund. It would affect us all in general.
The employees represented by the Union and who
comprise the union -membership consist generally of
clerical, technical, administration, professional, and execu-
tive people. In June 1968, approximately 400 people were
employed by the Respondent, 195 in Washington, 205 in
the 10 area medical offices. Checkoff authorizations had
been signed by 390 members.3 With the Union's affiliation
with the UMWA, the dues continued to be $3.50 monthly,
of which $2 was transmitted to the UMWA. All of -the
Union's executive officers are employed in-the Washington
office. All members, supervisors, and employees in the area
offices, as well as in Washington, voted on the affiliation
question which was conducted by mail ballot. In each area
office, the membership in that office selects a
"corresponding secretary" who serves as a conduit for
communication with'the union officers in Washington. For
example, the monthly union minutes and union news letter
is transmitted from the union officers in Washington to the
corresponding secretary who then circulates it among the
members in that office. An occasional employee' inquiry,
request, or grievance is mailed by the corresponding
secretary to the Union at Washington. The corresponding
secretary signs up-new members and procures the checkoff
authorizations which he transmits to the Union at
Washington.
The Union's mail address in Washington is the same as
the Respondent's. Union meetings in Washington are held
at the Hamilton Hotel and not in Respondent's office, but
executive meetings of the Union's officers are held at the
Respondent's Washington office during lunch hour.
There is no written collective-bargaining agreement
between the Respondent and the Union, and, so far as the
record shows, neither the Union nor the Fund has ever
employer within the meaning of the Act , is without merit, ibid
3 Especially in the Washington , D.C., office the employees in the main
are former miners or belong to coal miner families.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested a written contract. The Respondent honors the
union,dues checkoff authorizations and makes the appro-
priate deductions from the employees' salary for payment
of dues to the Union. Union officers in the Washington
office, acting as a negotiating or grievance committee,
make direct contact with-Mr. Robert T. Boylan, executive
assistant to the director of the Fund,4 to initiate requests
for wage adjustments, improved working conditions, and
other benefits and to take up employee grievances. They
do this from time to time'in their discretion and at the
behest of communications from area offices or the
Washington members.
There is no bargaining in the traditional sense. Thus,
according to„the credible,and'uncontradicted evidence of
John D. Madden,, the Union's financial secretary, in
October 1968 a union committee of three proposed to the
office of the Respondent's director that it grant a general
wage increase in the neighborhood of 9-1/2 percent. The
director's office told the union committee "they would take
this under advisement and we would beadvised later." No
more meetings were held, but in May 1969 an increase of
approximately 6 percent, showed up in the employees'
paychecks. Despite the absence of bargaining in the
conventional sense, it is undisputed that the Respondent's
salary scale, working conditions, and fringe benefits are
liberal and-progressive and equal or exceed area standards.
Mr., Robert T. Boylan, the Respondent's negotiating
officer with the Union, testified that prior to the Union's
affiliation with the UMWA negotiations were carried, out
with,the, president of District-50, but since affiliation of the
Union with UMWA, he negotiates with officers of the
local union and never has dealt with international officers
of the UMWA. Mr. Boylan testified that he thought he had
met- with the Union- "probably ten to twelve different
times.".
Asa local of the UMWA, the Union is subject to the
provisions, of the, UMWA Constitution, which provides in
part at article III, "Jurisdiction," as follows:
The International Union shall have supreme legisla-
tive,- executive, and judicial authority over all members
and subordinate branches, and shall be the ultimate
tribunal to which all matters of importance to the
welfare of the membership and subordinate branches,
shall be referred for adjustment. Between International,
Conventions the supreme executive and judicial powers
of the, International Union shall' be vested in its
Executive officers and Executive Board in accordance
with and subject to the provisions of this Constitution.
Sec. 2. All Districts, Sub-Districts and Local Unions
must be chartered by, and shall be under the jurisdiction
of and subject to the laws of the International Union
and rulings, of the International Executive Board.
Charters of Districts, Sub-Districts and Local Unions
may be revoked by the International President, who
shall have authority to create a provisional government
for the, subordinate branch whose charter has been
revoked.
,4 Mrs. Roche, the director of the Fund, is also the third trustee selected
by joint agreement of the UMWA and the coal operators
s Mr. Fulton's title was coordinator of patient services., He supervised
two nurses , an assistant and three secretaries.
6 The memorandum dated January 17, 1969, among other things,
instructed all area medical administrators as follows:
B. Evidence of Assistance at the Johnstown Office
Dr. Fritzjof H. Arestad, area medical administrator of
the Respondent's Johnstown, Pennsylvania , office, an
admitted supervisor, testified credibly and without contra-
diction that Thomas Fulton, Jr., an admitted supervisors at
the Johnstown area office, has held the union position- of
corresponding secretary in the Johnstown , office since
1951.
Dr. Arestad testified credibly, and I find ;-that after-the
May 1968 affiliation of the Union with the UMWA, Mr.
Fulton passed out checkoff authorization blanks to him
and all the other employees in the -Johnstown office.-Dr.
Arestad signed the checkoff authorization and returned it
to Fulton for transmittal to the Union at Washington. Dr.
Arestad further ^ testified that once or twice a year, there has
been a union meeting in the office which immediately
followed s sunshine club meeting . He testified 'he may have
remained for the 'union discussions which followed the
sunshine club meeting, but ordinarily he would leave
before the union meeting took place.
Dorothy Kokoruda credibly testified that she was Mr.,
Fulton's secretary and that when she was hired, Mr. 'Fulton
told her about the Union, about the pension - and health
benefits afforded ^-by union membership.' Mr. - Fulton
handed - her a membership application which she' signed
and returned to Mr. Fulton ; together , with a checkoff
authorization. Miss Kokoruda credibly testified, and I
find, that, pursuant to instructions from Fulton, she
prepares transmittal letters to the Union in Washington,
forwarding union membership applications and other
correspondence averaging about five or six letters a year.
The correspondence is' prepared during working hours.
Following the Union's affiliation with the UMWA in May
1968, Fulton distributed new checkoff cards to the
members and, at his instruction , Miss Kokoruda collected
the signed checkoff authorizations which she mailed back
to the Union at Washington.
C. Evidence of Assistance at the Denver Area'
Office
It is established without dispute, and I find, that Ada
Kruger, assistant to Dr. Dorsey, the area ' adininistrator and
an admitted supervisor, occupied the position of corre-
sponding secretary in the Denver area office from 1963 to
January 1969, when she resigned from the office pursuant
to a memorandum from Mrs, Roche, the director of the
Fund at Washington, to all area administrators.6 After the
Union affiliated in .May 1968 with the UMWA, Miss
Kruger received blank checkoff, authorization cards from
the Union in Washington which she distributed to the
members for `signature and return to the Union at
Washington.
In March 1968, Dr. Dorsey and Ada Kruger called a
meeting in the Denver office to consider` disaffiliation from
Area Medical Administrators and Assistant Area Medical _ Administra-
tors may retain their, membership in Local Umon 13410 for the purpose of
preserving benefits accruing to them by virtue of such membership. To the
extent that such supervisors hold any positions or titles ' With such Local
Union, they are required to resign such positions immediately and to cease
and desist from any such future activity.
UNITED! MINE WKRS. RETIREMENT FUND 1027
District 50 and-, affiliation with UMWA. The meeting was
held in Dr. Dorsey's office. Miss Kruger and Dr. Dorsey
solicited the views of employees concerning disaffiliation
from District 50 and affiliation with UMWA. A second
meeting of the employees in the Denver office was called in
April 1968° by Miss' Kruger. The meeting was attended by
the union members in Dr. Dorsey 's office and related to
the disaffiliation question.
Diana Kennedy, the charging party in Case
27-CA-2607, testified credibly .that she was hired by Miss
Kruger in November 1967. At that time, Kruger told
Kennedy that there was a union in the office and that
"really the only union benefit was the Blue Cross Blue
Shield coverage ." Kennedy testified she was not asked to
join. Kennedy further testified credibly that she attended
the disaffiliation, meeting- held in the office. According to
Kennedy's credible testimony, Kruger opened the disaffili-
ation meeting by explaining the disaffiliation move' and
inquired what the members wanted to do. Miss Kennedy
testified that she did not join the Union and understood
fully that . she did not have to join the Union.
D. Evidence , of Assistance at the Morgantown, West
Virginia, Office
Dr. Hubert Marshall, presently associated with the
Washington office and formerly the area medical adminis-
trator in the Morgantown , West Virginia, office from
October 1951 ; to - December 31, 1969, and . clearly a
supervisor,- has been a union member since 1950 . He cast a
mail ballot in the disaffiliation referendum in 1968 . He also
signed a new checkoff authorization after the UMWA
affiliation . Dr. Marshall, credibly testified that he held no
position with the Union in the Morgantown office in the
years, 1968 and 1969 ; but that at the request of the
employees, he-chaired two or, three union meetings in the
Morgantown area - office, the last time in June 1969. Dr.
Marshall testified credibly, and I find , that some, time in
the year 1969, at the employees ' request, he chaired a
meeting that elected a new corresponding secretary to
succeed Mrs . Claudia Wood, who resigned on account of
illness . Dr. Marshall testified, and I find, that he called the
meeting to order, asked for the report of the nominating
committee , entertained the motion and called for the vote.
Dr. Marshall credibly testified that he did not nominate
the candidate and say anything to influence the voting. He
testified he chaired the meeting only as an accommodation
to the- employees and to- "keep ,peace in the family." In
October 1968 , Dr. Marshall gave permission to four
employees ;in, the : Morgantown office to attend a union
meeting in Washington and gave them administrative pay
for i day.
hospital and medical care-benefits. They were given by the
Respondent only to union members. However, this
practice was discontinued 'by the Respondent on January
17, 1969, when Josephine Roche, director-trustee of the
Respondent, issued a memoranda, to area administrators
directing that hospital and medical care coverages should
not be denied to employees who were nonmembers of the
Union. I find that this practice which prevailed prior to
January 17, 1969, violated Section- 8(a)(1), (2), and (3) of
the Act because it discriminated against nonmembers of
the Union, thereby encouraging membership in the Union.
Since this ' practice was voluntarily discontinued by the
Respondent on January 17, 1969, and there is no evidence
that any nonmember was prejudiced by the practice prior
to January ' 17, 1969, a remedy is not recommended for the
violation. - -
F. Analysis and Conclusions
I have concluded that by the following conduct of the
Respondent and/or its supervisors, the Respondent, in
violation of Section 8(a)(1) and (2) of the Act, interfered
with the administration of the Union and contributed
financial or other support to it: 7
1. The conduct of supervisors Thomas Fulton, Jr., and
Ada Kruger in holding the positions of union correspond-
ing secretary, respectively, in the Johnstown and Denver
offices, wherein they attended to such functions as securing
new union , memberships and checkoff authorizations and
corresponded on intraunion affairs with--the Union--at
Washington. Local 63¢, Plumbers [Detroit Association of
Plumbing Contractors] v.. N.L.R,B., 287 F.2d 354
(C A.D.C.).
2. The conduct of Ada Kruger in calling union
meetings at the Denver office for the purpose of carrying
out intraunion business and participating in the transaction
of union business in such meetings . Local 636, Plumbers v.
N.L.R.B., supra.
3. The conduct of Area Administrator Dr., Hubert
Marshall in chairing union meetings in the Respondent's
Morgantown area office. Local 636, Plumbers v. N.L.RB.,
supra.
4. The conduct of- Respondent's supervisors in voting
in elections on such intraunion matters - as the selection of
union officers,8 Nassau Suffolk Contractors Association, 118
NLRB 174, 183-184; N.L.R.B. v. Employing Bricklayers
Association, 292 F.2d 627 (C.A. 3).
5. The conduct of the Respondent in giving medical
benefits only to union members 'before January 17,-1969.
E. Evidence of Assistance and Discrimination with
Hospital and Medical - Care Benefits
Prior to January 17, 1969, employees of the Respondent
who were not members of the- Union were not eligible for
7 1 find violative of Section 8(axl) and (2) of the Act only such unlawful
conduct as occurred after May, 12, 1968, the cutoff date prescribed by
Section 10(b) of the Act.,Conduct occurring prior to May 12,1968, has been
considered for the light it throws on conduct occurring in the Section 10(b)
G. The Competency of the Union to Represent
Respondent's Employees
The Respondent's interference, which I have 'found
above, was essentially benign and minimal and in` part
period. General Shoe Corporation, 90, NLRB 1330, enfd . 192 F.2d 504.
8 The conduct of Respondent's supervisors in voting `for disaffiliation
and reaffiliation in March 1968 is barred by Section 10(b) of the Act
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceased after January 17, 1969, pursuant to Director-
Trustee Roche's memorandums The fact that the Respon-
dent permits occasional brief union meetings on company
time and 'premises in the area offices is the type of
cooperation which, under all the circumstances, does not
ascend to the level of illegal interference with the Union's
administration. See Hesston Corporation, Inc., 175 NLRB
No. 1510;: Signal Oil & Gas Co., 131 NLRB 1427, 1432;
Fender Electric Instrument Company, Inc., 133 NLRB 676,
677.
On the basis of the 8(a)(2) and (1) violations found
above, a recommended order to the Respondent to cease
recognizing the Union-as the exclusive representative of
Respondent's employees, . until and unless the Union
should be certified pursuant to a Board-conducted elec-
tion, would have been appropriate to effectuate the policy
of the Act. The General Counsel contends, however, that
the Union, by reason of its ties with the UMWA and the
Respondent, is incompetent to represent Respondent's
employees; therefore, the General Counsel contends the
Respondent's recognition of the Union as the exclusive
representative violates Section 8(a)(2) of the Act and
requires as a remedy and order to the Respondent to
permanently cease recognizing the Union. The following
cases support the General Counsel's, contention: Oregon
Teamsters Security Plan Office, 1'19 NLRB 207, where the
Board, finding illegal 8(a)(2) assistance, ordered the
Respondent Fund to permanently withhold recognition
from the Union in agreement with'the General Counsel's
position' in that case' "that the appropriate remedy is to
debar such Respondents from recognizing Local 223'at any
time in the future." Finding in that case that "The Security
Fund is controlled by the"trustees of various- trust funds
established pursuant to contracts between Teamster locals
and employers; and half of these trustees are designated by
the locals," the Board said:
Clearly, Local223 is not competent to bargain with
itself concerning the terms of employment of its 'own
employees. Such bargaining would necessarily, be .'a
mere sham and notgenuine collective bargaining. Nor
do we believe that -there could be any effective
collective bargaining by Local 223 for the employees of
Local 206, or Security Fund, in view of the common
bond that Local 223 and such other Respondents have
with the Teamster Organization. As the Board,stated in
Bausch & Lomb Optical Company, 108 NLRB 1555,
1559, a Union must approach the bargaining table
"with the single minded purpose,,of protecting and
advancing the interests of the employees who have
selected. it as their bargaining agent and there must be
no ulterior purpose.' Where, as, here, a union has
allegiances which conflict with that purpose, we do not
believe 'that it can be a proper representative of
employees. "
In Welfare and Pension Funds, 178 NLRB No. 3, the
Board, relying on Oregon Teamsters Security Plan Office,
supra,' Bausch and Lomb, supra, and 'General Teamsters,
9 Mrs. Roche's January 17, 1969, memorandum did not forbid the
practice of supervisors voting in union elections.
10 In Hesston Corporation, Inc., supra, the Board found no violation,
though the record showed the Union conducted internal business on
Chauffeurs, etc., 139 NLRB No. 39,, dismissed a petition for
representation by -Local 2529, United !Brotherhood of
Carpenters, AFL-CIO. In this case, -it appeared that,, the
employer, Welfare and Pension Funds, was an uninccorpo-
rated association administering employer=and union trust
funds. Each fund had a separate board of trustees .with
equal representation by local unions and ' employers. The
employer's chief administrative employee uwas responsible
to an administrative committee of five =trustees;,-o€, the
Carpenters Welfare Fund of Illinois ., The Funds were
established' and administered for the -,benefit of the
members of various of the Petitioner' s, sister locals. The
Petitioner'was a "semibeneficial" local recently. chartered
by the. Carpenters Union for the purpose of. representing
the employees' of the Employer., It .was, not required -to
submit' any collective agreement ^which it-might -negotiate
to the parent Carpenters Union for approval, rand the
Petitioner did not qualify for strike benefits from - the
parent. It appeared, -however, that the, Petitioner was
permitted, although not required, to join a carpenters' state
or district` council, could obtain a professional negotiator
without cost from the parent upon request, and was
considered to be a subordinate body under the parent's
constitution and bylaws. Under these conditions, the
Board held that the Petitioner was not competent to
bargain for the employees under the reasoning propounded
by the Board in Oregon Teamsters, supra, and Bausch &
Lomb, supra.
In Centerville Clinics, Inc., 181 NLRB-No. '23, anunfair
labor practice case, it appeared that the clinic's governing
board of directors was composed 'almost- entirely of
UMWA members; its services were' extended to miners
and their families; and its funds received from- the- UMWA
Health-and Welfare Funds. The Board, infer, lia, adopted
the findings - of 'the Trial Examiner that the clinic's
recognition of and bargaining with the UMWA affiliated
local union violated Section 8(a)(1) and (2) of the Act: Tire
clinic was ordered to withdraw and withhold `all'r'ecogni-
tion from the UMWA and ifs-local for the reason found by
the Trial Examiner and adopted by the Board; that, there
existed a potential conflict of interest,which `necessarily
deprived the employees of the single minded representa-
tion to which they were entitled.
-H. The Position of the ' Respondent Fund,"and the
Union
The Respondent and the Union take the position that
there is no conflict, of, interest between the Unibn'atid'the
Respondent's employees who they represent.- In this
connection, they contend that the Union' does not'control
the Board of Trustees, as the UMWA has the sole power to
select only one of the three trustees; hence, the UMWA
appointed trustee is `only one of'three voices. Additionally,
they point to the absence of any evidence that the Union
has overreached the employees they represent in dealing
with the Respondent. And' in this connection they point to
the fact that, although there is no written' collective-
company time, used , company ,facilities; conducted steward classes on
company property during working hours , and 'allowed prods ction to, be
interrupted for steward elections wit-bout loss ofpay.-4 '
UNITED MINE WKRS . RETIREMENT FUND 1029
bargaining agreement, through the years the Union by
negotiation has obtained wage, hour,: and fringe benefits
which are more liberal than prevailing area practices."
They also argue that the Trustees are in fact insulated from
negotiations, as they are carried on_ only betwee* Mr.
Boyle, the Funds' negotiating officer, and the local onion
officers.
The Respondent and the Union also assert that Bausch &
Lomb Optical Co., Oregon Teamsters, and. Centerville Clinic,
Incorporated, supra, are distinguishable and for that reason
do not govern the disposition of the case at bar. In Bausch
& , Lomb, the optical workers union was engaged in the
optical -business in direct competition with Bausch &
Lomb. Because of that fact, the, Board concluded that
Bausch &, Lomb had no legal duty to bargain with the
optical workers union, and it dismissed the 8(a)(5)
complaint-against Bausch & Lomb.
In Oregon Teamsters, the funds, in collaboration with the
union, engaged in serious 8(a)(1), (2), and (3) violations to
the, end that the funds employees should be represented by
the Teamsters Union, whereas in the case at bar, the 8(aX2)
conduct is benign and minimal. In that case, one-half of
the trustees of the funds were designated by the Team-
sters, whereas here the trustees are tripartite.
In Centerville Clinic, Inc., it was clear that the Board of
Directors of the Clinic was controlled by UMWA members
and officers, and in contract negotiations, union officers
sat on both sides of the table.
The Respondent and the Union take the position that the
Board should not declare the Union incompetent to
represent the Respondent Fund's employees in the case at
bar, ' just as it refused to find the Union incompetent to
represent the Employer's employees in its Decision and
Order in David Buttrick Company, 154 NLRB 1468 and 167
NLRB 438., In Buttrick, the Employer refused to bargain
with a Teamsters local union on the asserted grounds that
the'Teamsteis pension funds had made a substantial loan
to a competitor, of , the Employer, thus disqualifying the
Teamsters as a representative of Buttrick's employees.
Upon remand from the United States Court of Appeals for
the First,Circuit (361 F.2d 300), the Board reaffirmed its
first determination that the Union was not disqualified by
the Fund's loans to a competing employer from represent-
ing the employees of -Buttrick. The Board said in its
Supplemental Decision and Order, 167 NLRB, 438 at 439:
We find no evidence that the International had been
tempted by the fund's loans to Whiting [the
-competitor] to exercise its limited constitutional powers
over Local 380. There is also no indication on this
record that the general president has ever sought to
alter Local 380s bargaining conduct for any reason.
The possibility that he might intervene in Local 380s
negotiations and submerge the employees' representa-
tional interests in favor of protecting Whiting's loans,
is,,in our opinion, too remote to justify overturning the
employees' clear cut selection of Local 380 as their
11 Fringe benefits which the employees currently enjoy are: Per diem
allowances of $22.50 for lodging and meals; 2 weeks vacation after 1 to 7
years, 3 weeks vacation after 7 years, 4 weeks vacation after 10 years;
accidental death insurance of $100,000; monthly pension benefits at age 65
and 20 , years of service in amounts varying from $200 to $1 ,250 monthly
depending on average salary; death benefits for employees ranging from 3
bargaining agent. This is not to say that we think the
Whiting loans are, completely insignificant .to Local
380's continued existence as statutory bargaining
agent. . . . We shall be most sensitive to future
conduct evidencing pressure constitutional or other, to
bend Local 380s bargaining course towards loan
protection. Existing procedures are available under the
Act to curtail such pressure or, if necessary, even to
withdraw- Local 380s certification in the event ; of
impermissible , pressures . But as this record stands, it
does not support disqualification of Local 380.
The Board ordered Buttrick to bargain with the Union.
On an appeal by Buttrick from the Board's Supplemental
Decision and Order, the First Circuit at 399 F.2d 505
enforced the Board's Order. The court said (p. 507):
We affirm. There is a strong public policy favoring
the free choice of a bargaining agent by employees.
This choice is not lightly to be frustrated. There is
considerable burden on a nonconsenting employer, in
such a situation as this to come forward with a showing
that danger of a conflict of interest interfering, with the
collective bargaining process is clear and present. This,
Respondent has not done.
Under a similar set of acts, in Auburn Rubber Company,
Inc., 140 NLRB 919, the Board permitted a Teamsters
local union to go on the ballot in a representation matter,
notwithstanding the fact a Teamsters =fund had purchased
municipal bonds issued by the City of hemming, New
Mexico, to build a plant occupied by the Auburn, Rubber
Company, whose employees the Teamsters local union was
seeking to represent. The Board held there was no conflict.
'In Alto `Plastics Manufacturing Corp., 136 NLRB No. 70,
the Board, in rejecting a claim that a union should not be
permitted on the ballot because it was, a corrupt "paper
union," announced therationale for its decision as follows:
Under Section 9(c) 1)(A) of the NLRA, as amended, a
labor organization acting in behalf 'of , a group of
employees may file a petition requesting an election. If
the Petitioner herein qualifies as a `labor organiza-
tion' then clearly the Board may not refuse to process
its petition. For, it must be remembered that, initially,
the Board merely provides the machinery whereby the
desires of the employees may be ascertained , and the
employees may select a `good' labor organization, a
`bad' labor organization, or no labor organization, it
being presupposed that employees' will intelligently
exercise their right to select their bargaining representa-
tive. In order to be a labor organization under Section
2(5) of the Act, two things are required . First, it must be ,
an organization in which employees participate; and
second, it must exist -for the purpose, in whole or in
part, of dealing with - employers , concerning wages,
hours, and other terms and conditions of employment.
If an organization fulfills these two requirements, the
fact, that it is an ineffectual representative, that its
contracts do not secure the same gains that other
months salary to 12 months' salary depending on length of service; mileage
allowance for auto of 10 cents per mile; hospital service and surgical-,
medical plan ; a scheduled workday from 9 a.m. to 4:45 p.m. with 45
minutes to lunch ; and periodic general wage mcreases, the last on May 1,
1969, - -
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the area enjoy, that certain of its officers
or representatives may have criminal records, that there
are, betrayals of the trust and confidence of the
membership, or that its funds are stolen or misused,
cannot, affect the conclusion which the Act then
compels ,us, to reach, namely, that the organization is a
labor organization within the meaning of the Act.
In directing an election in Alto Plastics, supra, and
permitting the allegedly corrupt union to go on the ballot,
the Board, alluding to Leedom v. International Union of
Mine, Mill and Smelter Workers, 352 U.S.145, pointed out
that it as limited in its powers to' withhold its processes
except as provided by law.
Upon the basis of the record present in the case at bar,
the Respondent and the Union appear to urge that the
conflict' in. interest, if any in- this case, is as remote as
prevailed= in Buttrick and Auburn Rubber, and was not as
evident in the case at "bar as in Oregon Teamsters,
Centerville Clinic, General Teamster Local, et al., 139 NLRB
605, or Welfare and Pension Funds, 178 NLRB No. 3, where
the Fund's chief administration employee was responsible
to an administration committee of five trustees of the
Carpenters Welfare Fund of Illinois.
It is not unreasonable to argue that since the Respondent
Fund's employees, by a vote of 380 to 4, voted in March
1968 to affiliate with-UMWA, and in May 1968 signed new
checkoff ' authorizations to the Union, the desires of the
employees; merit consideration: In the absence of overt
conduct, evidencing that the Union'' is violating its legal
obligation "to`fairly represent the employees of the Fund, it
is reasonable to extend the usual presumption of legitimacy
to their representation. This legal presumption -was
expressed by the Supreme Court in Local 357, International
Brotherhood of Teamsters, 365 U.S. 667, 676, when in
speaking` about a' union's administration of its hiring hall it
said, "We cannot assume that' a union conducts its
operations in violation of law... So, in the case at bar, it
may be' plausibly argued that the presumption of legitima-
cy be given to the Union's representative status, notwith-
standing anappr'eliension, growing out of the relationship
between' the Union,' the Fund, and the UMWA, that the
day may come when the Union will be tempted to breach
its obligation to represent the employees fairly. There is
nothing in the record to disclose that the Union has
breached itsobligation of fair and good -faith representa-
tion. 1 do not consider the absence of a written collective-
bargaining agreement as reflecting on the Union's good
faith in view, of the fact that the Respondent has a well
defined program prescribing job classifications, wage rates,
schedule of hours, and fringe benefits. The employees are
the ;best judge of whether they are, satisfied with a union's
representation. They have selected the Union and have
made no move to decertify it. Indeed, Section 9 of the Act
expresses the Congressional will to "assure, to employees
the fullest freedom in exercising the rights guaranteed
by this Act." '-But, as the Board emphasized in
Alto Plastics 'Manufacturing Corp., - 136 NLRB 850, the
Board will in ,an appropriate case decertify a union which
violates its obligation as 'employee representative. See e.g.,
Hughes Tool Company, 104 NLRB 318. An order in this
case upon the Respondent Fund to cease-recognizing the
Union ' s the representative of its employees would be
tantamount to a, decertification, strong medicine -which,the
Board reserves for extreme situations of proven breach of
the union's duty to fairly represent-employees.
It is evident from the record that. the Respondent Fund
and the Union in this case are not hostile adversaries.
Indeed, 'the record reflects that they are trusting -and
cooperative. So far as the record shows, neither has ever
requested that the wages, hours, and working conditions be
reduced to a collective-bargaining agreement,-but they are
formalized and well defined. Improvements and wage
adjustments are periodically granted; grievances are
processed. There is a'sense of cooperation between Union
and Respondent . But this is not to , be condemned as
unlawful.
In Modern Plastics Corporation v: N.LR.B., 379 F.2d 201
(C.A. 6, 1967), in denying enforcement-of a Board Order,
the court said at page 204:
There isa line between cooperation and domination,
and the purpose of the Act is to encourage cooperation
and discourage domination. Chicago Rawhide Manufac-
turing Co., v. -National Labor Relations'Board,-221 F.2d
165 (C.A. 7, 1955),' Coppus Engineering Corp. v.
National Labor Relations'Board 240 F.2d 564 (C.A. 1,
1957), General Engineering Co. v. National Labor
Relations Board, 311 'F.2d •570 (C.A. 9, 1962). '
The Sixth Circuit in Modern Plastic - `Corporation v.
N.L.R.B., supra, in support of its position said at page 203:
Commenting on the restraint which should be
exercised by a Court when the ' relations between the
labor organization' and the Company are harmonious,
the Court, in Humble Oil & Refining Co. v. National
Labor Relations Board, 5 Cir., 113 F.2dd 85, said:
... The Board is not made - either guardian`or
ruler over the employees, but is only empowered
to deliver them from restraint at the hands of the
employer when it exists. If employer interference
has been slight, and not coercive or oppressive,
suppression of a majority , organization whose
members are not ' complaining of interference
would be an extreme step.
Mindful that the Board has frowned on representation of
health and welfare ` fund 'employees by unions affiliated
with a union which through trustees jointly administers the
fund, because of. the potential conflict of interest which
inheres in the relationship, I'have ,nevertheless marshalled
above my understanding_ of the arguments jointly present-
ed by the Respondent„ and ;the Union fora better
perception of the issues.
I am, of course,, bound by the ,Board's decisions in
Oregon Teamsters Security Plan, Centerville Clinic, and
Welfare and Pension Funds, supra.
That being the case,/and consistent with the Board's
basic policy expressed, in those cases, I find that the Union
in the' case at bap is incompetent to represent the
employees of the Respondent -because of the potential
conflict of interest which grows out' of the relationship of
the Union to the UMWA which, together with, the coal
operators, controls the operation of the Respondent. This
conflict in interest prevents the Union from exercising the
UNITED MINE WKRS. RETIREMENT FUND
single-minded purpose of protecting and advancing the
interests of the-employees who have selected it as their
bargaining agent. Contrary to the contention of Respon-
dent and the Union, I find that the third trustee, Miss
Roche, appointed by agreement of the UMWA and the
coal operators is not "neutral" in a real sense , for she is
appointed and retains her position by agreement of the
UMWA. That being the case, her day-to-day conduct as
the third trustee and as director of the Respondent Fund is
subject to the continuing influence of the UMWA, who,
with the coal operators, is responsible for her appointment
and tenure of office. It is clear that the UMWA, which is
interested in the prosperity of the Respondent Fund, has
under the UMWA constitution power to control Local
Union 13410, the representative of the Respondent's
employees. Although there is no evidence that this
potential conflict in interest has yet resulted in overt acts
unfair ' to the employees or to, their clear detriment,
notwithstanding the Union's representation of the employ-
ees for 22 years, this consideration has not moved the
Board heretofore to stay its hand. Rejecting a similar
argument advanced by the Trial Examiner in Bausch &
Lomb, the Board said at page 1559:
In the opinion of the Trial Examiner, as there is no
evidence that the Union was actually bargaining for the
benefit of its Company rather than for the welfare and in
the interest of the employees of the Respondent as
employees, and no bad faith dealing by the Union has
been shown, there is no basis for finding that the Union
became disqualified to act as bargaining representative.
While we agree with, the Trial Examiner that no
evidence of specific abuse by the Union in the
bargaining relationship has been presented, we cannot
ignore or disregard the innate danger involved were we
to order this Respondent to bargain with a union which
is also, its business cbmpetitor.12
I am therefore coast' aired to conclude that the Respon-
dent's conduct in recognizing and dealing with the Union
is violative of Section 8(a)(1) and (2) of the Act.
IV. THE EFFECT, OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, as set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
12 It is noted, however, that in the Buttrick case, supra, where a
Teamsters fund had made a loan to a competing employer, the Board,
holding that the potential conflict of interest was too remote to justify
overturning the employees ' choice of the Teamsters local union, refused to
disqualify the union, but at the same time cautioned that it would be "most
1031
the several states and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the. following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) ' of the Act.
2. United Mine Workers of America and Local Union
13410, United Mine Workers of America, affiliated with
UMWA, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By the conduct of some of Respondent's -supervisors
in holding the position of, and carrying out- the duties of,
corresponding secretary, by voting in union elections, by
calling, participating in, conducting, and presiding at union
meetings, and by soliciting and procuring union member-
ships and union checkoff authorizations, the Respondent is
interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed to them by Section 7 of
the Act, and is interfering with-the administration of Local
Union 13410, United Mine Workers of America, affiliated
with UMWA and contributing financial and other support
to it, and thereby has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) and
(2) of the Act.
4. By denying to nonmembers of the Union certain
medical and hospital care benefits which were given to all
union members, the Respondent discriminated against
employees because of their nonmembership in the Union,
in violation of Section 8(a)(1) and 3) of the Act.
5. By reason' of the Union's relationship to UMWA
and the Respondent , it is incompetent to represent the
employees of the Respondent because of a conflict of
interest inherent in that relationship which prevents the
aforesaid Union from exercising the single -minded purpose
of protecting and advancing the interests of the employees
it represents. --
6. The Respondent's recognition of and dealing with
the aforesaid Union as the representative of its employees
is violative of Section 8(a)(1) and' (2) of the -Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from 'publication.]
sensitive to future conduct evidencing pressure to bend Local 380
bargaining course towards loan protection ." The Board further emphasized
that "existing procedures are available under, the Act to curtail such
pressure, or, if necessary, even to withdraw Local 380's certification."