Progressive Mine Workers of America

PROGRESSIVE MINE WORKERS OF AMERICA, DIST. 1 Progressive Mine Workers of America , District No. 1 (Sherwood-Templeton Coal Company, Inc.) and Raymond Smith, Jr. Progressive Mine Workers of America District No. 1 (Sherwood-Templeton Coal Company, Inc. and Lew Smith, et al. Cases 38-CB-229 and 38-CB-240 February 10, 1971 DECISION AND ORDER BY MEMBERS FANNING, ]BROWN, AND JENKINS On September 21, 1970, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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 the Respondent filed exceptions and a brief in support of said exceptions, and the General Counsel filed a brief in support of the Trial Examiner's Decision. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent indicated herein. This is the fourth in a series of cases involving the Welfare and Retirement Plan of the Progressive Mine Workers .2 A skeletal analysis of the plan and its ad- ministration appears in the Board's decision in the third case, as follows: This plan is supported solely by employer contri- butions based on the tonnage of coal mined, and administered by trustees appointed by the Em- ployers and the Union. Since the inception of the Plan the Union continues to negotiate the amount of tonnage contribution as well as changes in provisions of the Plan. Accounting is by individual mine, and, in turn, by individual employee allocation. Allocations, and forfeitures also, are made annually on dates which have been selected as convenient for accounting pur- poses. An employee's right to his allocation is not i Pursuant to the provisions of Section 3(b) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel 2 Coal Producers' Association of Illinois, 165 NLRB 337; Local Union No 167, Progressive Mine Workers of America (Peabody Coal Company), 173 NLRB 237, enfd 422 F.2d 538 (C.A. 7), cert denied 399 U S. 905 (1970); Peabody Coal Company, 180 NLRB No. 38 489 vested. The plan requires continued membership in good standing for participation. Under the Union's Constitution membership is lost automati- cally when a member accepts employment in the coal industry in a mine not under contract with the Progressive Mine Workers. Membership, however, may be retained when a member accepts employ- ment at another mine represented by the PMW, or accepts work outside the coal industry. The Plan thus discriminates on the basis of union member- ship? This case concerns charging parties who, between May and November 1969, went to work at mines whose employees are not represented by the PMW, but by the United Mine Workers. All had been em- ployed at the Pioneer Collieries mine which was aban- doned on or about May 29, 1969. Two-Raymond Smith, Jr., and Russell Green-immediately took up employment in the coal industry, Smith about May 12 and Green on May 25. One, Lester Gray, had been discharged at Pioneer in 1967, but until June 23, 1969, had worked outside the coal industry and had become a member of the Machinists Union. Lew Smith and Walter Philbee waited until August 4 and November 8, respectively, before returning to the coal industry. In the interim Philbee worked in another industry and became a member of the United Auto Workers. Ray- mond Smith's application for pension payments after leaving Pioneer was not processed by the Respondent. The applications of the others resulted in their receiv- ing one or more pension payments from their allocat- ed funds at the time they returned to the coal industry, or by the time the fund trustees were made aware of that fact, Gray and Green having volunteered this information to the trustees. Gray testified that he knew that if he went to work in the coal industry his payments would be stopped. Return to the coal indus- try was the reason given by the trustees in letters discontinuing payments. Along with working at a mine represented by another union, it also appears to have been the reason why Raymond Smith's applica- tion was not processed. Consistent with our earlier findings concerning this plan we agree with the Trial Examiner that the Re- spondent violated Section 8(b)(1)(A) and 8(b)(2) by maintaining and enforcing provisions of the plan which render miners ineligible for future participation in the plan upon loss of union membership due to acceptance of employment in coal mines not repre- sented by the PMW Union; by refusing to accept a tender of dues by Raymond Smith, Jr., as a service fee for continued eligibility under the plan; and by the 3 We note Respondent's assertion in its brief that recently, in September 1970, "District No. I held a Constitutional Convention and adopted amendments to the Constitution so as to bar any discriminations in the requirements for union membership and to allow the payment of Welfare and Retirement Service Fee " 188 NLRB No. 74 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat to other employees-such as those at the May 20 membership meeting of the Respondent's Local 26-that union membership and continued eligibility to particpate in the plan would be lost solely because of acceptance of employment in coal mines not repre- sented by the PMW. We do not, however, agree with the Trial Examiner that Section 8(b)(1)(A) and 8(b)(2) was also violated by the Respondent's refusal to make pension payments to employees who had returned to work in the coal industry, as distinguished from ineligibility by auto- matic loss of membership as indicated above. It is true that such refusal occurred in the context of accept- ance of work at mines represented by another union, following a change in employment which was calcu- lated to result in loss of membership in the PMW Union. But the plan itself specifically provides that payments under it are to be made only to those who have actually retired from the coal industry. The ap- plicable portion is from Section 6. "ACTUAL RE- TIREMENT-REEMPLOYMENT" which appears in the first case of this series.4 We take official notice of the provision. The Trial Examiner here, at footnote 15 of his Decision, discussed the circumstances which led to the plan not being fully introduced in evidence in this record, and, having been made aware of no spe- cific provision of the plan "to deny immediate pay- ments to all employees who return to the coal industry" he, in effect, discounted the Respondent's basis for the denial of payments as set forth in letters to Gray, Lew Smith, and Green quoted in his deci- sion : reemployment in the coal industry. Instead the Trial Examiner viewed the refusal as controlled solely by the discriminatory features of the plan to require continued membership and to penalize those who lost it by going to work at UMW mines. Although we are, in agreement with the Trial Examiner, again finding a violation arising out of the existence and enforce- ment of the said discriminatory features, we cannot agree that the refusal to make payments prohibited by the plan because of return to the coal industry re- strained and coerced employees in the rights guaran- 4 See Coal Producers' Association of Illinois, 165 NLRB 337, 340-341, wherein the Trial Examiner quoted from Section 6. ACTUAL RETIRE- MENT-REEMPLOYMENT: A. An employee must actually retire Retirement shall be on a volun- tary basis, but an individual shall not be eligible to participate unless he actually retires from the coal industry. In the event such member-em- ployee shall return to the coal industry after such retirement, or pay- ments to him shall be suspended, then he shall not be entitled to retirement unless he again meets the eligibility requirements for Retire- ment Pension upon submitting a new application and upon his again actually retiring. We note that the Special Allocation Plan applicable to the Pioneer Collieries Mine dated July 17, 1958, which is in evidence here, states at PART II- RETIREMENT-PENSION that Plan No. 7 governs unless otherwise provid- ed. Amendments to the Special Allocation Plan from September 1958 to July 30, 1969, also in evidence, show no change with respect to the necessity for actual retirement from the industry. teed in Section 7 of the Act in violation of Section 8(b)(1)(A), or in violation of 8(b)(2) by causing or attempting to cause an employer to discriminate against his employees in violation of Section 8(a)(3) of the Act. In itself this feature of the plan postponed the receipt of pension benefits for a reason the validity of which is unchallenged, and without apparent depriva- tion of rights to which these employees were entitled. Inasmuch as all of the charging parties here had returned to the coal industry at the time their pension payments were stopped, or, in the case of Raymond Smith, Jr., at the time he sought to apply for his, we find that all were ineligible to receive payments at those times. Accordingly the allegations concerning the refusal to make "Pension Plan benefit payments" will be dismissed from the two complaints. In addi- tion we shall dismiss in its entirety the complaint in Case 38-CB-240 wherein Gray, Lew Smith, Green, and Philbee are the charging parties. The complaint in the companion case, 38-CB-229, is an adequate basis for the findings we now make. These findings affect the rights of all former employees of Sherwood- Templeton Coal Co., Inc., at the Pioneer Collieries mine who meet the valid eligibility requirements of the plan and who had unused allocations posted to their credit at the time that mine shut down.' Thus we do not reach the 10(b) question as to Gray arising out of the January 9, 1970, charge in the later filed case, or the Trial Examiner's continuing violations theory with respect to applications for pension payments and termination thereof as to which he would compute the 10(b) period from the appropriate date subsequent to loss of membership. In Case 38-CB-229 the com- plaint is supported by the charge of Raymond Smith, Jr., which was filed on November 12, 1969, and served on the Respondent the next day. The refusal of the Respondent at the May 20 meeting to accept dues from Smith, or dues in the nature of a service fee, occurred within the 10(b) period. See Local Union No. 167. PMW (Peabody Coal Co.), 173 NLRB 237, fn. 1. The May 20 meeting also furnishes factual support for the other violations here found., 5 As in Peabody Coal Company, 180 NLRB No . 38, we see no distinction, in the light of record testimony, between the pension rights of employees who tendered dues and those who did not (or who in effect discontinued doing so when their benefit checks deducting dues were stopped) because they knew they could not belong to two unions in the coal industry at the same time. 6 The May 20 meeting was a membership meeting of Respondent's Local 26, a Local having members at Laura, Illinois, where the Pioneer Colhenes mine is located It was attended by Lester Boetta, the International secretary- treasurer, and Dan Villa, cotrustee of the Welfare and Retirement Fund, among others, and its purpose was to explain how to fill out applications for pensions in view of the impending loss of employment due to closing of the mine The Trial Examiner referred to this meeting and Raymond Smith's being told during it that "his offer of dues could not be accepted because he had taken employment at a mine not represented by PMW and could no longer belong to PMW." Further testimony of Smith emphasizes the fact that the words "a mine not represented by the PMW," as used in the Respondent's Constitution and in the complaints, appear to be synonymous PROGRESSIVE MINE WORKERS OF AMERICA, DIST. 1 491 CONCLUSION OF LAW In lieu of the Trial Examiner's Conclusion of Law 3, insert the following as Conclusions of Law 3 and 4: 3. "By maintaining and enforcing provisions of the plan for administering the Welfare and Retirement Fund which render miners ineligible for participation in benefits upon loss of union membership due to acceptance of employment in coal mines not repre- sented by PMW; by refusing to accept tender of dues as service fees for continued participation in the Plan's benefits because of acceptance of employment in mines whose employees are not represented by the PMW; and by threatening employees with loss of pension benefits upon losing union membership for the same reason, Respondent has engaged and is en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and 8(b)(2) and Section 2(6) and (7) of the Act." 4. "By refusing to continue pension payments un- der the plan to employees who had returned to work in the coal industry at the time their said payments were stopped, and by refusing to process an applica- tion for such payments because the employee had already returned to work in the coal industry, the Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Prog- ressive Mine Workers of America, District No. 1, Springfield, Illinois, its agents, officers, and represent- atives, shall: 1. Cease and desist from: (a) Maintaining and enforcing provisions of the contractually established plan for administering the PMW Welfare and Retirement Fund which deny ben- efits to miners or their dependents solely because they have lost their good standing in a local union of Prog- ressive Mine Workers of America, District No. 1, as a result of accepting employment in mines whose em- ployees are not represented by Progressive Mine Workers of America. (b) Withholding from miners (or their dependents) with mines represented by another union . Smith went on to testify that a discussion occurred concerning why others from Local 26 "went to work at other places andjomed other unions" and were still entitled to their pensions while he, Smith, was not, and he ended his account of this discussion as follows "Mr. Boetta said whenever you leave the Progressive Mine Union and go to work with another coal industry [sic] which is under another union contract, you automatically lose being a member of the Union ." (Emphasis supplied) who lose their membership solely as a result of accept- ing employment in mines whose employees are not represented by Progressive Mine Workers of Ameri- ca, PMW Welfare and Retirement Fund benefits to which they would otherwise be entitled, so long as such miners tender periodic service fee payments uniformly required. (c) Refusing to accept the union dues of Raymond Smith, Jr., as a service fee for continued participation in the PMW Welfare and Retirement Fund because he took employment at a mine where the employees are not represented by the Progressive Mine Workers of America. (d) Threatening former employees of Sherwood- Templeton Coal Company, Inc., at its Pioneer Col- lieries mine with loss of benefits from the PMW Wel- fare and Retirement Fund in the event that they accept employment at a mine not represented by Progressive Mine Workers of America. (e) In any like or related manner restraining or coercing employees in the exercise of their rights un- der Section 7 of the Act, except insofar as those rights may be limited by a valid union-security provision under the first proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify the cotrustees of the PMW Welfare and Retirement Fund that Raymond Smith, Jr., and other former employees of Sherwood-Templeton Coal Co., Inc., at the Pioneer Collieries mine who meet the valid eligibility requirements of the plan and who had un- used allocations posted to their credit at the time that mine shut down, have been continuously eligible for benefits under the plan for administering the fund and shall remain eligible so long as they make peri- odic service fee payments uniformly required. (b) Accept the rejected dues of Raymond Smith, Jr., as service fees if again tendered. (c) Post at its office, meeting halls, and offices of its constituent local unions, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 38, after being duly signed by Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. Copies of said notice shall be mailed by Respondent to all for- mer employees of Sherwood-Templeton Coal Compa- ' In the event that 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 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." 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ny, Inc., who had worked at its Pioneer Collieries mine and had allocations in their PMW Welfare and Retirement Fund accounts on May 29, 1970, so that they may be informed of their possible rights. (d) Notify the Regional Director for Subregion 38, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint in Case 38-CB-229, insofar as it alleges unfair labor practices not found herein, be, and it hereby is, dismissed, and that the complaint in Case 38-CB-240 be dismissed in its entirety. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL direct our agents, the cotrustees of the PMW Welfare and Retirement Fund, not to give effect to those provisions of the plan for administering the fund which deny benefits to miners and their dependents solely because they have lost their good standing as members of a local union of Progressive Mine Workers of America, District No. 1, as a result of accepting employment in mines whose employees are not represented by Progressive Mine Workers of America. WE WILL direct our agents, the cotrustees of said fund, not to withhold from miners (or their dependents) who lose their membership in our organization, solely as a result of accepting employment in mines whose employees are not represented by Progressive Mine Workers of America, PMW Welfare and Retirement Fund benefits to which they would otherwise be entitled, so long as such miners tender the periodic service fee payments uniformly required. WE WILL accept the rejected dues of Raymond Smith, Jr., as service fees if again tendered and WE WILL NOT refuse to accept the union dues of Raymond Smith, Jr., or any other miner as a service fee for continued participation in the PMW Welfare and Retirement Fund because they have taken employment at a mine where the employees are not represented by Progressive Mine Workers of America. WE WILL NOT threaten employees at PMW mines with loss of benefits from the PMW Welfare and Retirement Fund in the event that they accept employment at a mine not represented by Progressive Mine Workers of America. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of the rights under Section 7 of the Act, except insofar as those rights may be limited by a valid union-security provision under the first proviso to Section 8(a)(3) of the Act. WE WILL notify the cotrustees of the PMW Welfare and Retirement Fund that Raymond Smith, Jr., and other former employees of Sherwood-Templeton Coal Co., Inc., at the Pioneer Collieries Mine who meet the valid eligibility requirements of the plan and who had unused allocations posted to their credit at the time that mine shut down, have been continuously eligible for benefits under the plan and shall remain eligible so long as they make periodic service fee payments uniformly required. PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT No i (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Savi}igs Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON. Trial Examiner : The charge in Case 38-CB-229 was filed by Raymond Smith, Jr., on November 12, 1969, and was served on Respondent Progressive Mine Workers of America, District No . 1, on the followin day. On December 15, 1969, a complaint in that case issued. The chargge in Case 38-CB-240 was filed by Lew Smith on Janu- ary 9, 1970, and was served on Respondent on January 12, 1970. On February 9, 1970, a complaint issued in that case, and on February 17, 1970, the Regional Director issued his order consolidating the two cases for purposes of hearing. Thereafter, amended charges were filed in both cases and amended complaints issued. The amended complaints allege that Respondent refused PROGRESSIVE MINE WORKERS OF AMERICA, DIST. 1 to accept from Raymond Smith, Jr., a tender of a service fee required for continued participation in its Welfare, Retire- ment, and Pension Plan, refused to make pension payments to Raymond Smith, Jr., Lew Smith, Russell Green, Walter Philbee, and Lester Gray after various dates set forth there- in, and caused funds allocated to them under the Pension Plan to be forfeited, all because the named persons accepted employment in the coal industry at mines not under con- tract with Respondent . The amended complaints allege fur- ther that Respondent has maintained in effect and enforced provisions ofpthe Pension Plan which make membership in Respondent, pursuant to its constitution a condition ofeli- gibility to receive pensions after retirement . The complaints allege that by this conduct , Respondent has violated Section 8(b)(2) and (1)(A) of the Act. In its answer, Respondent denies the commission of any unfair labor practices. The issues raised by the pleadings and the facts are related to those before the Board in three earlier cases.' A hearing was held before me in Springfield , Illinois, on April 23 and 24, At the close of the hearing oral argument was waived, and the parties were given leave to file briefs which have been received from the General Counsel and Respondent . After receipt of the briefs I invited the parties to submit supplemental briefs with respect to two issues. A supplemental brief has been received from the General Counsel. Upon the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Coal Producers' Association of Illinois, hereinafter refer- red to as the Association, is an organization of coal mine operators and is the authorized agent of its members to engage in collective bargaining on their behalf. During the calendar year 1969, a representative period, members of the Association collectively sold and shipped coal valued in excess of $50,000 from the State of Illinois to points outside the State. At all times material Sherwood-Templeton Coal Company, Inc., hereinafter referred to as Sherwood, was engaged in the coal mining business and was a member of the Association. During 1969, Sherwood sold coal valued in excess of $50,000 to other enterprises over which the Board would assertjurisdiction. I find that Sherwood is an employ- er within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. If THE LABOR ORGANIZATION INVOLVED Progressive Mine Workers of America, District No. 1, is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Relevant Contract and Constitutional Provisions Respondent has had a contract for some years with the Association regulating the terms and . conditions of em- ployment of the employees at the mines of the Association's members represented by Respondent. The agreement re- 1 Coal Producers ' Association of Illinois, 165 NLRB 337, Local Union No 167, Progressive Mine Workers of America (Peabody Coal Company), 173 NLRB No 189, enfd. 422 F 2d 538 (C.A 7), cert denied 399 U.S. 905; Peabody Coal Company, 180 NLRB No 38. 493 quires membership in Respondent as a condition of employ- ment at the covered mines . The agreement provides for payment of 40 cents per ton of coal produced by the opera- tors to the Welfare and Retirement Fund created by agree- ment of the parties to provide benefits to the employees, their families, and dependents for medical or hospital care, pensions on retirement or death, and other stated purposes. The fund is administered by cotrustees named by the parties who are given full authority with respect to questions of coverage and eligibility, and other related matters. The cotrustees are charged with designating a portion of the payments they receive as a separate fund to be used for providingg annuities for the employees and beneficiaries of the emplooyees of the contributing parties . The agreement provides that the basis upon which payments will be made shall be established in a written plan or plans to be adopted by the cotrustees and ratified -by a joint state executive board. Overall administration of the Welfare and Retirement Fund is governed b what is known as Plan 7 , as amended from time to time . In addition, the cotrustees have adopted a number of Special Allocation Plans which supplement Plan 7 in governing the administration of the Fund with respect to employees at individual mines . A Special Alloca- tion Plan for the administration of the Welfare and Retire- ment Pension Fund at the Pioneer Collieries Mine operated by Sherwood at Laura , Illinois, was adopted by the cotrus- tees on July 17, 1958, and thereafter amended from time to time . The issues in this case anse out of the pension claims of employees at the Pioneer Collienes Mine under Plan 7 and the Special Allocation Plan. The Special Allocation Plan for the Pioneer Collieries Mine provides for the establishment of accounts for each employee to which the money contributed by the mine is to be allocated in accord with prescribed standards. In its general provisions, the Special Allocation Plan provides for payment of an immediate monthly pension to an employee with specified minimum periods of service at a contributing mine in the event that he is discharged or loses his employ- ment as a result of abandonment of the mine . The total amount to be paid such a claimant is limited to the total amount allocated to his account. Under the Special Allocation Plan, a claimant can contin- ue to draw his pension if he takes other employment outside the coal industry . However, if he takes new employment within the coal industry , the Special Allocation Plan pro- vides other consequences . If he takes employment at a mine contributing to the Fund, his payments are to be suspended. His future rights to a pension then vary depending upon whether or not there is an allocation plan in effect at the mine of his new employment , but in substance the Special Allocation Plan provides for deferral of further payments until his retirement from the mine of his new employment, at which time he will receive the benefit of the remaining amount allocated to his account at the abandoned mine. If the claimant takes employment in the coal industry at a mine not represented by Progressive Mine Workers his eligi- bility for further payments is governed by the following provisions of the Special Allocation Plan, Plan 7, and Respondent's constitution all of which are at issue herein: SPECIAL ALLOCATION PLAN Part I-General Provisions Sec. 11. Union Membership-All persons mentioned herein except widows and dependents shall contin- 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uously remain members in good standing of a Local Union of the Progressive, Mine Workers of America, District # 1, to be eligible hereunder . In the event a member shall fail to continuously remain a member in good standing, any moneys allocated to his individual accounts shall be transferred to the regular Welfare Fund or the Retirement-Pension Fund, as the case may be, of said mine. Dropping of such membership shall automatically forfeit any funds then allocated or the right to any future allocation, and reinstatement to membership thereafter shall not reinstate any allocated moneys thus forfeited, unless proof is made that such dropping was in error and such member is reinstated in accordance with the constitution of the Union, provided such reins- tatement must be before the annual allocation period. Such moneys so forfeited shall be placed in the Mine Retirement Pension Fund of the Mine Welfare Fund, as the case may be , for future allocation to eligible member-employees.2 Plan 7 General Provisions Section 45.... Notwithstanding any allocation plans to the contra- ry with regard to Union membership requirements, in the event a mine is abandoned and because of such abandonment a member-employee cannot obtain em- ployment at another mine under contract with the Progressive Mine Workers of America and such mem- ber-employee, through no choice of his own is forced to give up his membership in the Union because of such employment at another mine, then his allocated mon- eys shall not be forfeited until the third allocation date following the abandonment of such mine. If such mem- ber-employee prior to said third allocation date again takes up employment and becomes a member in good standing of a local union affiliated with Progressive Mine Workers of America then his allocated funds may be transferred and benefits may be payable to him as provided in the benefits applicable at his mine. In the event he has not taken up employment at a mine under contract with the Progressive Mine Workers of America and has not become a member in good stand- ing of said union before said third allocation date then his moneys shall be forfeited as provided in said alloca- tions plans? CONSTITUTION OF DISTRICT NO. I PROGRESSIVE MINE WORKERS OF AMERICA Article VI Section 5.... Any member of the P.M.W. of A. accepting employment in the coal industry in any mine not under contract with the P.M.W. of A. or Interna- 2 This section is set forth as amended on September 24, 1958 Part I sec 9(g) contains a similar disqualification applicable to payments provided for in sec. 9 3 The quoted paragraph was added to sec 45 by amendment dated October 27, 1965 tional Union District 101, be [sic] immediately dropped from membership. B. The Alleged Discriminatees All of the alleged discriminatees worked for Sherwood at the Pioneer Collieries mine, were members of Respondent while employed there, and had allocated funds posted to their accounts under the Plan arising out of their employ- ment. One of them left his employment in 1967 as a result of discharge. The remaining alleged discriminatees left their employment as a result of an announcement in 1969 that the mine was to be abandoned. Lester O. Gray worked at the Laura Mine for approxi- mately 15 years until November 1967, when he was dis- chargged. Followin his discharge he worked until June 1969 for the Admiral Corporation outside the coal industry. While there he was a member of the Machinists Union. In June 1969, Gray went to work for the Peabody Coal Com- pany at its Mecco mine in Victoria , Illinois. After starting work at the Mecco mine , Gray joined the United Mine Workers, hereafter referred to as UMW, which represents the employees at that mine. After Gray left the Pioneer Collieries mine in 1967 and during his employment at Admiral Corporation , he received monthly pension payments from the Fund pursuant to Plan 7 and the Special Allocation Plan. During that period Gray remitted local dues directly to Local 26,4 and the remainder of his PMW dues was deducted monthly from his pension check. As of June 1969, Gray had paid local dues in advance to January 1, 1970, and was otherwise current. When Gray started to work at the Mecco mine , he noti- fied the cotrustees voluntarily by letter of his new emplo yy -ment .5 The cotrustees responded by letter dated July 17, 1969, as follows: Thank you for your letter of June 26, 1969 advising us of your employment as of June 23, 1969. According to providions in the Plan, a member is not eligible for pension in the event he returns to the indus- try. Therefore, since your re-employment is in the in- dustry, we have no alternative than to withdraw your application from .the active file, and advise you that you will receive no further checks. Following receipt of that letter , Gray received no further pension payments, and Gray made no further tender of dues to Respondent. Raymond Smith, Jr., worked at the Pioneer Collieries mine from September 12, 1951, until May 12, 1969. While there he was a member of Respondent . Shortly before leav- ing that mine, its superintendent informed him that the mine was closing, and he started to look for another job. Smith found work at Peabody's Mecco mine and started work there immediately after leaving the Pioneer Collieries mine. At the Mecco mine , he became a member of UMW. On May 20, Smith attended a meetin.& of Local 26 of Respondent at the washhouse of the Pioneer Collieries mine. As set forth in greater detail below, at that meeting Smith inquired about paying his union dues. He also asked Lew Smith, the financial secretary-treasurer of Local 26, to mail a pension application to Respondent for him. Lew Smith mailed the pension application, but Raymond Smith never received a pension or a response to his application. Lew Smith worked at the Pioneer Collieries mine from September 4, 1962, until May 29, 1969, when the mine closed. He was a member PMW while employed there, and 4 Local 26 was comprised of the PMW members employed at the Pioneer Collieries Mine. 5 Gray testified that every so often he received forms to return and knew that if he went to work in the coal industry his payments would be stopped. PROGRESSIVE MINE WORKERS OF AMERICA, DIST. 1 at the time the mine closed, he was financial secretary- treasurer of Local 26. From May 29 until August 4, Lew Smith did not work. On August 4, 1969, Lew Smith started to work for Peabody Coal Company at its Allendale mine at Wyoming, Illinois, as a foreman, and has worked there since that date. Lew Smith did not join any union at the Allendale mine and, as a foreman, was not required to join. During the hiatus between his jobs, Lew Smith applied for pension benefits, and on June 20, 1969, he was notified by letter from the cotrustees of the fund that effective June 1, 1969, he would receive payments at the rate of $250 a month, less authorized deductions, until he received the entire amount allocated to him. The final paragraph of the letter read as follows: Before we can make any payment to you we must have a certificate that you are not now employed in the coal industry. If you are employed in the coalyindustry, then such payment cannot be made until after you are no longer so employed. In addition, should you return to the industry anytime in the future while still receiving pension payments, this office must be notified at once. IF YOU DRAW MONEY WHEN YOU ARE NOT ELIGIBLE YOU WILL BE REQUIRED TO REPAY IT TO THE FUND. On or about August 1, 1969, Lew Smith received a pay- ment for the months of June and July. Thereafter, he was notified by the cotrustees that because he had taken em- ployment in the coal industry his benefits were stopped. During the month of June, Lew Smith telephoned cotrus- tee Dan Villa to inquire as to the effect on his pension payment if he took employment with a company engaged in the construction of mining equipment at various mines throughout the country. Villa replied that if he took employ- ment at any coal mine other than one represented by PMW he would lose his pension rights, regardless of the length of his employment. Smith understood that even if he took employment at a PMW mine he would stop drawing his pension. However, he also knew that in that event his pen- sion would continue to accumulate, and he called to de- termine whether he would lose his rights by accepting the employment he described. ' Russell D. Green was employed at the Pioneer Collieries mine from 1952 until May 23, 1969. While there he was a member of PMW. He left the pioneer Collieries mine be- cause he was told the mine was closing down and he found other employment. On May 25, 1969, Green started to work at the Peabody Mecco mine at Victoria, Illinois. On that day he Joined the UMW upon being told that he was required to. Green was still employed at the Mecco mine at the time of the hearing. After the Pioneer Collieries mine closed, Green sent a M ension application to the Fund and received one payment. On November 5, he received a letter from the cotrustees of the Fund which stated as follows: In reviewing the information provided on the employ- ment form which you returned to us under date of October 15, 1969, we note you have been reemployed in the industry since May 24, 1969. In view of this information, you were not entitled to check which was sent you in payment of pension for the month of June 1969, in which case we have no alterna- tive than to request that you refund the Welfare Office in the amount of $250.00. This is in accordance with provisions in the plan which state: "In the event a member returns to the industry he is not entitled to pension payments, so long as he is so employed." 495 In accord with the request in the letter, Green returned the payment he had received and received no further pay- ments thereafter. Walter C. Philbee worked at the Pioneer Collieries mine from 1960 until May 29, 1969, when he left because the mine closed. Thereafter on June 12, 1969, he started to work for the Caterpillar Tractor Company where he remained until November 1, 1969. While there he was a member of the United Auto Workers Union. On November 8, 1969, he started to work at the Peabody Mecco mine where he has since remained. At the Mecco mine he joined UMW. After leaving the Pioneer Collieries mine, Philbee applied for pension benefits from the Fund, and received payments monthly through November 1, 1969. Thereafter, he received a letter from the Fund stating that because he had returned to the coal industry his pension payments were being sus- pended. During the period that he received pension payments, Philbee's dues were deducted from each check. He may have paid local dues through January 1970, but paid no other dues thereafter, no did he talk to any one about them. In the administration of the Fund, separate account cards are kept for each employee for whom allocations have been made. The account cards for each of the claimants here involved, apparently current to the date of the hearing, show additions to each account posted on November 3, 1969. Although these entries were not explained, it appears that they reflect posting of allocations following ,the annual September 1 allocation date provided in the Plan. There is no indication on any of the cards that the allocations have been forfeited, and none of the claimants has been notified that his allocation has been forfeited. C. The May 20 Meeting On May 20, 1969, Respondent's Local 26 held a meeting at the washhouse at the Pioneer Collieries mine. Its presi- dent, George Byron, called the meeting because of the im- pending mine closing and invited officials from Respondent to attend the meeting to explain to employees the walfare and pension benefits available to them. A majority of the mine employees were present including Lew Smith, Russell Green, and Raymond Smith, Jr. Lester Gray and Walter Philbee did not attend the meeting. Also present were Lester Boetta, secretary-treasurer of Respondent, Frank Hoffman, a board member of Respondent, and Don Villa, cotrustee of the Fund. Byron called the meeting to order, explained its purpose, and introduced Villa. Villa explained the benefits available to the employees, and Hoffman handed out dues exonera- tion forms and pension applications. Among other things, Villa explained that those who were not working in the coal industry after the mine closed could apply for pensions and receive them, but that if they took jobs in the coal industry their payments would stop. As Hoffman was passing out pension applications, Ray- mond Smith, Jr., reached for one. Hoffman told him that, as he had taken employment in the coal industry, he was no longer a member of the local and had no business even attending the meeting. Raymond Smith, Jr., then told Lew Smith that he wanted to pay his dues. Either Boetta or Villa told Lew Smith that he could not accept dues from Raymond Smith, Jr., because he had taken a job at another mine in the coal industry over which PMW had no jurisdiction. Another employee asked why Raymond Smith, Jr., could not belong to the Union and draw his pension, pointing out that others took jobs in other industries and belonged to other unions while still 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drawing a pension. Boetta replied that whenever a member took work in the coal industry not under the jurisdiction of PMW he could no longer belong to the Union.6 Raymond Smith asked Lew Smith to sign his pension application and put the local seal on it for him.1 Lew Smith said he would take it home, seal it, and sent it in. Boetta or Villa said that it would not do any gQod, but it would be all right for Lew Smith to sign it, seal it, and sent it in for the record. Either Villa or Boetta wrote Raymond Smith's name on an envelope as one from whom Lew Smith should receive no more dues. After the meeting Lew Smith completed Ray- mond Smith's pension application and mailed it to Respon- dent. D. Respondent's Dues Structure Respondent's dues vary depending upon whether or not the dues payer is actively employed in the coal industry. A member working in the coal industry under a contract with Respondent pays 25 cents a month which is retained by his local, 25 cents which is sent to Respondent, 25 cents which is sent to the International Union, and 2 percent of his gross earnings which is divided between Respondent's general fund and a death fund. Local unions may vote additional assessments as they see fit. A member employed outside the coal industry pays a total of $1.45 a month of which 75 cents is divided evenly among the local, Respondent, and the International, as above, and the remaining 70 cents is in lieu of the 2 percent of gross earnings and divided between Respondent' s gener- al fund and the death fund. A retired member drawing retirement benefits pays 1 percent of his monthly pension or a minimum of $1, which is deducted from his pension and goes to Respondent.' Respondent's death fund is used to pay benefits to a member's family for funeral expenses at time of death. The fund is administered by Respondent and the employees contribute nothing to it. This benefit is separate from death benefits payable under the Plan. Respondent's constitution contains no provision for col- lection of a service fee in order to give benefits to individuals who are not members of the Union. Boetta, Respondent's secretary-treasurer, testified that the constitution prohibits him from accepting dues from a person working at a mine not under contract with PMW. E. Concluding Findings The General Counsel contends that the Welfare and Re- tirement Plan discriminates on the basis of union member- ship and therefore that its maintenance and enforcement violate Section 8(bXIXA) and 8(b)(2) of the Act. In Coal Producers'Association of Illinois, 165 NLRB 337, 338, on the evidence before it, the Board accepted a contention of PMW that dues required to maintain membership in the Union during periods when an employee is not working at a PMW mine are in the nature of a service fee which may be lawfully required. The Board did not reach the further question "whether employees are in fact required, pursuant 6 These findings are based on a composite of the testimony of Raymond Smith, Lew Smith, and Russell Green. Hoffman and Villa did not testify Although Boetta testified that no tender of dues was made to him as financial officer of Respondent, he was not questioned about the May 20 meeting or Raymond Smith's offer to pay dues to Lew Smith. As secretary-treasurer, Smith was to sign and seal the form to indicate that the applicant was a member in good standing. 8 Although not provided for in Respondent 's constitution, it appears that retired members also pay monthly dues to their locals to the plan, to maintain their membership in the Union, or may have their membership forfeited in a manner which would be violative of Section 8(aX3) of the Act," because "apart from references in the plan itself which tend to sug- gest the possibility that such discrimination may occur-the record furnishes no adequate proof to establish that the eligibility status of individuals covered by the plan has been forfeited for any reason other than failure to make periodic pa meats to the Union." In the later cases,9 as in this case, PMW did not contend that dues in the nature of a service fee are required to maintain membership when an employee is not working at a, PMW mine. In Peabody Coal Company, 180 NLRB No. 38, the Board found on the evidence there presented that Respondent had entered into a contractually founded wel- fare and pension plan which discriminates on the basis of union membership in a manner violative of Section 8(bX2) and 8(b)(1)(A) of the Act. I find that the same conclusion is warranted on the evidence before me in this case. In addition to the quoted portions of the Plan which suggest such discrimination, the evidence shows that Re- spondent did not construe the membership requirement of the Plan as merely requiring payment or periodic service fees, but that it construed the Plan as requiring membership in PMW within the meaning of article VI, sec. 5, of its constitution. Thus, at the May 20 membership meeting of Local 26, Raymond Smith, Jr., was told that his offer of dues could not be accepted because he had taken employ- ment at a mine not represented by PMW and could no longer belong to PMW. The rejection of Smith's offer and the explanation for it occurred in the presence of most of the employees of the about-to-be abandoned Pioneer Col- lieries mine. Later, when Lew Smith inquired of Villa as to the consequences of employment with a mine construction company, Villa stated that if Smith took employment at any coal mine other than one represented by PMW, he could lose his pension rights, regardless of the length of his em- ployment. Any notion that the Plan required only payment of a service fee was thoroughly dispelled by Boetta's testi- mony that Respondent's constitution prohibits him from accepting dues from a person working at a mine not under contract with PMW. Thus, as respects the employees of the abandoned Pio- neer Collieries mine, the Plan as administered conditioned their postemployment participation in deferred employ- ment benefits upon their maintenance of membership in PMW which in turn required that they avoid future employ- ment in any mine not represented by PMW on pain of loss of their right to immediate pension benefits. As set forth below in more detail, the loss of benefits under the Plan does not flow from mere employment in the coal industry, with- out regard to union membership, but under the specific terms of the Plan is a direct consequence of loss of member- ship. Moreover, although forfeiture of allocations was not immediate in the case of the employees of the abandoned mine who took employment at non-PMW mines, ultimate 9 Cited in in 1, above 10 Although the evidence leaves it unclear whether it was Villa or Boetta who instructed Lew Smith to reject dues from Raymond Smith, I find that Respondent is responsible for the statements of both. Respondent admits that Boetta is its agent . As for Villa, the evidence shows that he is a cotrustee of the fund, and Respondent, works under the direction of its executive board, and performs all duties required in connection with the administration of the Welfare and Retirement Plan. In addition, Villa attended the May 20 meeting in response to a request by the local for representatives of Respon- dent to attend the May 20 meeting to explain employees' pension rights. As for Lew Smith, as financial secretary -treasurer of Local 26, he received all payments of dues not deducted from pensions and was clearly an appropriate person to whom to make a tender of dues PROGRESSIVE MINE WORKERS OF AMERICA, DIST. I forfeiture was threatened by operation of the Plan which requires that once a member has taken employment at a non-PMW mine he must regain employment at a PMW mine by the third allocation date following abandonment of the mine. This requirement not only is ultimately coercive in its future requirement, but had immediate impact since it necessarily operated to discourage an employee from tak- ing any employment at a non-PMW mine for fear that by the third allocation date he would not be able to regain employment at a PMW mine . I I Accordingly, for the reasons set forth in Peabody Coal Company, supra, I find that main- tenance and enforcement by Respondent of the provisions of the Plan requiring membership in Respondent as a condi- tion of eligibility for benefits under the Plan violated Sec- tion 8(bxl)(A) and 8(bX2) of the Act. The General Counsel also contends that the rejection of Raymond Smith, Jr.'s offer of dues on May 20, 1970, and the statements made by Respondent's agents in conjunciton with that offer violated Section 8(b)(l)(A) of the Act. These contentions are supported by the decision of the Board in Local Union No. 167, 173 NLRB No. 189, and I find that Respondent violated Section 8(b)(l?(A) by its rejection of Raymond Smith , Jr.'s offer of dues z and the statements at the May 20 meeting which threatened a loss of pension for those who lost membership in PMW. Although the complaints also allege that Respondent fur- ther violated the Act by causing forfeiture of the allocations of the five claimants named in the complaint , the evidence shows that none of their allocations have yet been forfeited by virtue of the deferral provisions relating to employees of abandoned mines . 13 The General Counsel m his brief does not press this contention, but urges instead that the deferral provision of the Plan threatens future forfeiture in violation of Section 8(b)(1)(A). Although I agree that such a threat is posed, it is no more than a consequence of the maintenance and enforcement of the Plan, and no separate finding of a violation is warranted based on the threat of forfeiture flow- ing directly from the Plan. The General Counsel contends finally that the refusal to pay immediate pension benefits to Raymond Smith, Jr., and the suspension of payments to the other alleged discrimina- tees also violated Section 8(b)(2) and 8(b)(1)(A) of the Act. This contention is based on Respondent's failure to reply to Raymond Smith's pension application, its rescission of the grant of Russell Green's pension upon learning of his new 11 If he were to take employment outside the coal industry, or remain unemployed, there would be no similar requirement that he obtain employ- ment at a PMW mine by the third allocation date following abandonment of the mine 12 As in that case, this finding does not mean that Respondent is not free to establish criteria for the acquisition or retention of membership in the sense protected by the proviso to Sec 8(b)(1)(A). But it does mean that having established a condition for the retention of membership which bars persons who take work at non -PMW mores from retaining PMW member- ship, Respondent may not reject an offer of a service fee and deprive employ- ees of rights to deferred compensation arising out of their previous employment because of their failure to meet this condition. 1 On the surface it might appear that the forfeiture of Lester Gray's allocation was not within the scope of the deferral provision of the Plan relating to employees of abandoned mines because he was discharged from the Pioneer Collieries mine before its abandonment . However, in their briefs the parties treated all five claimants as subject to that provision In my request for supplemental briefs, I asked the parties for further elaboration of their positions with respect to Gray. The General Counsel in his supplemen- tal brief reiterated his position that Gray was to be considered in the same position as the other claimants, and Respondent filed no supplemental brief Accordingly, I have found that forfeiture as to all five claimants was deferred until the third allocation date following abandonment of the mine and has not yet occurred 497 employment, and its suspension of pension payments to Lew Smith, Walter Philbee, and Lester Gray upon notifica- tion of their new employment. Respondent contends that disqualification for immediate benefits under the Plan ap- plies to all persons taking employment in the coal industry and was not based on the loss of union membership of the five claimants. Respondent contends further that these al- leged violations are barred by Section 10(b) of the Act. The Special Allocation Plan provides for immediate eligi- bility for pension payments from allocated funds to any member who has worked a year or more at an abandoned mine, regardless of other eligibility requirements. In the event a member takes employment at another contributing mine, his payments are suspended, but his allocation is pre- served and is available to him at the time he becomes eligi- ble for a pension at a later date. If he returns to the coal industry at a mine not represented by PMW, his eligibility is governed by part I, section 11, of the Special Allocation Plan and article VI, section 5, of Respondent's constitution. Section 11 requires continuous membership in a local of Respondent to be eligible under, the Plan. Although the provision therein for immediate forfeiture of allocated funds upon loss of eligibility is superseded by section 45 of Plan 7, which defers forfeiture of allocations for employees of abandoned mines who are forced to give up membership in the Union, nothing in section 45 postpones loss of mem- bership 14 or relates to the eligibility of such employees to receive benefits between the date of loss of membership and the third allocation date. Thus section 45,postpones possible loss of future benefits but does affect rights to immediate benefits. Nothing has been cited to me other than section 11 of the Special Allocation Plan which explains the suspen- sion or refusal of immediate benefits to employees of aban- doned mores who take work at noncontributing mines for which they would otherwise be eligible under section 8 of the General Provisions of the Special Allocation Plan.'5 14 In Peabody Coal Company, 180 NLRB No. 38, the Board described sec. 45 as "postponing the loss of membership until the third allocation date after change in employment, during which grace period an employee may return to a mine represented by the PMW with no loss of membership or benefits." However, close examination of sec. 45 makes it clear that forfeiture of alloca- tions and not loss of membership is postponed until the third allocation date. This difference is not material to the reasoning of the Board in the Peabody case but is significant with respect to the question of eligibility for immediate payment s At the hearing the parties agreed not to put all of Plan 7 in evidence but to introduce limited excerpts at that time with the understanding that either party could submit additional portions of Plan 7 in conjunction with their briefs or at later stages in this proceeding . After receiving the briefs of the parties, by letter of July 14, 1970, 1 requested the parties to submit supple- mental briefs and additional portions of Plan 7, if any, relating to this issue. In this respect I stated in my letter, 2 With respect to the contention of the General Counsel that the denial of immediate pension benefits to the alleged discnminatees vio- lated the Act, I note the statement in Respondent's brief that in the event an employee of an abandoned mine returns to the coal industry, he is not eligible for further payment while so employed . I note further that in General Counsel's Exhibit 12 a provision of the Plan is quoted to this effect and that in Coal Producers' Assoc,ation of Illinois, 165 NLRB 337, 340-341, a portion of Plan 7 is quoted which is similar in effect. The quoted language does not appear in the Special Allocation Plan or the portion of Plan 7 received in evidence , insofar as I can determine. I therefore ask that in your supplemental briefs you point out to me where such provisions are found, submit such portions of Plan 7 as contain them or are necessary to interpret them in context, and make such further comment as you deem necessary with respect to the General Counsel's contention set forth above in the light of the additional sec- tions of the Plan, if any , which are cited In response to my request, the General Counsel filed a supplemental brief in which he stated that he knew of no provision in the Plan expressly stating that "in the event an employee of an abandoned mine returns to the coal Connrtued 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Respondent's correspondence with Gray, Lew Smith, and Green refers to reemployment in the coal indus- try as the basis for suspension of payments, I find ment in the General Counsel's contention in view of the specific provisions of Plan 7, the Special Allocation Plan, and Respondent's constitution which are before me and on which the refusals of immediate payment are necessarily based, Although the effect of the provisions of the Plan may be to deny immediate payments to all employees who return to the cpal industry, l the stated basis for the denial of pay- ments to those employed at non-PMW mines is not their reemployment in the coal industry, but their loss of PMW membership. Thus, under section 8 of the Plan, these em- ployees became eligible for pension payments upon aban- donment of the mine, unless they lost eligibility pursuant to section II which requires them to remain members in good standing as a condition of eligibility under the Plan. Under Respondent's constitution when they took employment in UMW mines, they lost their membership in PMW and therefore lost their eligibility to receive further payments. Under the Plan their payments ceased specifically because they lost membership in PMW pursuant to its constitution. While the Board's decision in the Coal Producers'Associa- tion case,. supra, left open a possible construction of the Plan as requirn only a tender of service fees to preserve eligibili- ty, Ihave ound above that as maintained and enforced by Respondent, the Plan did not present this possibility. More- over, it is clear with respect to the alleged individual discri- minatees in this case that their benefits were not withheld or suspended for failure to tender service fees. Thus, on May 20, when Raymond Smith sought to pay dues, he was told by Villa or Boetta, in the presence of most of the other employees of the mine, that his dues would not be accepted because he had lost his membership in Respondent by ac- cepting employment in a non-PMW mine.' At least some of the other claimants were current in their dues payments when their pension payments were stopped. Respondent never explained to any of the employees of the Pioneer Collieries mine that they could preserve their eligibility to paying a service fee; 18 Respondent's constitution does not provide for service fees ; and it is clear from Boetta's testi- mony that Respondent would not accept payments from anyone working in a non-PMW mine. In these circum- stances, I find that it was loss of membership pursuant to Respondent's constitution and not a failure to tender serv- ice fees which caused Respondent to withhold or suspend pension payments to the two Smiths, Gray, Green, and Philbee. There remains for consideration whether a finding of a violation based upon the denials of pension benefits to any of the five employees is barred by Section 10(b). The charge as to Raymond Smith, Jr., was Tiled on November 12 and was served on Respondent on November 13, 1969. Smith industry, he is not eligible for further payment while so employed " He submitted no further portions of the Plan and referred again only to those already cited Respondent made no further submission . In these circum- stances, I conclude that there are no other relevant portions of Plan 7. 16 I assume in this regard that all PMW represented mines are contributing mines. If not, then those employed at non-contributing PMW mines would be eligible to receive payments while employed in the coal industry The record is silent in this regard. 17 Lew Smith and Russell Green were present and heard this statement Philbee and Gray were not at the meeting. is See Philadelphia Sheraton Corporation, 136 NLRB 888, 896, enfd. 320 F.2d 254 (C.A. 3); N.L.R.B. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, 307 F.2d 679 (C.A D.C.), cert. denied 371 U S 936; Conductron Corporation, 183 NLRB No. 54 testified that his last day of work at the Pioneer Collieries mine was May 12, 1969, that he started work at the Mecco mine on the same day, and that he joined UMW on that day. Smith did not make application for accelerated pension benefits until sometime after May 20 when Lew Smith mailed his application to Respondent. On May 20 he sought to pay dues to Lew Smith but was told his dues would not be accepted. The charge as to the remaining four employees was filed on January 9, 1970. As Lew Smith and Walter Philbee went to work in non-PMW mines on August 4, 1969, and Novem- ber 8, 1969, respectively, the charge is clearly timely as to them. Russell Green started work at the Mecco mine on May 25, 1969. However, this fact did not become known to Respondent until October 15, 1969, when Green notified Respondent of that employment. Before that Respondent had processed Green's pension application and had sent him one payment for the month of June from which a deduction for dues had been made. After learning of Green's employment on November 5, 1969, Respondent notified him that he was not eligible for a pension and asked him to refund the payment he had received. As for Lester Gray, the evidence shows that Gray took employment at the Mecco mine in June 1969, notified Respondent of his new employment in June, and was notified of the suspension of his pension payments by letter of July 17, 1969. In the case of forfeiture of allocations, the Board has held that except where a tender of fees is accepted and then rejected, the unfair labor practice occurs when forfeiture becomes automatic under the terms of the Plan.19 However, unlike forfeiture, which permanently ends all future claims, the denial of pension payments constituted a continuing violation of the Act 20 Thus, although the Plan provides for immediate loss of eligibility upon taking employment in a non-PMW mine, the Act was separately violated when Re- spondent failed to respond to Raymond Smith, Jr.'s applica- tion and terminated the pension payments of the other claimants, all of which occurred within 6 months of the filing of the charges. Accordingly, as the pension benefits were deferred benefits of employment provided pursuant to the agreement between the Association and Respondent, I find that Respondent violated Section 8(bxl)(A) and 8(b)(2) by refusing to pa; pension benefits to the two Smiths, GraGreen, and hilbee after they took employ- ment in non'-PM W mines. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the employer's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent, through its agents, refused to accept dues tendered by Raymond Smith, Jr., and 19 Peabody Coal Company, supra 20 Swift Service Stores, Inc, etc, 169 NLRB No. 33; Jim O'Donnell, Inc., 123 NLRB 1639, 1647 PROGRESSIVE MINE WORKERS OF AMERICA, DIST. 1 refused to make pension payments to Raymond Smith, Jr., Lew Smith, Lester Gray, Russell Green, and Walter Philbee because they lost their membership in PMW by accepting employment in non-PMW mines, I will recommend that Respondent be ordered to accept the rejected dues of Ray- mond Smith, Jr., as service fees if again tendered, and, make the five named employees whole by payment to them of the amounts they would otherwise have received as pension payments following their acceptance of employment at non- PMW mines, less any service fees uniformly required which would have been payable to them,21 to which shall be added interest at the rate of 6 percent per annum 22 As the unfair labor practices found herein affect the rights of all former employees of Sherwood-Templeton Coal Company, Inc., at the Pioneer Collieries mine who had allocations posted to their fund accounts at the time the Pioneer Collieries mine shut down, and as the posting of a notice at Respondent's offices and meeting halls may not be adequate as a means of communicating its contents to them, I shall recommend that Respondent also be ordered to mail copies of the notice to all such persons in addition to posting the notice. Upon the basis of the above findings of fact and the entire record in this case, I make the following: 21 Peabody Coal Company, 180 NLRB No 38 22 Isis Plumbing & Heating Co, 138 NLRB 716 CONCLUSIONS OF LAW 499 1. Progressive Mine Workers of America, District No. 1, is a labor organization within the meaning of Section 2(5) of the Act. 2. Sherwood-Templeton Coal Company, Inc., is an em- lo er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By maintaining and enforcing provisions of the Plan for administering the Welfare and Pension Fund which ren- der miners ineligible for participation in employment bene- fits upon loss of union membership dues to acceptance of employment in coal mines not represented by PMW, by refusing to accept a tender of dues as service fees for contin- ued participation in the Plan's benefits, by threatening em- ployees with loss of pension benefits upon losing union membership because of acceptance of employment in coal mines not represented by PMW, and by refusing to make pension payments to employees who lost union membership because of acceptance of employment at mines not repre- sented by PMW, Respondent has engaged and is en$agmg in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and 8(b)(2) and Section 2(6) and (7) of the Act. [Recommended order omitted from publication.]