United Mine Workers

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union, United Mine Workers of Ameri- ca and Michael Trbovich and United Mine Work- ers of America Welfare and Retirement Fund of 1950; Anthracite Health and Welfare Fund, Parties in Interest, and Association of Disabled Miners and Widows. Case 5-CB-1013 March 26, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On June 20, 1972, Administrative Law Judge' Louis Libbin issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party2 filed exceptions and supporting briefs; the Respondent filed cross-exceptions and a supporting brief, and a brief in support of the Administrative Law Judge's Decision and in reply to the General Counsel's and Charging Party's briefs; and the Charging Party filed an answering memoran- dum. The Board has considered the record and the attached decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Our dissenting colleague, agreeing that the Board has no jurisdiction over retirees under Section 2(3) in view of the Supreme Court's decision in Pittsburgh Plate Glass,3 would find that Respondent's alleged requirement that retired employees or pensioners be members in good standing in order to be eligible for pension benefits violates Section 8(b)(1)(A) and (2) because of its impact on active miners. He argues that because of the alleged membership requirement active employees know that when they reach retire- ment age they can be eligible for pension benefits only if they have maintained their union membership and that this kind of conditioning of a future benefit upon currently maintained union membership is clearly a violation of Section 8(b)(1)(A) and (2). The Administrative Law Judge, after noting that I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 The Charging Party's request for oral argument is hereby denied, as the record , including the briefs , adequately presents the issues and positions of the parties 3 Pittsburgh Plate Glass Company, Chemical Division v N L R B, 404 U S 157 d Both the Bituminous and Anthracite Funds are divided into two separate funds or accounts, (I) a retirement fund, and (2) a fund to provide other benefits, primarily hospital and medical care benefits Working or active miners are eligible for hospital and medical benefits while regularly employed in the coal industry as employees of a signatory employer to the contract between the Respondent and the coal operators Eligibility continues while miners are so employed and for I year thereafter while employees in the coal industry have no vested pension interest, rejected the contention with respect to the alleged impact of Respondent's conduct on active miners primarily because employees in the coal industry are required to be members of Respondent as a condition of employment pursuant to a valid union-security clause. Under these circum- stances, he concluded that the impact upon active miners is uncertain, speculative, and problematical because there is no way of assessing the significance of Respondent's alleged conduct in relationship to the actions of active members in maintaining their membership in Respondent. We agree. In the first place, active miners are required to maintain their membership in Respondent because of the concededly valid union-security clause. Given such a clause, to ascribe other reasons for active miners maintaining their membership is no more than speculation. Moreover, there are other speculative reasons why active miners may decide to maintain their member- ship in Respondent. Thus, they may retain eligibility for certain other Fund benefits. To illustrate, the Charging Party concedes that, "Certain Fund bene- fits . . . are properly related to union membership . . . eligibility for hospital care through the Fund during the period of active employment is necessarily dependent upon union membership because of the union-security clause in the contract."4 Do employed active miners retain their union membership because of the more immediate need of health and medical services for themselves and their families? Any answer we could make would be no more than speculation. The Supreme Court in Pittsburgh Plate Glass v. N. L. R. B., rejected a somewhat similar contention, though admittedly in a different 8(a)(5) context. The Court, in concluding that the impact on active employees was speculative and insubstantial, stated, "we find nowhere a particle of evidence showing . . . the concern of active workers for their own future retirement benefits." If active miners are concerned about their pension eligibility, and pre- sumably they are, that concern is not established on a record that deals with retirees.5 In conclusion we unemployed Miners receiving workmen's compensation for a mine injury or occupational disease sustained while employed under the contract may continue to be eligible for hospital and medical benefits while unemployed for up to 4 years from the date of last employment Pensioners are eligible provided they are not employed in an occupation outside the coal industry 5 During the period 1960 to 1964 there were 2.134 appeals for reinstatement to membership Between 1964 and 1968 there were 9,979 appeals for reinstatement to membership The explanation given for the great number of appeals for reinstatement between 1964 and 1968 was that the pension plan lowered its eligibility age requirement on February I, 1965, to 55 years , thereby rendering eligible many former members who had let their membership lapse upon retirement because they could not qualify for a pension under the previous age requirement (age 60) These figures, set forth in the Charging Party 's brief for a different purpose (though all pre- 202 NLRB No. 79 UNITED MINE WORKERS 735 are unable to assess the impact of Respondent's alleged eligibility requirement on active miners because, as the Administrative Law Judge found, to do so would amount to outright speculation.6 The General Counsel, in advancing his argument concerning the impact of Respondent's alleged pension requirement, analogized to Board decisions holding that the discharge of supervisors for refusing to assist the employer in the commission of unfair labor practices infringes on the rights of employees in violation of the Act. The Administrative Law Judge found such decisions inapposite. We agree. For if we were to find the violation as urged by our colleague, what remedy would we provide? A cease-and-desist order and remedy would, in fact, not go to the purported impact of Respondent's conduct on the active miners who are required to maintain their union membership under a valid union-security clause. Rather the cease-and-desist provisions would of necessity refer directly to the requirement alleged- ly imposed upon retirees, over whom the Supreme Court has denied us jurisdiction. We would, there- fore, be attempting to do indirectly what we have been prohibited from doing directly. It is in this respect that we believe General Counsel's analogy to the remedying of discharges of supervisors fails. In those cases, the Board ordered supervisors reinstated only because of the impact of Respondent's conduct on employees; the reinstatement of the supervisor was incidental to the protection of the employees. Here the remedy with respect to retirees would not be an incident of our attempting to protect the active miners from the alleged coercion resulting from Respondent's allegedly unlawful pension require- ment. Rather the remedy would directly affect thousands of retirees over whom we have no jurisdiction, while the effect on the active miners would be at best secondary and incidental. In accordance with the Administrative Law Judge's findings we shall dismiss the case in its entirety. ORDER Pursuant to Section 10(c) of the National Labor 10(b)), if nothing else tend to show that the alleged impact of Respondent's alleged requirement upon active miners or miners about to retire was not taken as seriously as our colleague would have us infer In other words, a substantial number of miners were apparently not concerned that they would lose pension eligibility if they let their membership lapse 6 Our colleague's reliance on Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, CIO, 109 NLRB 326, is, in our opinion , misplaced That case involved the discharge of three employees upon the demand of the union which claimed they were not members in good standing under a valid union-secunty clause although the three employees had been and wanted to continue as union members but opposed signing a new checkoff authorization, which gave the union the right to make extra assessments Thus, a clear violation of Sec 8(b)(2) was established As a concomitant of his unlawful discharge and removal from good standing in the union, one of the three employees was denied hospital benefits by the union security fund It was with respect to this incident that Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed. CHAIRMAN MILLER, dissenting: The complaint, which my colleagues summarily dismiss without ever reaching the merits, alleges, inter aba, that Respondent and signatory coal operators to the anthracite collective-bargaining agreement have maintained in effect and enforced provisions of the Anthracite Fund "which provisions require membership in good standing in Respondent and/or one of its affiliated Locals in order for applicants to become eligible for, and to continue to participate in, pensions and/or other benefits .. from a jointly administered pension fund. The dismissal is grounded on the Supreme Court decision in Pittsburgh Plate Glass Company v. N.L.R.B., 404 U.S. 157, wherein the Court held that -retired employees are not "employees" within the meaning of Section 2(3) of the Act. In my view, the decision misses the mark. As I understand the allegations of the complaint, Respon- dent has participated in maintaining and enforcing terms of an agreement covering active employees in such a way that those active employees know that, when they reach retirement age, they can be eligible for pensions only if they have, over their years of active employment and continuing up to and including the date of their application for a pension, maintained their membership in Respondent Union. If these allegations be taken as true, it is necessarily obvious to all active employees that there will be disparate treatment with respect to pension eligibili- ty, based solely on the employee's membership or nonmembership in the Union during all of his employment years. That kind of conditioning of a future benefit upon currently maintained union membership seems to me so clearly a violation of our Act that I am at a loss to understand the dismissal herein.? To me it seems wholly irrelevant even to examine the language quoted by our colleague was employed by the Administrative Law Judge The differences in the cases are marked Here the alleged unlawful requirements for pension eligibility are not included in the contract between the Respondent and the mine operators There the security fund provided only hospital, medical, and death benefits it did not provide pension benefits for retirees Thus, in that case, the impact of requiring union membership for the receipt of an immediate benefit to an employee was clear and was demonstrated on the record Here we are not only concerned with a possible future benefit but must speculate as to whether the Respondent's alleged requirement for eligibility, which applies only to retirees, has an impact on active employees ' This Board affirmed the decision of Trial Examiner (now Administra- tive Law Judge) Arthur Leff, who said, in Local 140, Furniture Workers, 109 NLRB 326, 342 By making contributions to a welfare fund in which employee benefits (Continued) 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the question of whether, at the time of payment of the future benefit, present employees will be "employees." If an agreement were to provide, for example, that 2 weeks after termination of employ- ment by the employer, former employees who had maintained their union membership up to and including termination would be paid $10,000 as a severance pay benefit, but those who had remained nonmembers would receive nothing, could there be any doubt that the contracting parties were guilty of illegal discriminatory conduct under our Act? Would it be of any significance whatever that at the time of actual payment, the beneficiaries (or nonbeneficiar- ies) were no longer "employees"? Of course not. The order of dismissal here is thus wrongly premised, is in error, and I therefore dissent. are in fact restricted to those employees only who are union members, though the employer's contributions are made without reference to union membership or nonmembership of unit employees , an employer in effect provides more favorable wages and working conditions to those who are union members than to those who are not Disparate treatment on that basis is discrimination forbidden by the Act Gaynor News Company, Inc, 93 NLRB 299, enfd 197 F 2d 719 (C A 2) The law is by now clearly established that a labor organization is responsible for illegal discrimination that derives from an agreement to which it is a party, and that it violates Section 8(b)(2) as well as Section 8(b)(I)(A) of the Act when it executes , maintains, or enforces a collective-bargaining agreement containing provisions which have the effect of imposing discriminatory conditions of employment TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LiBBIN, Trial Examiner: Upon charges filed on April 13, 1970, and February 24, 1971, by Michael Trbovich, an individual, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 5 (Baltimore, Maryland), issued a complaint, dated April 6, 1971, against International Union, United Mine Workers of America, herein called the Respondent or UMW. With respect to the unfair labor practices, the complaint as amended at the trial alleges, and Respondent's answer as amended denies, that Respon- dent violated Section 8(b)(1)(A) and (2) of the Act. This case was tried before me at various times during the period from August 16, 1971, to April 7, 1972, in Washington, D.C., Wilkes-Bane, and Washington, Penn- sylvania, and Charleston, West Virginia. All parties appeared at the trial and were given full opportunity to participate therem . i On December 27, 1971, I received from Respondent a motion to dismiss or for summary judgment in view of the then recent Supreme Court decision holding that retirees or pensioners were not employees within the meaning of the Act in a refusal-to- bargain context.2 On January 11, 1972, the Charging Party submitted a brief in opposition to said motion. All parties were afforded an opportunity to argue orally on said motion at the session held on January 11, 1972, in Washington, D.C. At the conclusion of the argument, I i On the first day of the trial , I granted the motion of the Association of Disabled Miners and Widows to intervene to the extent of its interest deferred ruling on the motion and ruled that, under all the circumstances, it would be more expeditious and efficient, as well as less costly, for the parties to proceed with the remainder of the case and get all the evidence "locked" into the record and that I would rule on the motion in my decision . This is the procedure which was followed. On May 8, 1972, the General Counsel , the Respondent, and the Charging Party filed extensive, detailed, and comprehensive briefs on all issues bearing on the merits as well as on Respondent's motion to dismiss. On May 22, 1972, pursuant to leave granted in this respect, the Respondent and the Charging Party also filed reply briefs. Respondent's motion to dismiss the complaint, upon which I reserved ruling and which is renewed in its brief, is hereby granted for the reasons hereinafter stated. FINDINGS AND CONCLUSIONS 1. JURISDICTION The bituminous coal operators who are signatory to the National Bituminous Coal Wage Agreement of 1950, as amended, and the anthracite coal operators who are signatory to the Wage Agreement of 1946, as amended, are engaged in the production , mining, and sale of coal. In the course and conduct of their business operations , the coal operators produce, mine, and sell a large volume of coal (in excess of 400 million tons in 1968), a substantial amount of which is sold , delivered, and transported to and through the various States of the United States. Upon the above admitted facts, I find, as Respondent's answer also admits, that said coal operators are, and at all times material herein have been , engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. H. THE RESPONDENT The complaint alleges, the answer admits, the record shows, and I find, that International Union , United Mine Workers of America, the Respondent herein sometimes called UMW, is a labor organization within the meaning of Section 2(3) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Allegations and the Issues Respondent admits, as the complaint alleges, that at all times material herein Respondent and/or its affiliated district and locals have been recognized as the collective- bargaining representative of employees employed at the mines of operators who are signatory to the National Bituminous Coal Wage Agreement of 1950, as amended, and the Anthracite Wage Agreement of 1946 , as amended. Respondent also admits, as the complaint further alleges, that for many years Respondent has been party to separate collective-bargaining agreements with anthracite and bituminous coal operators , which agreements provide for health and welfare funds respectively designated as Anthracite Health and Welfare Fund , herein called the Anthracite Fund, and United Mine Workers of America 2 N L R B v Pittsburgh Plate Glass Company, 404 U S 157 UNITED MINE WORKERS 737 Welfare and Retirement Fund, herein called the Bitumi- nous Fund. The Respondent also admits, as the complaint still further alleges, that signatory coal operators to the respective agreements are contractually obligated to make payments into the funds at the rate of 70 cents for each ton of coal produced in the case of the Anthracite Fund and at the rate of 40 cents for each ton of coal produced in the case of the Bituminous Fund. The complaint also alleges that each fund is managed and administered by three trustees, one appointed as a representative of Respondent, another as a representative of the signatory coal operators, and the third as a neutral trustee. Respondent admits that the funds are managed and administered by three trustees pursuant to Section 302(2)(c) of the Act. Finally, the complaint alleges, and Respondent's answer denies, (I) that signatory coal operators to the anthracite wage agreement and the Respondent have maintained in effect and enforced provisions of the Anthracite Fund, "which provisions require membership in good standing in Respondent and/or one of its affiliated Locals in order for applicants to become eligible for, and to continue to participate in, pensions and/or other benefits" from the Anthracite Fund; (2) that signatory coal operators to the bituminous wage agreement and the Respondent "have, pursuant to an understanding and/or arrangement, re- quired applicants to become and or remain members in good standing in Respondent in order to receive and to continue to receive retirement benefits" from the Bitumi- nous Fund; and (3) that by the foregoing conduct, in conjunction with the other allegations hereinabove stated, Respondent has restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) and has caused or attempt- ed to cause "an employer to discriminate against his employees" in violation of Section 8(b)(2) of the Act. The principal issues litigated in this proceeding are (1) whether retirees and/or pensioners are employees within the meaning even if they are not, jurisdiction should be asserted because of the alleged impact on working miners, (2) the factual issue of whether the of the Act in the context of Section 8(b)(I)(A) and (2), and whether, conduct alleged in the complaint did in fact occur; (3) the agency issue of whether Respondent is liable for the alleged conduct if it did in fact occur; (4) whether the payments which pensioners were required to make were in the nature of legitimate and permissible service fees for the services and benefits rendered by Respondent; and (5) whether Respon- dent's conduct, if it did in fact occur, violated Section 8(b)(1)(A) and (2) of the Act. B. Respondent's Motion To Dismiss The instant case involves only persons who are retirees or pensioners and the complaint is based on the premise that such persons are employees. Thus, the General Counsel stated during the course of opening statements on the first day of the trial that "underlying our whole basis here is the fact . . . that retired individuals are employees" within the meaning of the Act. Respondent's motion to dismiss therefore raises the threshold issue of whether retirees and/or pensioners3 are employees within the meaning of Section 2(3) of the Act and whether the complaint should be dismissed without reaching the issues on the merits. Section 2(3) of the Act provides: The term "employee" shall include any employee and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment .. . . Respondent contends that the decision of the Supreme Court in the Pittsburgh Plate Glass4 case is controlling and dispositive of the issue in the instant case. The issue presented to the Supreme Court in the aforementioned case was whether, as the Board found, the employer had violated Section 8(a)(5) of the Act by refusing to bargain about changes in retirees' benefits. The Court held that there was no violation because retirees are not employees within the meaning of Section 2(3) of the Act and the statutory bargaining obligation extends only to the employment terms and conditions of the employer's employees. In reaching the conclusion that the retirees were not employees within the meaning of Section 2(3) of the Act, the Court emphasized (1) the overall purpose of the Act to prevent or minimize "the disruption to commerce that arises from interference with the organiza- tion and collective-bargaining rights of `workers'-not those who have retired from the work force" and (2) the legislative history of Section 2(3) which itself "indicates that the term `employee' is not to be stretched beyond its plain meaning embracing only those who work for another for hire" (404 U.S. at p. 166). The Court concluded that the "ordinary meaning of `employee' does not include retired workers; retired employees have ceased to work for another for hire" (at p. 168) and that "it would utterly destroy the function of language to read them as embracing those whose work has ceased with no exception of return" (at p. 172). The General Counsel and the Charging Party take the position that the term "employee" should be construed to include retirees and pensioners within the context of Section 8(b)(1)(A) and (2) of the Act and assert that such a construction is not foreclosed by Pittsburgh Plate Glass because the Supreme Court limited its holding in that case to a context where only Section 8(a)(5) was involved. Contending that there is no anomaly in holding the term "employee" to have different meanings under different sections of the Act, the Charging Party points to the fact that the Supreme Court in the same decision affirmed earlier holdings of circuit courts of appeals construing the word "employee" as used in the exemption to Section 302(e)(5) of the Act to include retirees (at p. 169).5 3 These terms are hereinafter used interchangeably representative of any of his employees Sec 302(c)(5) provides an exemption 4 N L R B v Pittsburgh Plate Glass Company, 404 U S 157 for payments to an employee trust fund established "for the sole and 5 Sec 302 prohibits, inter also, any payment by an employer to any exclusive benefit of the employees of such employer" and administered by (Continued) 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Supreme Court at the same time also pointed out that such cases are "not at all in point" because that conclusion "was compelled by the fact that the contrary reading of the statute would have made illegal contrib- utions to pension plans, which the statute expressly contemplates in subsections (A) and (C)" of Section 302(c)(5) (at pp. 169-170 and In. 10). The Charging Party also argues that a holding that the term "employee" does not include pensioners will nullify the proscriptions in Section 302(c)(5) against payments by employers to representatives of their employees and thereby allow employers to do indirectly that which is forbidden directly. I am not impressed by this argument. I find that such dire predictions are not the natural consequences of the premise upon which they are bottomed by the Charging Party and at best are highly remote and speculative. The principal argument advanced by the General Counsel and the Charging Party in support of their position rests in part on some of the language contained in the definition of the term "employee," in part on the fact that some of the retirees and pensioners in the instant case are available for, and have obtained, employment outside the coal industry, and in part on the reference in the Supreme Court's decision to persons who are members of the active work force. It is true that there are retirees and pensioners in the coal industry who are in need of supplementing their income, that for that reason there is a small percentage of them who are actually employed elsewhere outside the industry, and that others may be available but unable to obtain such employment. The General Counsel and the Charging Party point to the language in Section 2(3) which states that "the term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly stated otherwise ...." They then point to the statement of the Supreme Court in the Pittsburgh Plate Glass decision that "people who, unlike the pension- ers here, were members of the active work force available for hire and at least in that sense could be identified as `employees' " (at p. 168).6 From all this they conclude that at least those retirees and pensioners who work, or are available for work, outside the coal industry have retained their status as "employees" under the Act vis-a-vis the UMW in this case. I find no merit in these arguments. In the first place, as Respondent points out, the legislative history of the Act shows that the above-quoted language in Section 2(3) (about "not being limited to the employees of a particular employer") was designed to deal with a situation totally unrelated to the one in the instant case, as is readily apparent from the quotation in the margin.? As for the above-mentioned statement of the exclusive benefit of the employees of such employer" and administered by equal numbers of representatives of the employer and employees 6 This statement was made in rejecting, as "wide of the mark," decisions, relied on by the Board, which held that the term "employee" covered applicants for employment and registrants at hiring halls who have never been hired (tbid ) 7 See Senate Report No 573 on S 1958, Legislative History of the National Labor Relations Act 1935, Vol 11, which states at p 2305 The term "employee" is not limited to the employees of a particular employer The reasons for this are as follows Under modern conditions employees at times organize along craft or industrial lines and form labor organizations that extend beyond the limits of a single- Supreme Court, seized upon by the General Counsel and the Charging Party, it can only be meaningful in its application to Section 8(b)(1)(A) and (2) in the instant case if, as Respondent also points out, it is construed to refer to "members of the active work force" in the industry in which the employer or labor organization functioned, in this case the coal industry and the UMW. As they admit that "those pensioners who have retired, and are no longer in the active work force, are not employees within the coverage of the Act," the position urged by the General Counsel and the Charging Party would create the anomaly of holding the term "employee" to have different meanings (depending on the economic position of the pensioner) under the very same section of the Act. Finally, unlike the General Counsel and the Charging Party, I do not regard President Boyle's 1971 memorandum, outlining the deci- sion of Respondent's executive board concerning the amount of dues required of "pensioned members who are working outside the mining industry," as an admission by Respondent that such pensioners are employees within the meaning of Section 2(3) of the Act. Additionally, the General Counsel and the Charging Party contend that even if pensioners are not employees within the meaning of the Act, jurisdiction should still be asserted in the instant case, because, they argue, Respon- dent's alleged unlawful requirements for obtaining and receiving pension benefits infringe upon the rights of presently active working miners in the coal industry in violation of Section 8(b)(1)(A) of the Act. Such active miners would retain their good-standing membership in Respondent, the argument goes, because of these alleged well-known requirements so that Respondent's alleged conduct in this respect would restrain and coerce the active miners in the exercise of their right to refrain from such activity. The General Counsel in his brief analogizes to the decisions, holding that the discharge of a supervisor for refusing to assist the employer in the commission of unfair labor practices infringes upon the rights of the employees in violation of Section 8(a)(1) of the Act. I find the aforementioned decisions to be completely inapposite to the situation in the instant case. The employees in the coal industry have no vested pension rights. They are required to be members in good standing in Respondent as a condition of employment pursuant to a valid union-security clause Under all the circumstances, there is no way of assessing the significance of Respon- dent's alleged conduct in relationship to the actions of the active miners in maintaining their membership in Respon- dent. At best, such impact is uncertain, speculative, and problematical. I therefore find no merit in the foregoing arguments. employer unit These organizations at times make agreements or bargain collectively with employers, or with an association of employers. Through such business dealings, employees are at times brought into an economic relationship with employers who are not their employers in the course of this relationship, controversies involving unfair labor practices may arise If this bill did not permit the Government to exercise complete jurisdiction over such controversies (arising from unfair labor practices), the Government would be rendered partially powerless, and could not act to promote peace in those very wide-spread controversies where the establishment of peace is most essential to the public welfare UNITED MINE WORKERS I conclude and find that the Supreme Court's decision in Pittsburgh Plate Glass is controlling in this case and that the retirees and pensioners herein involved are not employees within the meaning of Section 2(3) of the Act, even in the context of Section 8(b)(1)(A) and (2). In view of all the foregoing, I hereby grant Respondent's motion to dismiss the instant complaint, without passing on the merits of the allegations contained therein. C. Recommendation for Decision on Merits Without Remand, Credibility Resolutions In the event that the Board disagrees with my findings and conclusions with respect to Respondent's motion to dismiss the instant complaint, it would normally remand the case to me for a decision on the merits. However, as I will not be available because of my retirement on July 1, 1972, I strongly recommend that in that event the Board itself proceed directly to a determination of the merits instead of remanding the case to a new Trial Examiner. The Board has the authority, which in the past it has exercised, to issue proposed findings and conclusions, and a proposed Order, when the Trial Examiner who heard the case has become unavailable.8 This would be particularly appropriate and efficacious in the instant case in view of the fact that all parties have submitted such extensive, detailed, and comprehensive briefs on all the issues herein involved and also in view of the lapse of time already incurred since the issuance of the complaint and the commencement of the trial. The instant record contains only a few direct conflicts in the testimony of witnesses. To the extent that it may facilitate the Board in adopting the procedure which I have recommended, I herein make the following credibility resolutions where the testimony is in conflict: Thomas A. Williams was the president of District 6 of UMW, with his office located in Bellaire, Ohio. Mary Saunders and Rose Koyder (whose maiden name was Angelo) were employed in his office as secretaries. John Archibald, a pensioner and member of Local 1110 of Division 4 of District 6, testified that in 1966 when he went to the office of District 6 to fill out his application for a pension, Mary Saunders told him that he would have to pay up his back dues in order to get his pension and that 739 she made arrangements for him to pay his back dues in three installments. Terry Snively, the financial secretary of Local 5497 of District 6 for about 15 years, testified that he was told by Mary Saunders and Rose Koyder (Angelo) both on the telephone and in person that the procedure he was to follow in the case of pension applicants was to have them pay up their back dues and reinstate their member- ship before they could get their pension. Both Mary Saunders and Rose Koyder denied having made the statements hereinabove attributed to them. Elmer Andrews, a member of Local 4285 of District 6, testified that in 1969 he was told by Zedmont Yzenski, the financial secretary of the Local, that he would have to get back into the Union and would have to pay up all his back dues in order to get his pension. Yzenski denied having made such a statement to Andrews. Guy Coleman, a member of Local 8328 of District 30, was denied a pension in 1967 because he had done some work in a nonunion mine. He testified that in January or February 1969 he was told by Carson Hibbits, the president of the District, that Coleman's pension'lvould be fixed up if he would drop his membership from the Association of Disabled Miners and Widows. Hibbits testified that he had no recollection of ever meeting Coleman. Based on my observation of the demeanor of the witnesses, I credit the testimony of John Archibald, Elmer Andrews, and Guy Coleman, as hereinabove set forth. CONCLUSIONS OF LAW 1. The retirees and pensioners are not employees within the meaning of Section 2(3) of the Act even in a context of Section 8(b)(1)(A) and (2). 2. Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclu- sions, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the complaint herein be dismissed in its entirety. 8 Sec 102 36 of the Board's Rules and Regulations, Series 8, as amended