United Mine Workers of America

UNITED MINE WORKERS OF AMERICA United Mine Workers of America and International Union of Representatives and Staff Workers of America, Petitioner. Case 5-RC-8407 August 13, 1973 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Donald J. Salins of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the Nation- al Labor Relations Board Rules and Regulations, Ser- ies 8, as amended, and by direction of the Regional Direction for Region 5, this case was transferred to the National Labor Relations Board for decision. The Employer and Petitioner have filed briefs in support of their position. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case the Board finds: 1. The Employer is an International labor organi- zation with headquarters in Washington, D.C., and district offices throughout the United States and Can- ada. The parties have stipulated and we find that the Employer is engaged in commerce. Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer.' 3. No question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act for the following reasons: As noted above, the Employer is an International labor organization with headquarters in Washington, D.C., and district offices throughout the United States and Canada. The Employer has a membership of ap- proximately 190,000 and has a three-tiered structure; namely, the International Union, 24 Districts (22 in the United States and 2 in Canada), and hundreds of local unions under the jurisdiction of the various dis- tricts. Petitioner seeks a unit of International representa- tives and staff representatives,2 excluding office cleri- cal employees, maintenance employees, guards, and supervisors. The staff representatives are semiprofes- 1 Employer contends that the Petitioner is not a labor organization within the meaning of Section 2(5) of the Act As Petitioner admits employees to membership and its purpose is to seek a collective-bargaining contract cover- ing certain employees of the Employer , we find it is a labor organization within the meaning of the Act Butler Manufacturing Company, 167 NLRB 308 2 Collectively referred to herein as staff employees 509 sional personnel assigned to the various district and subdistrict offices. Their work involves various duties, including participating on behalf of Employer's mem- bers in grievance matters and workmen' s compensa- tion proceedings, black lung counseling, safety coordination, and engaging in drives to organize the unorganized. The historical method of operation has been as fol- lows: At the time of the hearing herein, there were 134 persons who were staff employees. The number of such employees in each District varies according to the size of the District; there may be from 15 to none working in a particular District at any given time. Staff employees have been appointed either by the International or by the district president with the International's approval. There is no history of bar- gaining as to the unit requested. As a general rule, staff representatives work in the District where they are hired, but it is not unheard of for them to work outside their own Districts, and these transfers take place at the direction of the Inter- national. The International representatives work where and as needed by direction of the International, and may be assigned to the Districts on a short term basis in emergency situations. The benefits of the staff employees are uniform and the labor relations policy is centrally established. However, their salaries are not uniform. In addition, the International's control over the District includes financial support of the dis- trict offices by the International treasury, subsidizing district offices, auditing district financial reports, and substantial participation by the International in dues collected by the district offices from members. The Employer has been involved in litigation under Title III of the Local-Management Reporting and Disclosure Act of 1959,3 hereinafter called LMRDA, some initiated by the U.S. Secretary of Labor and some by private parties. The Employer asserts that substantial changes are occurring in the International Union and Districts at present, and additional changes will take place in the future, all as the result of various court orders requiring, inter alia, a new election of International officers, elections of the Dis- tricts' officers, and the holding of district conventions for formulation and adoption of district constitutions. Newly elected International officers took office De- cember 22, 1972, and pledged themselves to full au- tonomy for all Districts, i.e., each will have officers elected by members voting in that District, will have their own constitutions, and will elect their own repre- sentatives . These conditions are in sharp contrast with the practice under which officers of most of the Dis- tricts were appointed by the International president 3 In brief, Title III of LMRDA limits the purpose and periods of time for which trusteeships may be maintained over subordinate labor organizations 205 NLRB No. 87 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under trusteeships imposed by the International and continued from as far back as the 1920's and 1930's. Thus, of 22 Districts, 17 were under trusteeships; only 2 were "autonomous," in that all officers were popu- larly elected; and 2 were "partially autonomous," that is, their respective International executive board members and district executive board members were popularly elected but the International president ap- pointed their district presidents and secretary-treasur- ers. The record herein reveals that some of the court-ordered elections have taken place, and appar- ently the last one will take place in August 1973. There are other Districts which were not, at the time of the hearing, involved in litigation over the trusteeships, but so far as can be determined from the instant re- cord are to be settled by agreement of the parties involved in the suits noted above. In support of its claim of anticipated changes, the Employer states that it has terminated the employ- ment of 26 of the 50 International representatives assigned to the district offices, but as a lawsuit is pending over some of these terminations, there have been no further terminations and no new hires. Fur- ther, it is alleged by the Employer that in the future the district representatives' functions will be per- formed largely by elected officers of the Districts so that there will be a further reduction of such employ- ees. The Employer also asserts that with the coming changes of district autonomy, the International will no longer be hiring, firing, promoting, transferring, paying, or otherwise exercising primary authority over staff representatives. The Employer takes the position that, even if the unit were otherwise appropriate, this is a contracting unit or fluctuating work force and the petition should be dismissed or action held in abeyance until after all district elections have been held and the June 1973 International convention has been concluded. The Employer also asserts that each District constitutes a separate labor organization apart from the Interna- tional and that each District and the International are therefore separate employers. The Employer argues that the unit sought is inappropriate because (1) it would be a multiemployer unit although there is no history of bargaining in such a unit, (2) it would com- bine employees of the International Union and the various Districts, and (3) it would include supervisors (elected officials) in a unit with employees. Finally, the Employer asserts that the Petitioner's representa- tive (attorney Robert S. Perkins) has a conflict of interest which is incompatible with Peitioner's repre- sentation of UMWA's employees because he is a member of a law firm which represents former Inter- national officers who attempted to challenge their re- moval in the United States Court of Appeals consider- ing the trusteeship case and because an associate of the firm is plaintiff in a suit against UMWA challeng- ing his removal as general counsel of the Union. The Petitioner takes the position that the changes are not such as to require dismissal of the petition, because it seeks only all nonsupervisory employees and the unit will not be totally eliminated by the reorganization as the functions will continue to be performed by staff representatives (whether old em- ployees or new hires) and others (regardless of the title that may be used). As to the scope of the unit, the Petitioner asserts that what it is seeking constitutes a traditional single-employer unit and the method of operations warrants finding the employerwide unit appropriate. In this case we are faced, as we frequently are, with the problem of weighing conflicting interests.4 Assum- ing, without deciding, that the unit sought is appropri- ate and that an election might otherwise be warranted, we believe that the instant case presents a special situtation in which extraordinary consider- ations compel a different result. While such situations arise infrequently in the representation case area, they have been presented to the Board in the past. Thus, in Aerojet-General Corporation, supra, it was held that an election would be inappropriate, although the Board would normally have directed one, in view of the intervention of the President of the United States and the Secretary of Labor in the national interest and their setting up special procedures to resolve the con- tract dispute in order to avert serious damage to the Nation's vital defense program that a strike would have caused. The Board there said, at 371-372: In the particular circumstances of this case, we do not believe it would be in the national interest to direct an election based on the present peti- tion. Administration of the National Labor Rela- tions Act, it must be remembered, is an important, but not the sole, instrument of our national labor policy. Although exclusive juris- diction over representation matters has been committed to the Board, we do not regard this as a license to carry out our responsibilities with myopic disregard for other important consider- ations affecting the national interest and well- being. We have in the past in appropriate situa- tions taken into account and sought to accommodate our proceedings to other instru- ments of the national labor policy. We believe that this also is such a situation. For us to hold on the facts of this case that an entertainable question concerning representation 4Aerojet-General Corporation, 144 NLRB 368 UNITED MINE WORKERS OF AMERICA 511 was raised by the filing of the petition simply because the settlement reached had not yet been consummated by written agreement, would be to act at cross-purposes with, and possibly impede, the Government-sponsored procedures that were set up to, and did, maintain industrial peace and stability in the critical defense industry here in- volved. . . . Although there are obvious differences between the cases, this rationale is equally applicable to the situa- tion now before us. The reorganization of the Em- ployer and its Districts results from proceedings begun by the Secretary of Labor in 1964 and actions initiated by private parties in 1971 and 1972. They are pursuant to, and are enforcing rights granted under, the Labor-Management Reporting and Disclosure Act,' and have resulted in orders with which there has not yet been full compliance. For us to hold now that an election is warranted at this time would be at cross- purposes with, and possibly impede, the government- initiated procedures set in motion by those suits, and might also interfere with possible voluntary resolu- tions of existing issues concerning some of the Dis- tricts. In reaching our conclusion here, we consider it sig- nificant that the second election directed by the court resulted in the election of new International officers who have instituted sweeping changes, the full effect of which have not yet been realized. Included among those changes, however, is the election of district offi- cers by the membership, and it is these officers who will be the immediate supervisors of the staff repre- sentatives the petitioner seeks to include in its unit. Accordingly, it appears that the principal participants on behalf of the Employer, or their policies, may change as the result of the court orders. Furthermore, as noted above, a court action is also pending which contests the discharge of 26 of the staff employees whom the Petitioner seeks to represent. It thus ap- pears that both the Employer's setup (and its repre- sentatives) and the employee complement are uncertain, and neither a conclusive election nor meaningful negotiations could be anticipated. For all the above reasons, we find that it will best effectuate the purposes of the Act to dismiss the peti- tion herein, without prejudice to its being refiled after the situation stabilizes following reorganization at the district level. ORDER 3 LMRDA, Sec 2(a) It is hereby ordered that the petition herein be, and it hereby is, dismissed.