Reitz Coal Co.

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Mine Workers of America, its District 2, and its Local 2202 (Old Devon Corporation, a wholly-owned subsidiary of the Berwind Corpo- ration, and S.C. Corporation, a wholly-owned subsidiary of A. T. Massey Coal Company, Partners d/b/a Reitz Coal Company) and Charles Gindlesperger. Case 6-CB-6958 12 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 5 June 1986 Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions3 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. Additionally, we are satisfied that the General Counsel's contention that the judge's credibility resolutions resulted from bias against Gindle- sperger is without merit. We find nothing in the record to suggest that i the judge's resolutions of credibility or the inferences he drew were based on either bias or prejudice. 2 The judge erroneously refers to the penalty given to Gindlesperger as being 4 weeks long. In fact, the penalty was approximately 20 weeks long. 8 In agreeing with the judge's dismissal of the complaint, we do not rely solely on his rationale We also find that even if the General Counsel had made a prima facie case, the Respondent carried its burden and es- tablished that in the absence of the filing of the charge Gmdlesperger would have received the same penalty under rule 7 of the Respondent's Selective Strike Assistance Program guidelines , which calls for a 1-week penalty for each week a member has a dues delinquency. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) Kim Siegert, Esq., for the General Counsel. Kurt Kobelt, Esq., of Washington, D.C., for the Respond- ent. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Ebensburg, Pennsylva- nia, on 26 March 1986, on complaint of the General Counsel against United Mine Workers of America, its District 2, and its Local 2202 (collectively the Union or the Respondent). The complaint issued on 31 January 1986, based on a charge filed by Charles Gindlesperger, here called the Charging Party, on 29 November 1985. The issue presented is whether the Union-Respondent discriminated against the Charging Party in enforcing certain rules applied to a strike situation and thereby vio- lated Section 8(b)(1)(A) of the Act. Briefs were filed by the General Counsel and the Respondent. On the entire record, and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Reitz Coal Company is engaged in the production and sale of coal. During the 12-month period preceding issu- ance of the complaint in this case, in the course and con- duct of its business this Company sold and shipped from its Pennsylvania facility products valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. I fmd that this Company is an employer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I fmd that the Union, United Mine Workers of Amer- ica, its District 2, and its Local 2202, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE In September 1984, there was a work stoppage at the Employer's coal mine. All the employees ceased work and began to picket the place. At the beginning of the hearing, in the complaint, the General Counsel called it a strike by the employees; later she agreed with counsel for the Union that it was a lockout or at least so consid- ered by the Union. It is not an important question here; what matters is that from that day to the day of the hearing in this case, the men did not work and continued the picketing for a long time. From the day they stopped working the union mem- bers became the beneficiaries of a new system established a few years ago by the International Mine Workers (the Selective Strike Program). Under that system all mem- bers of the Union, wherever located, contribute a small amount of their earnings into a central fund controlled by the International in Washington. Whenever there is a strike that is authorized by the central authority, the strikers receive a certain amount each week to make it possible for them to survive albeit without their regular salaries. In this way the burden of the economic struggle that is the constant problem of all unions is shared by all the members, and not born only by the unfortunate 282 NLRB No. 20 MINE WORKERS (REITZ COAL) 107 members who are involved in a particular strike. It is a sort of brotherhood idea. But before the strike can be said to fall within' the area of this Selective Strike Pro- gram, it must first be authorized by the officers of the International president. This strike was so authorized. There are certain written rules that come into play in these situations, called the guidelines by the witnesses. The most important one, of course, is that the strikers re- ceive $200 per,week in cash from the fund. The rules re- quire that all the strikers remain members in good stand- ing with the Union by paying their dues. During the strike the dues are reduced to only $1.25 a month. There is a further explicit requirement that any striker who earns over $1000 in a single month doing outside tempo- rary work must pay $40 a month to the fund as dues for that month instead of the $1.25. It is that requirement, deliberately ignored by one of the strikers, that gave rise to this proceeding. Charles Gindlesperger was one of the strikers. From 3 June 1985 to mid-November he held a regular job with another company and each month earned over $1000. Nevertheless, for June, July, and August he paid only $3.75 in dues, $1.25 for each of those 3 months, keeping quiet about his lucrative side job throughout that period. When word of this deception got about-and it even came from him for he did not deny bragging to, his fellow strikers about his outside earnings-the Local Union officers started questioning him, and started de- manding to see his paystubs showing how much he was earning elsewhere. He refused to show them, as he also admitted. He also did not pay dues at all throughout September and October. Meanwhile, he continued to re- ceive the $200 weekly payments from the Union. For such misconduct on his part, after the matter was fully investigated by the central authorities in Washington, Gindlesperger was penalized; he was denied 4 weeks' payments .of strike benefits-from 19 December 1985 to 20 January 1986. His payments were thereafter resumed. After much hassling between him and the local offi- cers charged with administering the strike benefit system-the officers saying they had a right to see his earnings record and Gindlesperger insisting it was none of their ' business-on 29 November he filed a charge with the National Labor Relations Board, accusing the Union of "restraining and coercing" him in his statutory rights. The complaint now says that man was denied 4 weeks' strike benefits in retaliation for having filed the charge, an allegation that if true would have been an unfair labor practice. The Respondent defends on the ground it did no more than impose a perfectly rational penalty for Gindlesperger's poor conduct as a union member. The complaint rests primarily on the fact that Gindle- sperger was penalized for not paying proper dues for a 4-month period, although other strikers, many of them who also paid dues every 4 or 5 months, were not penal- ized. Because the decision to penalize Gindlesperger was made after he had filed his charge with the Board, it fol- lows, according to the General Counsel, that the reason for the discriminatory treatment was the fact of his having filed a charge. In my considered judgment and in the light of the record in its entirety, I do not agree and shall therefore recommend dismissal of the complaint. The Evidence It is true that practically all the strikers paid their $1.25 monthly dues every 3 or 4 months, in the sum of $3.75 or $5 at once-some every 2 months, and some even over longer periods. But the union-maintained records of dues payments for the period September 1984 to December 1985 also show Gindlesperger was the only one of the strikers who ever paid $40 as monthly dues. In short, he was in a class by himself, the only striker lucky enough to earn $1000 a month while receiving the $200 weekly benefit from the Union. The evidence also is that Gindlesperger was the only striker to ibe penalized for nonpayment of dues. Among the rules set out in the Selective Strike Pro- gram guidelines is the following: No. 7. A member who is or becomes delinquent in his dues, including assessments, (except in those cases wherein the delinquency was not the fault of the member) and later acquires good standing mem- bership by paying his back dues, including assess- ments, prior to the strike, shall be penalized two (2) weeks' strike benefits for his delinquency. A. For each week during a strike a member waits to put himself in good standing, he loses another week of strike benefits (in addition to the initial 2 week penalty) as a penalty for failing to become a member in good standing. I can read this language as meaning that even a striker who is a week late-not to say 4 months!-in paying his $1.25 can be penalized 2 weeks of strike benefits--or the loss of $400. The Union did not interpret its rules that way. Gindlesperger himself paid his $1.25 a month once every 4 months during the strike-on 13 January, on 14 April, and on 8 September. At that point the Union treated him as it did everybody else. When its members are out of work, it would make little sense for the Union to defeat the entire purpose of its Selective Strike Pro- gram by withholding payments from everybody because of a more convenient method for collecting what was no more than a pittance. Gindlesperger's violation of union rules was an entire- ly different matter, one that the headquarters office in Washington had every right to appraise fully before de- ciding what to do about, him. And here I have in mind not only the difference between $1.25 a month and $40, although that fact alone, with the Union continually paying out money in large sums . . . cannot be ignored, and may in itself suffice to defeat this complaint. Gindle- sperger's more serious offense, the one that put him in "bad standing" as a union member, in the words of his union representatives, was deception, a fraud, pure and simple, practiced against his fellow union members. If the union officers in Washington, charged with the final responsibility in the administration of the Selective Strike Program, although investigating what happened , in checking the records maintained by the Local, did no more than look at a single entry dated 8 September 1985, 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had every reason in the world to penalize Gindle- sperger however they thought proper. On that day, 8 September 1985, as the records in evi- dence show, Gindlesperger paid $5 in dues for the months of May, June, July, and August. He had been working , continuously on a job that paid over $1000 a month since 3 June-3 months less a day or two. (In 1985 1 and 2 June were a Saturday and a Sunday!) What better proof could there be of Gindlesperger 's conscious, planned, and deliberate fraud against the Union's strik- ers? At the hearing he toyed with the idea maybe he did not know about the rules requiring $40 a month dues; he said he had only learned about them as "scuttlebutt" at a union meeting, "group talking among themselves, in August to September, probably," "it could have been Mr. Sanzo" (the Local Union president). There can be no question that on 8 September he knew he was re- quired to pay $40 monthly and deliberately cheated on the Union. Gindlesperger testified that it was after his false pay- ment of $1.25 dues on 8 September that Steve Paronish refused to pay him a $200 check and instead asked to see the man's paystubs for the job he was on. Gindle- sperger's own testimony about his answer to Paronish that day is enough to put an end to this case. "[H]e wanted to take proof of how much money I was making, he wanted to see my paystubs, and I said I wasn't going to show nobody my paystubs because how much money I made was none of his business . . . ." Gindlesperger went on that when Paronish told him he must pay $40 if he earned more than $1000, he told the officer, "I'll pay the union dues." But the fact is he did not pay , either when he paid for June, July, and August, or during the months of September and October, both months when he continued to earn over $ 1000. And the fact is that throughout the entire period of his outside employment Gindlesperger did refuse every demand by the Union's officers to show his paystubs. His fixed determination on this subject, as evidenced by his 8 September fraud , his flouting of Paronish's re- quest for inspection of his paystubs, and his arrogant be- havior on the witness stand, where he kept repeating that nobody in the Union has any right to see his employ- ment records, is also shown by a letter he wrote to the International president, Trumka, on 10 October 1985. In it he complained at length about the local officers' dis- criminatory treatment of him in many matters pertaining to the strike-picketing duty, personnel attendance at weekly union meetings, late payment of the $200 checks, and the unfair insistence that he show his earning records. Gindlesperger's antagonistic attitude towards the local officials could not be clearer. With this, I must also credit the hearsay testimony by Paronish that Sanzo, the president of the Local Union , told Paronish that when Sanzo demanded to see Gindlesperger's paychecks, Gindlesperger told him, "Fuck you." This particular strike presented a clearly unprecedent- ed problem to the Union ; no one else was earning over $1000 on an outside job, no one else was obligated to pay the $40 monthly dues, and no one else displayed such continuing animosity and disrespect towards the union officers. If,i in the end, the agents of the Interna- tional Union in Washington , who are responsible for the ultimate implementation of the Selective Strike Program, felt it necessary to really learn all that had happened lo- cally, it was a perfectly rational thing to do . The major part of the General Counsel 's argument-about disparate treatment, that Gindlesperger was treated differently than anybody else-has absolutely no basis of fact on this record. In support of the complaint the General Counsel also relies heavily on certain testimony by Gindlesperger about his talks with the Local Union officers . He' testi- fied that on 22 November 1985, when discussing his problem with Paronish, the officer told him he would be penalized 2 weeks' benefits payments for not paying his union dues properly, Some days later, on 29 November, Gindlesperger filed a charge with the Labor Board which says that the Union had "restrained and coerced" employees of Reitz Coal Company in their statutory rights. Gindlesperger also testified that on 16 December he had another talk with Paronish, again complaining about not receiving proper benefit checks. This time, ac- cording to Gindlesperger, Paronish told him "he didn't have a check for me because there was an-the Interna- tional was conducting an investigation to see if I was eli- gible for these checks, being that these charges were filed.", It is admitted that the final decision, made by the Washington office of the International Union, to penalize Gindlesperger by denying him 4 weeks of strike benefits was made after Washington had received a copy of the charge filed. Based on the foregoing, the General Coun- sel asks for a finding that the Respondent had decided before 22 November, and before the charge was filed, to penalize Gindlesperger only 2 weeks of strike benefits, and that the decision was changed and the penalty in- creased to 4 weeks because the man had filed that charge. On this record the argument is unconvincing, for it rests on only a selective part of the transcript. Paronish testified that when he learned of Gindle- sperger's bragging about how much he was earning he telephoned his superior in Washington, Paul Michel, to ask what was he supposed to do about such an unprece- dented situation. He had never faced such a case, no other striker came into that class, and he did not know what the rules called for. Michel is the Selective Strike coordinator in charge of the International Union Selec- tive Strike Program . He oversees the entire operation. Paronish testified as follows about a call he made to Michel about 5 August: I told Mr. Michel that there was one of the mem- bers of that Local Union was bragging on the floor, how much money he made. That he could make more in one day than we pay benefits for a, week, when he was asked why he wasn't on the , picket line, or why he wasn't there to pick up his checks. Q. What did Mr. Michel respond? A. Well, Mr. Michel instructed me that if he made that kind of money, that I should request a pay stub, because if over a thousand 'dollars ($1,000.00), was made he would have to be !paying working dues. MINE WORKERS (REITZ COAL) 109 Q. Did Mr. Michel instruct you-what to do in the event that Mr. Gindlesperger did not provide the pay stubs? A. ' Yes, he instructed me that I would have to cut his benefits off. Paronish added that he explained all this at the next weekly meeting to all the members, including Gindle- sperger. As stated above, Gindlesperger put this talk with Par- onish as having occurred on 15 September. I do not be- lieve him on that score, for he had already been earning the excess amount for 2 months by August and he had been telling his fellow strikers at the weekly union meet- ings about his high earnings . I find, therefore, that on 8 September 1985, when he came to the union hall and paid $1.25 dues for June, July, and August, he had al- ready been told explicitly what his proper dues were. Although the record is not absolutely clear, it seems agreed by all parties that by 19 November Gindlesperger had paid whatever dues he owed. On that day, as Paron- ish continued to testify, he called Washington to have Gindlesperger's payments resumed: I immediately called the International Washing- ton, D.C. and I asked Mr. Baker to put Mr. Gindle- sperger back on the selective strike computer, for payment of benefits, I said, effective 2 weeks from the day of request, from the 19th. Q. Why did you use the 2 week figure, Mr. Par- onish? A. Because in the conversation with the office Mr. Michel, he had told that there would be, at least, a 2 week penalty. And, I figured that I would put him on because he might need the money. On 9 December Paronish received a copy of Gindle- sperger's charge filed on 29 November. He telephoned Michel in Washington again that day. Concerning this talk his testimony is: I told Mr. Michel that Charles Gindlesperger had filed charges against us because of something on discrimination, and I couldn't understand why be- cause I had got him back on the computer and I thought everything was settled. Q. What did Mr. Michel say? A. Well, Mr. Michel was kind of upset with me. He asked me why did I put him back on. He said, I told you that it would be, at least, a 2 week penalty. And, I got a little hell over it, and he told me that I was to immediately get him off strike benefits until the investigation was completed on the amount that Mr. Gindlesperger received under false pretenses. Paronish did not contradict Gindlesperger's testimony that when his checks were stopped that day he told the striker the matter was awaiting investigation in Washing- ton in the light of the charge that had been filed. The first question here is: Did Paronish tell Gindle- sperger, on 22 November, that he was being penalized 2 weeks, or did he say "at least" 2 weeks? The two dis- agreed on that point as witnesses. In his prehearing affi- davit Phronish said- he had been told by Michel, from Washington, there would be a 2-week penalty. Michel's testimony is that he did tell the local officer it would be "at least" 2 weeks. Given the extraordinarily bad behav- ior of Gindlesperger throughout the events, I have no reason not to believe Michel's testimony that he left the matter open about just what was to be done about that man when he heard from Paronish of what was going on. When giving the affidavit Paronish could very well have forgotten exactly what words his superior had used. With Gindlesperger clearly being the less credible wit- ness at this hearing, I take Paronish's word as the more believable one on this record. But in any event, I do not believe that minor ques- tion-just what did the local agent say when telling the striker he would be penalized-is determinative of the case. Even were I to believe he did not tell Gindle- sperger it would be "at least" a 2-week penalty, I would still find this complaint without merit. When Paronish told Gindlesperger on 16 December, 2 weeks after the man had filed a charge against both the International and its local branches, that the Internation- al, in Washington, was going to "investigate" the matter, he did not threaten the man with any punishment for having filed the charge, or anything. It was a statement any party receiving a Labor Board charge would say. It is the central office in Washington that is ultimately re- sponsible for effectuation of the overall Selective Strike Program. For Michel to pass the word to Gindlesperger that he intended to get to the bottom of this thing was the most logical thing to do. With the continuing reports of Gindlesperger's refusals to produce evidence about how much he was earning on another job, with his writ- ten letter of October to the International president in his hands-in which the man accused the local officers of all kinds of misbehavior, and now with formal accusations of wrongdoing against the International ' Union, what could be more sensible for the International office than to "investigate" and learn as much as possible about what Gindlesperger had been doing? And when they did investigate they were able to prove that throughout it was Gindlesperger who had continuously misbehaved and that the union officials- local and International-had always behaved properly towards him. What better proof of this than the fact the Respondent was able to convince the Board's investiga- tors that there was no merit at all in the charge filed against it? Surely the General Counsel would not say there was anything wrong in the International " investi- gating" the charge filed against it.' i Among the exhibits received in evidence is an attachment to the complaint served on the Respondent, also dated 29 November 1985. In it the Board's Regional Director makes the following requests of the Re- spondent. You are requested to submit promptly a complete written account of the facts and a statement of your position in respect to the allega- tions set forth in the charge. All communications and submissions should be made to the Board agent indicated below Your coopera- tion with this office is invited so that all facts of the case may be considered How do I reconcile this request for "all facts" with the General Coun- sel's request now that I find that the Respondent proved its illegal intent when it informed Gindlesperger that it was going to obtain "the facts" 9 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only act of the Respondent called illegal in the complaint now before me occurred weeks after the charge was filed. This is equivalent to a finding by the Board's Regional Office that when filed, the charge had no merit at all. In all my years, I have never seen a com- plaint based solely on events occurring after the filing of the charge! This does not mean that a man's right to file Board charges is protected only when the charge proves to have merit. What it does prove to me is that, after checking all the facts-including the dues payment records maintained by the Local Union-the men in charge in Washington decided that in their judgment a proper penalty for Gindlesperger's continued misconduct would be 4 weeks' penalty. And the conduct included accusing the local officers of all kinds of misbehavior to- wards the members, neglecting his duty to picket-as Gindlesperger admitted he did while earning all that extra money-and deliberately defrauding the Union of properly owed dues during a strike. All this put Gindle- sperger in a very bad light. I am absolutely convinced that when the Union's cen- tral office in Washington decided to penalize Gindle- sperger the way it did, its reason for doing so was the man's past conduct, and not at all the fact he had filed a meritless charge with the Board. A contrary holding would rest purely on the timing; the final decision to pe- nalize, after investigating, was announced after Gindle- sperger filed a charge; ergo, it follows that the filing caused the decision to penalize. The argument will not do. Does an employee who formally informs his employ- er that he is a strong union adherent thereby acquire li- cense to misbehave on the job? Such a theory-guilt by presumption-was rejected long ago. I conclude that the Respondent penalized the Charg- ing Party the way it did because of his unprecedented misconduct as a union member. To its credit, it did not expel the man from membership altogether. I shall, therefore, recommend dismissal of the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER It is recommended that the complaint be dismissed. 2 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses