Mine Workers Local 6986 (Freeport Coal)

MINE WORKERS LOCAL 6986 (FREEPORT COAL) United Mine Workers of America and its Local 6986 (Freeport Coal Company , Inc.) and Labor Rela- tions Associates, Inc. Case 6-CB-7362 29 January 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On 4 November 1987 Administrative Law Judge Thomas A. Ricci issued the attached decision. The Respondents filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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,' and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, United Mine Workers of America and its Local 6986, Pittsburgh, Pennsylvania, their offi- cers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply." 2. Substitute the attached notice for that of the administrative law judge. ' The Respondents have 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 We further find, contrary to the Respondents' con- tention, that the judge's credibility resolutions were based in part on his observation of the witnesses In sec III of his decision the judge incorrectly referred to Local 6986 as Local 6985 and to Robert Keibler as an elected steward rather than an elected committeeman. We correct these inadvertent errors APPENDIX 1147 NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT impose internal union fines on former members of this Union for having crossed this Union's picket line after having resigned their membership. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights, guaranteed you by Section 7 of the Act. WE WILL reduce the fine imposed on Robert Keibler to $200. WE WILL remove from our records all references to the fine imposed on James Boarts and all refer- ences to the fine imposed on Robert Keibler in excess of $200. WE WILL notify both James Boarts and Robert Keibler that we have removed from our records all references to the improper and illegal fines imposed on them. LOCAL 6986, UNITED MINE WORK- ERS OF AMERICA Michael Poprik, Esq., for the General Counsel. Michael J. Healey, Esq. and Paul Girdani, Esq. (Healey & Davidson), of Pittsburgh, Pennsylvania, for the Re- spondents. DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge. A hear- ing in this proceeding was held in Pittsburgh, Pennsylva- nia, on 25 August 1987, on a complaint issued against United Mine Workers of America and its Local 6986 (the Respondents). The complaint issued on 12 August 1987, on a charge filed on 14 April 1987, by Labor Rela- tions Associates, Inc. (the Charging Party). The issue presented is whether two members of the Respondents Union were improperly fined in violation of Section 8(b)(1)(A) of the Act. Briefs were filed by the General Counsel and the Respondents. On the entire record and from my observation of the witnesses I make the following' 1. THE BUSINESS OF THE EMPLOYER Freeport Coal Company, Inc., with an office and place of business in Apollo, Pennsylvania, is engaged in the ' Certain errors in the transcript have been noted and corrected. 287 NLRB No. 111 1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hauling and sale of coal. During the 12-month period preceding March 1987, in the course of its business, it performed services valued in excess of $50,000 for Can- terbury Coal Company, which is itself directly engaged in interstate commerce within the meaning of the Act I find that Freeport Coal Company, Inc is an employer within the meaning of the Act III THE LABOR ORGANIZATIONS INVOLVED I find that United Mine Workers of America and its Local 6986 are labor organizations within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES James Boarts and Robert Keibler were long-time mem- bers of the United Mine Workers and its Local 6986, Keibler for 22 years For about 20 years they worked for a company called Perryville as truckdrivers, where the Union was their bargaining agent For 10 or 12 years, until Perryville closed down its business, Keibler had been the elected steward for the United Mine Workers Local in that Company, the only representative there. The Perryville truckdrivers transported coal for another company called Canterbury, which used regular mining employees, also represented by the United Mine Workers and its Local 6986 On 5 August 1985 Local 6986 called a strike at Canter- bury, and all its employees walked out. That same time Perryville stopped doing business and let all its people go because, I suppose, no coal was being mined at Can- terbury With the Union's strike against Canterbury having caused the loss of work at Perryville, its employ- ees all became eligible for strike benefits under the Union's selective strike program. There was picketing at the Canterbury location, and both Boarts and Keibler picketed there during November and December 1986 Like the strikers and other out-of-work employees from Perryville, both Boarts and Keibler received benefits from the United Mine Workers during that period Meanwhile, Canterbury resumed mining operations, and contracted with another company, called Freeport, to have its coal trucked from one place to another, some- thing like what Perryville used to do. On 2 January 1986 Boarts started working for Free- port as a truckdriver, crossing the Union's continuing picket line The next day Keibler too went to work for Freeport, also crossing the Union's picket line at the Canterbury Company's premises. On 8 January internal union charges were filed against both men for working across the Union's picket line and, on 16 February 1986, a trial board of the local union found the men guilty and imposed a fine of $6200 on each of them Boarts and Keibler filed appeals to the International Union. By letter dated 4 March 1987, the International informed both the men that their appeals had been denied and that the fines were upheld as final. The complaints alleged that these fines were improper, and in violation of Section 8(b)(1)(A) of the Act, because both Boarts and Keibler had resigned from the union membership before starting on their new jobs The de- fense is that they never did resign, that they violated union rules by working across the Union's picket line while still retaining their union membership There is presented a simple question of credibility. Did union steward Keibler, as he testified, on 4 January, telephone Richard Trinclisti, the president of the local union, and tell him that Boarts had resigned and that he, Keibler, was then and there resigning? Trinclisti, testifying in de- fense, denied Keibler having mentioned resignation at all by anyone in that critical conversation. The case rests es- sentially on who is to be believed regarding that very short talk between the steward and the president of the Union on 4 January 1986. As it happens, in the light of the entire record, and as a matter of pure rationalization, it is obvious to me that Keibler was telling the truth The finding is dictated by pure logic, if nothing else. As to Boarts, however, the issue does not involve a question of credibility. Boarts testified that on 1 January, the day before he started to work for Freeport, he tele- phoned Keibler and told him: "I was going to resign from the union And, I thought I should notify him be- cause he was my union steward So, he said, okay, he agreed with me " Testifying after Boarts, Keibler cor- roborated this testimony. "He called me and told me he was resigning from the union and was going to work for Freeport Coal Company " The mutual testimony of these two men regarding that conversation between them on 1 January stands, of course, uncontradicted. I have no reason for not crediting it Keibler was the only union officer among the employees of Perryville, where both men worked The Union's constitution contains no spe- cific rules about how the members may resign. It is not disputed that Boarts' statement to Keibler that day, if it did occur, was an adequate resignation. In addition, on 13 February 1986, Boarts wrote a letter to the local union, protesting the charge filed against him In it he wrote them that he had resigned from the Union. All this before the Union's trial board ruled against him. Clearly, on this record, Boarts had resigned his mem- bership before going to work and the Union, at least its elected officer, Keibler, knew it. It follows that the fine imposed on Boarts was in violation of the Act, and I so find Pattern Makers v. NLRB, 473 U S 95 (1985) When Boarts called Keibler on 1 January to tell him he was resigning, he also told him where he was going to work Keibler became interested and asked Boarts to inquire whether he too might get a job at Freeport Coal. The next day, when Boarts started working, he asked the owner of that Company about that possibility, and learned the Company might take Keibler also. Boarts im- mediately called Keibler and advised him to get in touch with the Company himself Keibler did that and was hired. The next day, 3 January, he started working. And then on 4 January, he telephoned Trinclisti to tell him both he and Boarts were resigning On this statement by Keibler that he worked across the picket line on 3 Janu- ary without first resigning from the Union, which he did on 4 January, it is clear the Union had a right to fine him for that 1-day violation of the union rules NLRB v. Allis-Chalmers Mfg. Co., 388 U S 175 (1967). MINE WORKERS LOCAL 6986 (FREEPORT COAL) . 1149 We come to Keibler's conversation with Trinclisti on 4 January. From his testimony: "I told him that Jim Boarts was resigning from the union, and I was going to work for Freeport Coal, and resigning from the union, too. I didn't want anybody to hear it-let him hear from anybody else, I wanted to tell him myself. . . . After I told him about going to work for Freeport Coal and ev- erything, he just said, "hold on, wait a minute," he said "I can't believe this." He said, "I'll have to get back to you," and hung up. Trinclisti's version of the conversa- tion follows: Q. Could you describe what Mr . Keibler said in that conversation , and what you said in that conver- sation? A. The conversation was a brief one and- Q. When you say, brief, how long, approximate- ly? A. Two or three minutes. Q. What was said? A. Mr. Keibler informed me, at that point, that Jim Boarts had got in touch with him inquiring as to how to quit the union , is the words he used. Q. And, what did he say after this-what was your response? A. That question was never really addressed in the conversation . From that point, he indicated to me that he wanted to let me know before anyone else informed me that he was going to cross the picket line and go to work at Canterbury. As stated above, Trinclisti simply denied there was any mention in that short conversation about anyone re- signing from the Union . He did not deny having said he could not believe what Keibler was telling him, and that he simply hung up without responding at all. Am I to believe that a 10-year elected officer of the United Mine Workers would cross his Union 's picket line, while receiving strike benefits from the Union, and tell his superior he was doing precisely that, without first, or at least simultaneously , resigning from the Union? Trinclisti did admit that the subject of resignation was brought up during the talk. He quoted Keibler as saying only that Boarts wanted to know how to go about resigning . But more important is the question of why would Keibler call the president to tell him only that he was going to work across the picket line? The last thing a longstanding union member-and especially an elected officer , would do is inform his superior that he was violating a basic rule of all unions. This is really what the entire defense consists of. I do not accept it, for human experience in this field makes it an incredible po- sition. After hanging up on Keibler, Trinclisti called him back and asked him to come to a meeting the next day. Keibler did that, when he met with the president and several other officers of the local union. At the hearing Trinclisti tried to make it appear that this meeting was no more than a regular gathering of the executive board, and that therefore Keibler's presence proves he still deemed himself a union member . It was not quite such a meeting, for Trinclisti admitted he asked two officials of the Union who did not attend such meetings-Morehead and Chrisman-to be present because of the problem raised by Keibler's telephone call and Keibler's expected presence. Keibler went to the meeting. After all, he had long been a union member, he knew these people, and it was to be expected he would be willing to explain his position to them. The discussion that took place was principally an effort by the union officials to talk Keibler out of going to work for the Freeport Company. With Keibler explaining that his reason was his need for money-the strike already 5 months old-Trinclisti told him the Union would try to help him, try to find him employment with some other company that operated union. They could not convince Keibler and it was all left at that. There was no mention of Keibler's resigna- tion during that meeting. Again, had Keibler not told Trinclisti the day before that he was resigning, if the president and his colleagues were not clearly aware that Keibler no longer consid- ered himself a union member, surely someone on the Union's part would have told Keibler it was not a nice thing for a union member to take a job across his union's picket line. Would not the men have talked to Keibler about his continuing to receive union benefits while working for Freeport if they believed he was still a member? No one did, and the reason can only be, as I find, that the union people knew he had resigned and were really trying to change his mind on that subject. I consider this significant fact an added reason for, discred- iting Trinclisti concerning the conversation the day before. Finally, after learning of the charges filed against them, both Boarts and Keibler wrote separate letters to the Union, protesting that the trial board was being im- properly selected, and reasserting their nonunion mem- bership. Each letter contains the following statement: With regard to charges brought against me, I con- sider myself as having resigned prior to crossing the picket line. I feel the circumstances involved in my situation as a truckdriver are not clearly understood and the charges are not justified. It was and remains my intention to resign from the Union. Their protests ignored, the two men did not appear at the trial hearing. On 30 March 1986 they learned of the local's ruling against them. On 30 May they appealed to the International Union. It was not until 4 March 1987- 9 months later-that the International upheld the Union's decision. 2 2 The Respondents moved to dismiss the complaint on the ground that the charge was filed too late, more than 6 months after the imposition of the fine by the local union. Board law is to the contrary and I therefore deny the motion. The following quotation is from the Board's decision in Laborers Local 383 (Chanen Construction), 221 NLRB 1283 at fn. 2 (1975): In the last paragraph of sec. A of the "conclusions" part of his Deci- sion, the Administrative Law Judge erroneously concluded that the 10(b) period commenced to run on October 7, 1974, the date Shaffer received notification of the executive board's decision and find. The error is no doubt inadvertent as the cases on which he relies stand for the proposition that the 10(b) period commences whenever the discipline becomes final under the Union's procedures. Thus, in the instant case the discipline became final on March 4, 1975, the date Shaffer was notified that the International had denied his appeal, and the 10(b) period commences on that date. 1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I find that the head union officials were aware of the two men's resignations, as they both testified, and that in imposing fines upon both of these men for having worked across the Union's picket line, after their resigna- tions, the Respondent Union-both the Local and its International-deliberately ignored the proper resigna- tions. By such action the Respondents violated Section 8(b)(1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of Freeport Coal Company, Inc., have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY The Respondents, must be ordered to cease and desist from again committing the unfair labor practices found here. They must expunge from their files all records re- lating to the fine imposed on James Boarts, and, except for the amount of $200, all records relating to the fine imposed on Robert Keibler above that amount. The Re- spondents must also be ordered to cease and desist from in any like or related manner committing unfair labor practices in the future. CONCLUSIONS OF LAW 1. By imposing internal union fines on James Boarts and Robert Keibler for having crossed the Respondent Unions' picket line after they had both resigned their membership in the Unions, the Respondents have violat- ed and are violating Section 8(b)(1)(A) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 3 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended ORDER The Respondents, United Mine Workers of America and its Local 6986, Pittsburgh, Pennsylvania, their offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Imposing fines on any of its former members or employees for crossing a union picket line of the Re- spondents after resigning their membership in the Unions. (b) In any like or related manner violating the statute. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the entire fine imposed on James Boarts in the sum of $6200 and remove from the Respondents' files all references to that fine. (b) Reduce the fine imposed on Robert Keibler to $200, and remove from the Respondents' files all refer- ences to the additional fine imposed on him in violation of the Act. (c) Notify both Boarts and Keibler, in writing, that the fine against Keibler has been reduced to $200 and that the remaining amounts against both Boarts and Keibler have been removed from the Respondents' files. (d) Post at their offices and meeting halls copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondents' author- ized representative, shall be posted by the Respondents immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to their members are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 4 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "