United Mine Workers Of America, Local 2264, District 30 (Scotts Branch Co.)

430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Mine Workers of America, Local 2264, Dis- trict 30 (Scotts Branch Co.) and George F. Mitchell. Case 9-CB-6434 April 11, 1988 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 12, 1986, Administrative Law Judge Peter E. Donnelly issued the attached deci- sion in this proceeding. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The judge found, inter alia, that the Respondent did not violate Section 8(b)(1)(A) of the Act by al- legedly requiring employee George Mitchell to pay a $200 reinitiation fee. Noting that the General Counsel alleged in the complaint that the Respond- ent required Mitchell to pay an initiation fee as a condition "for returning to work," the judge dis- missed the allegation solely because Mitchell had worked 4 days before the Respondent disciplined him In our view, a fair reading of the allegation is that the Respondent violated Section 8(b)(1)(A) by requiring Mitchell to pay a second intiation fee as punishment for violating the union constitution, and thereby seeking to use the implicit threat of discharge under the union-security clause to collect the money. We therefore find that the judge erred in concluding that the General Counsel's argument to this effect was a new legal theory not encom- passed by the complaint and in summarily dismiss- ing the contention on that ground. Having rejected the judge's reasoning, we are unable to dispose of the case for the following rea- sons.1 At the outset, we note that the Union was per- fectly within its rights to fine or expel Charging Party Mitchell for working for a nonunion employ- er at a time when Mitchell was a member of the Union and thus subject to discipline for violating provisions of the union constitution. The Union could not, however, lawfully threaten Mitchell's employment status as a means of collecting such a fme. The General Counsel essentially alleges that the Union's written and oral communications to Mitchell reasonably could be construed as suggest- ing that a failure to pay the fme, which Was termed Member Johansen is satisfied that this case can be resolved on the basis of the record and the Judge's decision and would prefer to do so, particularly m view of the age of the case. Nonetheless, he will not fur- ther delay a decision by dissenting and, therefore, Joins in remandmg the proceeding to the Judge an "initiation fee," would result in his losing his job with the Company pursuant to the union-security clause. The Union's defense at the hearing before the judge was essentially that Union President Thacker made it clear to Mitchell, both at the union meeting on November 17 and in the Compa- ny's offices the next day, when Mitchell signed up to have the fee checked off from his wages, that calling the fine an "initiation fee" was only an ac- commodation to Mitchell. The Union explained that this was necessary to permit the fine to be de- ducted in installments from Mitchell's wages. Therefore, if Mitchell refused to agree to such a deduction, his job would be in no way affected, al- though he would still owe the money to the Union. The judge concluded: "Nothing in the record suggests that payment of the additional initiation fee has ever been made a condition for either [Mitchell's] recall or retention of employment." (Sec. III,B, par. 1.) We are reluctant to accept this conclusion without a finding concerning exactly what was said to Mitchell on November 17 at the Union's meeting and on November 18, when Union President Thacker appeared at the Company's of- fices with Mitchell in tow and the arrangement was made to have the fee deducted from Mitchell's wages in installments. Thacker's testimony conflicts with that of Mitchell, who testified that the $200 was never called anything but an "initiation fee." Thacker's testimony concerning what was said on November 18 conflicts with the testimony of both Mitchell and the Company's human resources su- pervisor, John Hodges, both of whom describe a brief conversation that does not include any expla- nation that the $200 was not in fact an initiation fee. The judge did not directly confront and re- solve these conflicts in testimony. If both Mitchell and Hodges testified truthfully, then it may be inferred that Mitchell reasonably be- lieved that he could not retain his job with the Company unless he agreed to the payment of the fine as an initiation fee, in installments to be with- held from his wages. 2 It is undisputed that the Union's July 1985 letter told Mitchell that he would be "dropped from UMWA membership" if he did show up at a meeting on July 21, 1985. It is also undisputed that when he went to the Union's meeting in November to get matters straightened out, the Union told him he could settle matters by agreeing to pay a $200 "initiation fee." Unless 2 In order to find such an unlawful threat, we need not have evidence of an explicit statement by a umon agent that an employee is vulnerable to discharge if he fails to pay a fine. It is sufficient that the Union's com- munication may reasonably be construed as dictating that an employee's failure to pay a fine can lead to his disnussal from his Job. See Elevator Constructors Local 8 v. NLRB, 665 F.2d 376 (D.0 Cir 1981) 288 NLRB No. 38 MINE WORKERS LOCAL 2264 (SCOTTS BRANCH) 431 Union President Thacker gave all the explanations he claims to have given, Mitchell could reasonably have believed that failure to agree to this proposed settlement would leave him a nonmember and therefore someone subject to discharge under the union-security clause.3 Accordingly, we shall remand the case to the judge for express resolutions of the conflicts in tes- timony concerning what was said in the encounters on November 17 and 18, and issuance of a supple- mental decision consistent with his fmdings. ORDER It is ordered that the proceeding is remanded to Administrative Law Judge Peter E. Donnelly to resolve the credibility conflicts described above. IT IS FURTHER ORDERED that the jduge prepare and serve on the parties a supplemental decision setting forth findings and conclusions concerning whether unfair labor practices occurred. Copies of the supplemental decision shall be served on all the parties, after which the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. " We note that although the Union may have given Mitchell the im- pression that he had been expelled, we are not presented with a case in which a union has actually expelled a member for violating its rules and then charged him an initiation fee when he later sought to rejoin. The Union here maintams that it never actually struck Mitchell from its rolls, and the record does not contradict that claim. Rather, the Union had de- fended on the ground that it dressed up a fine as an initiation fee but did so in such a manner as not to mislead Mitchell into feeling any job-relat- ed compulsion to pay the fine. Mark Mehas, Esq., for the General Counsel. Bernard Pafunda, Esq., of Pikeville, Kentucky, for the Respondent. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge. The charge was filed on 26 February 1986 by George F. Mitchell, an individual. A complaint thereon was issued on 10 April 1986 alleging that United Mine Workers of America, Local 2264, District 30 (the Union or Respond- ent) violated Section 8(b)(1)(A) of the Act by (1) requir- ing Mitchell to pay an initiation fee as a condition for re- turning to work with Scotts Branch Company (the Em- ployer or Company) even though Mitchell had previous- ly paid an initiation fee, and by (2) requiring Mitchell to forgo certain union activities for a period of 1 year while being required to maintain in good standing his member- ship in Respondent, as a condition for returning to work with the Employer upon recall by the Employer from layoff status, thus placing a restriction on Mitchell's union membership not required of other members. An answer thereto was timely filed by Respondent. A hear- ing was held before the administrative law judge on 9 and 10 June 1986 in Pikeville, Kentucky. Briefs have been timely filed by the General Counsel and Respond- ent which have been duly considered. FINDINGS OF FACT I. THE EMPLOYER The Employer is a Delaware corporation with an office and place of business in Lower Johns Creek, Pike County, Kentucky, where it is engaged in the manage- ment of a coal mining operation. The Employer is under contract with Pickands Mather Co. to hire employees and operate the above coal mining operation. The coal mine is a joint venture owned by Crawford Coal Compa- ny (40.8 percent) and Holland Carbon Hill, Inc. (59.2 percent). Pickands Mather owns Crawford and is the managing agent of the mine. The Employer is a Dela- ware corporation and is authorized by Pickands Mather to hire employees and to operate the mine on a day-to- day basis. During the past 12 months, the Employer provided services to Crawford Coal valued in excess of $50,000. During the same time period, Crawford Coal sold and shipped from the coal mining operation in Kentucky goods and materials valued in excess of $50,000 directly to points outside the State of Kentucky. Based on the foregoing facts, I conclude that the Employer and Craw- ford Coal Company are now, and have been at all times material, Employers engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts' Mitchell was first employed by the Employer on 15 February 1981 and worked until 11 June 1983, at which time he was laid off as part of a general layoff of some 200 employees. Mitchell was recalled on 13 November 1985 and worked thereafter until he went on leave due to a mine injury on 7 March 1986. From the time of his recall until going on medical leave Mitchell worked only sporadically due to illness. Mitchell presently retains his status as an employee. During Mitchell's layoff several mines in the area were being struck by the Union because they had not signed There is conflicting testimony regarding some of the allegations of the complaint In resolving these conflicts, I have taken into consider- ation the apparent interest of the witnesses. In addition, I have considered the inherent probabilities, the probabilities in light of other events; cor- roboration or lack of it; and consistencies or inconsistencies within the testimony of each witness and between the testimony of each and that of other witnesses with similar apparent mterests. In evaluating the testimo- ny of witnesses. I rely specifically on their demeanor and have made my findings accordingly. Although, apart from considerations of demeanor, I have taken into account the above-noted credibility considerations, my failure to detail each of these is not to be deemed a failure on my part to have fully considered it. Walker's, 159 NLRB 1161. 432 DECISIONS OF THE, NATIONAL LABOR RELATIONS BOARD the National Bituminous Coal Wage Agreement of 1984. It is undisputed that during his layoff Mitchell worked as a driver for a nonunion trucking company. The Union became aware of Mitchell's nonunion employment and on 28 June 1985, Edsel Goff and John Slone, president and financial secretary, respectively, of Respondent sent Mitchell a letter captioned "Re: Working Non-Union Mines." The body of the letter reads: It has been reported to the Local Union that you are working for a non-union company. Under Arti- cle 11, Section 7, any member going to work for a non-union company, upon proper notice and hear- ing as set forth in Article 15, shall forfeit their membership. You are hereby notified to be present at our next Local Union meeting to be held on Sunday, July 21, 1985, at 3:00 p.m. Failure to be present at that Local Union meeting will be cause to know that you are working for a non-union Company, and you will be dropped from the UMWA membership. When, and if, you return to work, you will be re- quired to pay a new initiation fee.2 Despite the fact that Mitchell did not respond to the letter or attend the 21 July 1985 meeting, there was no followup action taken at that time. However, at the Oc- tober 1985 meeting the matter was brought to the atten- tion of A. B. Thacker, the Union's new president, by some of the members. Thacker suggested that appropri- ate steps be taken as set out in the Union's constitution dealing with a member who worked for a nonunion em- ployer. Mitchell appeared at the monthly union meeting on Sunday, 17 November 1985. At this meeting Thacker confronted Mitchell with the matter and advised him that he had a right to a trial on the allegations set out in the 28 June letter, but that it would not be possible to have a trial that day. Mitchell, however, conceded that he had violated the union constitution and agreed to accept three items of union discipline, i.e., paying a new initiation fee, no participation in union affairs from 17 November 1985 to 17 November 1986, and to retake his "obligation" or pledge of allegiance as provided in the constitution of the International Union. These terms of agreement were written out by Jonathan Justice, finan- cial secretary, on the bottom of the 28 June letter and signed that day by Thacker, Justice, and Mitchell. Ac- 2 The United Mme Workers of America constitution, art. 11, sec. 7, reads: Any member going to work in a non-union mine, or performmg work for a non-union mine, or any other non-union Company within the jurisdiction of the International Union as defined in Article 3, Section 1, shall, upon proper notice and hearing as set forth in Arti- cle 15 hereof, forfeit their membership, unless such work is done with the consent of the President of the District where the non- union work was performed. Any member losing his/her membership under the terms of this Section shall be reinstated only by complying with the laws relating to such offense in the District where said of- fense was committed. I Art. 12, sec. 5, of the District 30 constitution contains the same provi- sion. Art. 15 of the United Mine Workers of America constitution sets out the trial procedures for charges filed against United Mine Workers members and officers. - cording to Mitchell, he agreed to the penalties, including a new initiation fee, because he was under the impression that as of 17 November 1985 he was not a member in good standing and that he needed to be a member in good standing under the current union contract in order to retain his employment.3 Thacker testified that the $200 was actually a fme rather than a second initiation fee, but was described as an initiation fee so that installment payments of $50 per month could be taken from Mitchell's pay by the Com- pany and submitted directly to the Union, which would have the effect of making it easier for Mitchell to pay and assure payment. Thacker testified, "And we knew that Freddie had a wife and a kid and I told Freddie and Freddie agreed to it, that we would make it as easy as we could for him, that he could pay this fine in payments. When he got his check, it didn't have to be out of his first check. And the only way we could have done that, was him pay the ini- tiation fee, because that's the only way the Company would take it up. And that would have been took out $50 of the payment." On the following day, Mitchell, Thacker, and Richard Tucker, a mine committee member, went to the office of John Hodges, Respondent's supervisor of human re- sources. Thacker advised Hodges that Mitchell had agreed to the deduction of a new initiation fee from his pay,4 and Hodges directed his secretary to begin to make the deduction. Because Mitchell has worked only sporadically since the fme, only one $50 payment has been deducted from his pay. B. Discussion and Analysis The General Counsel alleges in the complaint that "On or about November 17, 1985, Respondent required em- ployee George F. Mitchell to pay an initiation fee as a condition for returning to work with the Employer upon recall by the Employer from a layoff status even though Mitchell had previously paid an initiation fee." However, the facts adduced at the hearing clearly disclose that Mitchell was recalled from layoff status on 13 November 1985 and worked thereafter, albeit sporadically, until 7 March 1986 when he went on sick leave due to an injury at the mine. Thus it is clear that Mitchell had already been recalled as of 17 November 1985 and thus the alle- gation that he was required at that time to pay an initi- ation fee as a condition for returning to work is incor- rect. Mitchell has always enjoyed and continues to retain his status as an employee. Nothing in the record suggests that payment of the additional initiation fee has ever been made a condition for either his recall or retention of employment. Because the factual basis for this allega- tion of the complaint has not been established, no viola- tion can be predicated thereon and this contention must fail. 3 Art. I—Enabling Clause, provides, mter alia. It is further agreed that as a condition of employment all Employees at operations covered by this Agreement shall be, or become, mem- bers of the United Mine Workers of America, to the extent and in the manner permitted by law. . . 4 Initiation fees are normally deducted in $50 increments. MINE WORKERS LOCAL 2264 (SCOTTS BRANCH) 433 The General Counsel further alleges from the com- plaint that "On or about November 17, 1985, Respondent required employee George F. Mitchell to agree to forgo participation in activities of Respondent for a period of 1 year while being required to maintain in good standing his membership in Respondent as a condition for return- ing to work with the Employer upon recall by the Em- ployer from layoff status, thus placing a restriction on Mitchell's membership in Respondent not required of other members." As noted above, Mitchell had been re- called and was already working at the time that the dis- ciplinary action was imposed on 17 November and has thereafter retained his employee status. As with the initi- ation fee, the discipline could not therefore have been imposed as a condition either for his returning to work or retaining his employment. Similarly, this contention of the complaint must fail because the factual basis for the contention is erroneous. In his brief, the General Counsel puts forth for the first time another violation not alleged in the complaint, to wit: not that the disciplinary measures were imposed as a condition for returning to work, but that "requiring a new initiation fee in order to restore membership in a union, contrary to imposing a fine, does affect the Charging Party's employment status since there is a union security clause in the contract between Respond- ent and Employer." However, the complaint was never amended to reflect this allegation and it cannot fairly be said that this contention is encompassed within the alle- gations of the complaint. Although some of the facts ad- duced at the hearing bear on this contention, I cannot conclude that the matter was fully litigated, particularly where the Respondent was never put on notice of an 8(b)(I)(A) allegation predicated on an essentially differ- ent legal theory. In summary, I conclude that the evidence does not support the allegations of the complaint. CONCLUSION OF LAW The Respondent has not engaged in any violation of the Act. On these fmdings of fact and conclusion of law, I issue the following recommended5 ORDER The complaint is dismissed in its entirety. 5 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.