United Mine Workers Of America, Local 1575 (Peabody Coal Co.)

MINE WORKERS LOCAL 1575 (PEABODY COAL) United Mine Workers of America , Local 1575 (Pea body Coal Company) and Richard L Allard and Gerald C Wolfe and Gregory A Larson Cases 19-CB-6134 19-CB-6137 and 19-CB-6147 October 13 1988 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 13 1988 Administrative Law Judge William L Schmidt issued the attached decision The Respondent 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 2 and conclusions and to adopt the recommended Order 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent United Mine Workers of America Local 1575 its officers agents and representatives shall take the action set forth in the Order except that the attached notice is substituted for that of the administrative law judge 361 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 restrain or coerce you by process ing internal union charges imposing or collecting fines or otherwise implementing readmission con ditions for activities that you engage in after you terminate your status as full union members 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 rescind all fines readmission condi tions and recommendations imposed on Richard Allard Gregory Larson Dale Miller and Gerald Wolfe by our trial committees decision of August 5 1987 and refund to them any money they may have paid to satisfy such fines readmission condi tions or recommendations with interest WE WILL make Richard Allard Gregory Larson Dale Miller and Gerald Wolfe whole for any loss of earnings benefits travel expenses or any other expenses incurred as a result of their need to defend themselves against the charges un lawfully preferred against them WE WILL remove from our records any refer ence to the unlawful charges fines trial proceed rags readmission conditions and recommendations of the trial committee against Richard Allard Gregory Larson Dale Miller and Gerald Wolfe and notify them in writing that this has been done UNITED MINE WORKERS OF AMER ICA LOCAL 1575 The Respondent has requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and the positions of the parties ' In par I sec I A of his decision the judge stated that the Respond ent commenced an economic strike at the Employers mine on March 22 1987 Although we note that there is no specific evidence in the record about the factors precipitating the strike we find that the judge s charac tenzation of the strike as economic has no bearing on our decision here The type of strike involved is irrelevant to whether the Respondent unlawfully disciplined former members for their postresignation conduct In sec III of his decision the judge gave an incorrect citation for New Horizons for the Retarded The correct cite is 283 NLRB 1173 (1987) In adopting the judge s decision Member Cracraft does not rely on Food & Commercial Workers Local 81 (MacDonald Meat) 284 NLRB 1084 (1987) in which she dissented in part or on the proposition for which that case is cited Member Cracraft notes that the judge s findings of violations here are consistent with her MacDonald Meat dissent ' We shall substitute the attached notice for that of the judge which we have modified to correct certain inadvertent omissions Linda J Scheldrup Esq for the General Counsel Karen L Yablonski Toll Esq (McKendree Toll & Manes) of Denver Colorado for the Respondent DECISION STATEMENT OF THE CASE WILLIAM L SCHMIDT Administrative Law Judge On 2 September 1987 the Regional Director for Region 19 of the National Labor Relations Board (NLRB or Board) consolidated the timely filed cases in this proceeding and issued a formal complaint alleging that United Mine Workers of America Local 1575 (Respondent or Local 1575) violated Section 8(b)(l)(A) of the National Labor Relations Act (Act) by disciplining Richard Allard (Allard) Gregory Larson (Larson) Dale Miller (Miller) 291 NLRB No 57 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Gerald Wolfe (Wolfe) for refusing to engage in a strike after tendering valid resignations from membership in Local 1575 I heard this matter on 17 November 1987 at Miles City Montana i Having carefully considered the record the demeanor of the witnesses while testify ing and he parties postheanng briefs I make the fol lowing FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICES A Facts The hourly employees of Peabody Coal Company s Big Sky coal mine near Colstrip Montana are represent ed by Respondent 2 On 22 March the Respondent com menced an economic strike at the mine Between 7 and 14 April Allard Larson Miller and Wolfe tendered written resignations from membership in Respondent and returned to work crossing the Respondents picket line More specifically Allard tendered his resignation on 7 April and returned to work on 13 April His resignation reads UMWA Local 1757 [Sic] District 15 This letter dated 4-6-87 is to inform you that I Richard Allard do hereby tender my resignation from U M W A Local 1575 District 15 where I was hired December 13 1984 This resignation is effective immediately Larson tendered his resignation on 12 April and returned to work on 13 April Miller tendered his resignation on 14 April and returned to work later that day Their let ters addressed only to Local 1575 President Vinson contain the following identical body I hereby resign my membership in U M W A Local Union 1575 and District 15 However I do agree to provide fees or dues pursuant to a contractual union security clause in order to retain my core member ship Wolfe tendered his resignation on 12 April and returned to work on 13 April His letter reads To U M W A -Local 1575-District 15 ignation from U M W A -Local 1575 District 15 where I was hired on June 6 1977 However I do agree to provide fees or dues pur suant to a Contractual Union Security Clause in order to retain my core membership This resignation is effective immediately Each continued thereafter to cross the picket line to work on scheduled shifts until the strike was concluded on 12 May The Respondent was in receipt of all four resignations before Allard Larson Miller and Wolfe re turned to work In June members of Local 1575 filed charges against Allard Larson Miller and Wolfe alleging that the four had failed to uphold their obligation [to the Union s constitution] 3 Specifically the charges cited their fail ure to adhere to UMW constitution article 12 sections 5-9 and the initiation oath The pertinent constitution provisions obligate all members to support all authorized strikes observe all authorized picket lines and aid and support the enforcement of members duties under the Union s constitution For initiation to membership the prospective member pledges to abide by the [Respond ent s] laws and promises to cease work at any time called upon by the [Respondent] to do so The charges were filed with the Local 1575 recording secretary who thereafter served copies on each of the four individuals Allard Larson and Wolfe each re sponded by letters dated 17 June claiming in effect that the charges were illegal At a Local 1575 membership meeting on 21 June a trial committee was selected in accord with the provisions of the Respondents constitu tion 4 Between 21 June and 2 August the trial committee organized itself notified all parties of the 2 August hear ing it planned to conduct and otherwise performed nec essary preliminary tasks in preparation for the hearing The trial committee hearing lasted approximately 55 minutes on 2 August Several individuals appeared and provided testimony supporting the charges brought against Allard Larson Miller and Wolfe Of the four only Larson appeared at the hearing Apart from insist ing that the committee read his 17 June response to the charges Larson declined to participate in the proceed rags The committees decision was reached on 2 August following 4-5 hours of deliberation and it issued in writ ten form on 5 August The decision concluded that Al lard s April resignation was effective as to the United Mine Workers of America (UMW) UMW District 15 This letter dated April 13 1987 is to inform you that I Gerald C Wolfe do hereby tender my res I All dates are in 1987 unless noted otherwise 2 Peabody Coal Company (Peabody) a Delaware corporation with a place of business in Colstrip Montana is engaged in the business of mining coal The complaint alleges and the answer admits that Peabody has direct inflow or indirect inflow to Montana exceeding $50000 and direct outflow or indirect outflow from Montana exceeding $50 000 Pea body therefore is an employer engaged in commerce within the meaning of Sec 2(2) (6) and (7) of the Act Local 1575 is a labor organization within the meaning of Sec 2(5) of the Act I find that it would effectuate the purposes of the Act for the Board to exercise its statutory jurisdiction over this labor dispute 3 A separate five page charge was filed against the four for each day each individual was known to have crossed the picket line All charges are identical apart from the date of the alleged infraction the specific in dividuals charged and the individuals signing the charge Altogether Allard was charged with an unauthorized crossing of the picket line 24 times Larson 28 times Miller 25 times and Wolfe 27 times Allard and Larson were charged with crossing the picket line on 6 April before either had attempted to resign Larson crossed the line on that date for the purpose of delivering a medical insurance claim before it became stale Allard crossed the picket line to question a company official about anonymous telephone threats he had received No claim is made here that the disciplinary proceeding failed to strictly follow the Respondents constitutional procedures in any respect or that those procedures are defective in any manner MINE WORKERS LOCAL 1575 (PEABODY COAL) 363 and Local 1575 For this reason the trial committee did not fine Allard Nevertheless the committee viewed Al lard s resignation in the middle of a strike to be a viola tion of a member s obligation to his fellow union mem bers and to the union It concluded that Allard had abandoned the union at a time when [his] loyalty and support was needed most Because of this disloy alty the committee imposed as a condition for Allard s readmission to the UMW a requirement that he pay one fourth of all expenses incurred to prepare and conduct [the] trial and its proceedings In addition the decision states that the committee would recommend to the UMW president that in the event of another strike Allard be docked 48 days of strike benefits two days for every day [he] worked during the strike of 1987 The trial committee concluded that the resignations of Larson Miller and Wolfe although effective regarding their membership in Local 1575 and District 15 were not effective regarding their membership in the UMW This conclusion was grounded on the punctuation (or lack thereof) used in referring to the three organizations in the body of their letters and the fact that all three let ters alluded to maintaining their core membership In the committees view core membership referred to membership in the UMW Accordingly the committee fined Larson Miller and Wolfe $200 for each day they crossed the picket line Larson s total fine amounted to $5600 Millers is $4800 and Wolfe s is $5400 In addi tion the committee concluded that letters written by Larson and Wolfe in June to protest the charges against them constituted effective resignations from the UMW and hence imposed the same readmission conditions (one fourth of the cost of the proceedings) as was im posed on Allard Finally the committee decisions state in all three instances that a recommendation would be made to the UMW president that each be docked future strike benefits at the rate of 2 days for each day worked during the 1987 strike There is no indication that any of the penalties im posed against Allard and Larson related to their preresig nation crossing of the picket line on 6 April for nonwork purposes B Argument The General Counsel argues that the resignations of Allard Larson Miller and Wolfe were effective regard ing the UMW and its subordinate components and that they were disciplined for their postresignation conduct Additionally the General Counsel argues that no part of the discipline imposed on these four former members is protected by the proviso to Section 8(b)(1)(A) Respondent contends that Larson Miller and Wolfe resigned only from Local 1575 and District 15 but not from the UMW Accordingly Respondent argues that the fines imposed on these three individuals are lawful The Respondent also believes that it acted lawfully by conditioning the reacquisition of membership on the pay ment of a portion of the costs of the disciplinary pro ceedings Such conduct Respondent argues is protected by the proviso to Section 8(b)(1)(A) Finally Respondent contends the recommendation that all four be docked future strike benefits is likewise defensible on the same ground as that recommendation is merely a further condition of reacquisition of membership C Conclusions Section 8(b)(1)(A) of the Act provides that it is an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of the rights guaran teed in Section 7 [of the Act] Section 7 of the Act guarantees that employees in essence may engage in union or concerted activities to improve their wages and working conditions or refrain from engaging in such ac tivities (subject to certain limitations in Sec 8 (a)(3) con cerning the acquisition and retention of membership de scribed more fully below) if they so choose The proviso to Section 8(b)(1)(A) on which Respondent relies for a portion of its defense provides that the general proscrip tion of that Section shall not impair the right of a labor organiza tion to prescribe its own rules with respect to the acquisition or retention of membership therein An employees refusal to engage in a strike or honor a picket line is protected by Section 7 Machinists Booster Lodge 405 v NLRB 412 US 84 (1973) However a labor organization may lawfully discipline its members for their failure to engage in a lawful strike or honor a lawful picket line NLRB v Allis Chalmers Mfg Co 388 U S 175 (1967) An employee may escape such discipline by resigning full membership in a labor organization that restricts such activities i e refusing to strike or crossing a legitimately established picket line before engaging in those activities NLRB v Textile Workers Local 1029 Granite State Joint Board 409 U S 213 (1972) An em ployee s resignation from membership in a labor organs zation may be communicated either orally or in writing and need only convey a clear intention to resign Service Workers Local 80 (Capitol Husting Co ) 235 NLRB 1264 (1978) Resignation from membership becomes effective on receipt by the labor organization Teamsters Local 439 (Tracy American Ready Mix) 281 NLRB 1232 (1986) If a member resigns and subsequently engages in conduct violating union rules and regulations the union may law fully expel or suspend the former member provided such action does not have monetary implications Food & Commercial Workers Local 81 (MacDonald Meat) 284 NLRB 1084 fn 12 (1987) Section 8(a)(3) of the Act permits an employer and a labor organization to enter into and maintain an agree ment requiring membership in a labor organization as a condition of employment When such an agreement exists the employee must acquire and maintain member ship to avoid exposure to discharge Notwithstanding Section 8(a)(3) s literal language the nature of the mem bership required to avoid such exposure is said to be lim ited to the financial core aspect of membership NLRB v General Motors Corp 373 U S 734 (1963) In essence this means that an employee may only be required to pay those initiation fees and dues uniformly required of mem bets and need not become a full union member subject to a wide range of union rules and regulations Hershey 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Food Corp 207 NLRB 897 (1973) enfd 513 F 2d 1083 (9th Cir 1975) Put another way an employee is subject to the complete scope of union rules and regulations but full membership may not be required as a condition of employment NLRB v Allis Chalmers supra at 196 Applying the foregoing principles to the facts here Respondent received the April resignation letters of Allard Larson Miller and Wolfe prior to their abandon ment of the 1987 strike by returning to work All four letters suffice to preclude the imposition of in ternal union discipline Respondent concedes that Al lard s letter (which made no mention of maintaining a financial core membership) constituted a complete res ignation of membership status As to the remaining three resignations I reject Respondents contention that they were ineffective as to the UMW The remaining letters evidence a clear intention (regardless of what they say about resignation) to alter their status from full union members to financial core members Contrary to the trial committee I find that core membership as used by Larson Miller and Wolfe refers to the common legal usage mentioned above and not to membership in the UMW As a labor organization may not impose internal union discipline of the type found in this case on either a former member or any individual who alters his/her status to that of a financial core member I find Respond ent violated Section 8(b)(1)(A) of the Act by doing so here Carpenters Local 470 (Tacoma Boatbuilding) 277 NLRB 513 (1985) Carpenters Seattle Council (Gordon Construction) 277 NLRB 530 (1985) The conclusion here reaches not only the fines im posed on Larson Miller and Wolfe but also all the re admission conditions Respondent imposed Both the tenor of the trial committees findings and the circum stances giving rise to the readmission requirements estab lish that the readmission conditions are in effect a mon etary penalty imposed on Allard Larson Miller and Wolfe for exercising their Section 7 right to refrain from striking Such penalties violate Section 8(b)(1)(A) Food & Commercial Workers Local 81 (MacDonald Meat) supra Professional Engineers Local (General Dynamics) 272 NLRB 1051 (1984) II THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth above occur ring in connection with the operations of Peabody Coal Company have a close intimate and substantial relation ship to trade traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce III THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act I shall recom mend that the Board order it to cease and desist there from I shall also recommend that the Board order the Respondent to rescind all unlawful fines readmission conditions and recommendations remove all references to the charges and trial proceedings from its records and notify the four affected employees in writing of the re scission and removal I shall also recommend an order requiring the Respondent to refund any money paid as a result of the fines and conditions imposed plus interest as computed in New Horizons for the Retarded 283 NLRB 1173 (1987) Moreover Respondent shall be required to reimburse each employee for travel and other expenses incurred in defending themselves against the charges found unlawful herein in the manner specified in Labor ers Northern California Council (Baker Co) 275 NLRB 278 (1985) and Machinists District 94 (McDonnell Doug las) 283 NLRB 881 (1987) Finally I recommend the Respondent be required to post an appropriate notice to members CONCLUSIONS OF LAW 1 Peabody Coal Company is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 United Mine Workers of America Local 1575 is a labor organization within the meaning of Section 2(5) of the Act 3 By processing internal union charges imposing fines and readmission conditions and recommendations against Richard Allard Gregory Larson Dale Miller and Gerald Wolfe employees of Peabody Coal Compa ny for activities in which they engaged subsequent to terminating their status as full union members the Re spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 4 The aforesaid unfair labor practices affect commerce 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 ed5 ORDER The Respondent United Mine Workers of America Local 1575 Colstrip Montana its officers agents and representatives shall 1 Cease and desist from (a) Processing internal union charges imposing or col lecting fines or otherwise implementing the readmission conditions and recommendations of its trial committee s written decisions of 5 August 1987 against Richard Allard Gregory Larson Dale Miller and Gerald Wolfe employees of Peabody Coal Company for activities they engaged in subsequent to the termination of their status as full union members (b) In any like or related manner restraining or coerc ing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act 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 MINE WORKERS LOCAL (a) Rescind all fines and readmission conditions and recommendations as they relate to Richard Allard Greg ory Larson Dale Miller and Gerald Wolfe for activities in which they engaged in subsequent to the termination of their status as full union members and refund to them any money they may have paid as a result of the impose tion of such fines or readmission conditions or recom mendations in the manner set forth in the remedy section of this decision (b) Remove from its records all references to the un lawful charges trial committee decisions fines and read mission conditions and recommendations and notify Richard Allard Gregory Larson Dale Miller and Gerald Wolfe in writing that all fines and readmission conditions and recommendations imposed against them have been rescinded and all records thereof have been removed (c) Make Richard Allard Gregory Larson Dale Miller and Gerald Wolfe whole for any loss of earnings benefits travel expenses and any other expenses incurred as a result of their need to defend themselves against the charges unlawfully preferred against them 1575 (PEABODY COAL) 365 (d) Post at its business office and meeting halls copies of the attached notice marked Appendix 6 Copies of the notice on forms provided by the Regional Director for Region 19 after being signed by the Respondent s authorized representative shall be posted by the Re spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or cov ered by any other material (e) Sign and return to the Regional Director for Region 19 sufficient copies of the notices for posting by Peabody Coal Company if willing at all places where notices to employees customarily are posted (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 6 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