Mine Workers Local 2264 (Scotts Branch)

MINE WORKERS LOCAL 2264 (SCOTTS BRANCH) United Mine Workers of America Local 2264, Dis tract 30 (Scotts Branch Co) and George F Mitchell Case 9-CB-6434 November 30 1988 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 18 1988 Administrative Law Judge Peter E Donnelly issued the attached supplemental decision 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 Board has considered the supplemental deci sion and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings ' and conclusions and to adopt the recom mended Order The judge found no merit in the complaint alle gations that the Respondent violated Section 8(b)(1)(A) of the Act by requiring employee Mitch ell to pay a $200 reinitiation fee forego participa tion in the Union for a year and reaffirm his pledge of allegiance to the Union as conditions for returning to work We agree with the judge that the particular facts of this case warrant the conclu sion that the Respondent did not violate the Act 2 Based on credibility resolutions the judge found that the Union explained and 'Mitchell understood that the $200 sanction was a fine for Mitchell s vio lation of the Union s constitution The judge fur ther found that Mitchell conceded he had violated the constitution and had agreed to accept disci pline and that the Union for Mitchell s conven ience agreed to collect the fine by having it de ducted from his paycheck in $50 installments ' 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 We find it unnecessary to rely on the judge s finding that employee Mitchell knew he was a union member We also find it unnecessary to rely on the judge s implication that the handwritten statements on the June 28 1985 letter were evidence that Mitchell agreed to disguise the fine as an initiation fee These do not affect the judge s conclusion which we adopt that the Union explained and Mitchell understood that the $200 sanction was a fine 2 The General Counsel s exceptions to the judge s initial decision in cluded the contention that restricting Mitchell s right to participate in union affairs violated the Act Based on our holding concerning the mon etary sanction and our review of the unusual facts in this case we find no merit to the General Counsel s impairment of membership exception 959 Under these circumstances-Mitchell s conces sion that he violated the Union s constitution and his acquiescence in the discipline-coupled with the fact that nothing in the record indicates that the Union either directly or indirectly linked the payment of the fine with Mitchell s employment status we find no support for inferring linkage be tween the fine and Mitchell s employment ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed CHAIRMAN STEPHENS dissenting In my view the judge did not comply with the Board s remand order We directed the judge to re solve certain conflicts in the testimony a directive that I think under the circumstances contemplates at least taking into account demeanor and explain ing why one witness version of the facts (Thacker s) was more worthy of belief than other witnesses (Mitchell s and Hodges) The supple mental decision contains no such analysis save (1) a nondispositive finding that Mitchell agreed to the checkoff procedure for paying the $200 in install ments' and (2) an essentially outcome determina tive conclusion that it was inherently more logi cal that Mitchell understood the $200 obligation to the Union to be a fine rather than a second initi ation fee I do not think this exercise in logic is an adequate substitute for what the Board expected nor would I find it intrinsically valid 2 Although I agree with the point made by Member Johansen in the remand order that the Board should avoid un necessary delay in the processing of this case 3 I do not think that the Board can properly discharge its responsibility under Section 10(c) in the present state of the judges decisions In short I would have the judge try again That Mitchell may have agreed to the procedure does not answer the critical question of what the purpose of the $200 payment was 2 The judge deduced this conclusion from the fact that Mitchell was a union member on November 17 (the date on which the so called fine was imposed) and that he knew he was a union member albeit not a member in good standing To me it is just as logical (i e probable) if not more so that a person in Mitchell s position who is not a member in good standing would understand that payment of the $200 was neces nary to restore his membership to good standing status and thereby remove the threat of discharge 3 288 NLRB 430 In 1 (1988) Mark Mehas Esq for the General Counsel Bernard Pafunda Esq of Pikeville Kentucky for the Respondent 291 NLRB No 133 960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD SUPPLEMENTAL DECISION STATEMENT OF THE CASE PETER E DONNELLY Administrative Law Judge By Decision and Order dated September 12 1986 I dis missed the complaint concluding that the factual basis for the Complaint had not been established By Decision and Order Remanding on April 11 1988 (288 NLRB 430) the Board concluded that In our view a fair read ing of the allegation is that the Respondent violated Sec tion 8(b)(1)(A) by requiring Charging Party George Mitchell to pay a second initiation fee as punishment for violating the union constitution and thereby seeking to use the implicit threat of discharge under the union secu rity clause to collect the money The Board also re manded the case to me to resolve certain conflicts in tes timony and to decide on its merits the unfair labor prac tice issue raised by its view of the complaint FINDINGS OF FACT I FACTS George Mitchell a union member while on layoff worked as a truckdnver for a nonunion company at a time when several area mines were being struck by the Union This was in violation of the union constitution Mitchell was sent a letter dated June 28 1985 from Edsel Goff and John Slone union president and vice president respectively The letter was 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 in 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 There was no followup to this letter no notice or hearing and no disciplinary action was taken pursuant to the letter At the October 1985 union meeting the matter was first brought to the attention of the Union s new president A B Thacker by some of the union mem bers This was the first time that Thacker had seen the letter Thacker suggested that steps be taken to resolve the matter under the appropriate provisions of the union constitution i The United Mine Workers of America constitution art 11 sec 7 reads Any member going to work in a non union mine or performing 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 Arts Mitchell was recalled by the Employer on November 13 1985 Mitchell appeared at the monthly union meet ing on Sunday November 17 He spoke to the member ship and admitted that he had worked nonunion during the layoff He explained that he had been laid off and it was necessary for him to find work Thacker told Mitch ell that he was entitled to a trial and asked if he wanted one A contrite Mitchell responded No I don t I want to make it right with the Local I done wrong Mitchell told Thacker that he wanted to leave to go to church and that he wanted them to do what they had to do and he would agree Accordingly Mitchell agreed to accept three items of union discipline i e paying a new initi ation fee no participation in union affairs from Novem ber 17 1985 to November 17 1986 and to retake his obligation or pledge of allegiance as provided in the constitution of the International Union Thacker testified that he told Mitchell Freddie the only thing I know to do is to do what the Constitution-to my knowledge what the Constitution says and that is to fine you $200 and you have no right to run for offices and participate in local affairs other than your grievances and stuff like that for one year Thacker also testified that he and Jus tice went on to explain to Mitchell Well that is a fine He can t afford to pay $200 at one time we told him the only way we knew for him to pay in payments was to agree to pay we call it an initiation fee and the com pany would take it out at $50 at a time Mitchell agreed to this procedure These terms of agreement were writ ten by Jonathan Justice financial secretary on the bottom of the June 28 letter and signed by Thacker Jus tice and Mitchell At this time it appears that despite the June 28 letter Mitchell had not been expelled from the Union No disci plinary proceedings to expel him had been undertaken and Mitchell concedes that he was advised at the meet ing that he was a member but not in good standing be cause of having worked nonunion during the strike Mitchell does not dispute the substance of these con versations except to deny that there was any mention of a fine at the union meeting on November 17 1 e the $200 was only called an initiation fee Mitchell admits that he agreed to pay the $200 because he felt that he needed to in order to be a member in good standing with the Union which he thought was necessary to retain his job under the union security provisions of the collective bargaining agreement Mitchell testified that he had never the read the union security provisions of the con tract but was told about it by another union member some months previously There was also a meeting with John Hodges the Em ployer s supervisor of human resources at the Employ 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 Art 12 sec 5 of the District 30 constitution contains the same prove sion Article 15 of the United Mine Workers of America constitution sets out the trial procedures for charges filed against United Mine Worker members and officers MINE WORKERS LOCAL 2264 (SCOTTS BRANCH) er s office on November 18 attended by Thacker Mitch ell Hodges and Richard Tucker a mine committee member 2 Hodges testified that Thacker who was the only one who really spoke told him that Mitchell had agreed to pay a $200 initiation fee over again Hodges then instructed his secretary to begin a temporary mis cellaneous deduction to begin to have the initiation fee taken from Mitchell s pay According to Hodges Thacker did not explain his agreement with Mitchell Mitchell testified that Thacker dust told Hodges that Mitchell had agreed to have the initiation fee taken out of his pay It does not appear that the deduction was de scribed to Hodges as anything except an initiation fee and Hodges received no explanation for the request B Analysis and Recommendation The issue is whether Respondent violated Section 8(b)(1)(A) by requiring Mitchell to pay a second mitt ation fee as punishment for violating the union constitu tion thereby seeking to use the implicit threat of dis charge under the union security clause to collect the money Having carefully reviewed the testimony I am satin feed that Mitchell was advised and understood that he was not paying a second initiation fee but was in es sence paying a fine that was being disguised as an initi ation fee to facilitate payment In making this determina tion I rely on the credible factors set out in my original decision noting particularly that Mitchell was a union member on November 17 and was aware that he was a union member albeit not a member in good standing It is inherently more logical since he was and knew that he was already a member of the Union that the discipline imposed was in the nature of a fine rather than a second initiation fee Having concluded that Mitchell was aware that he was being assessed a fine rather than an initiation fee it is still conceivable that the Union had communicated, to him something that could reasonably be construed as dic tating that his failure to pay this fine could result in his dismissal However nothing said to Mitchell either at the union meeting on November 17 or at the meeting with 2 Tucker did not testify 961 Hodges on November 18 could be construed in such a way Mitchell s fear that the Employer could discharge him under the union security provisions of the contract for failure to pay the fine was apparently based on infor mation received from a fellow union member Nothing in the record suggests that the concept of dismissal for fail ing to pay the fine was conveyed to him by the Union either directly or indirectly so as to constitute an unlaw ful threat by the Union under the Elevator Constructors case See Elevator Constructors Local 8 v NLRB 665 F 2d 376 (D C Cir 1981) In short the Union was not responsible for any misunderstanding Mitchell may have had Regarding the November 18 meeting in Hodges office there was really no dispute that the $200 was de scribed to Hodges by Thacker as an initiation fee How ever this adds little to the picture One must assume that since the deal was to disguise the fine as an initiation fee because the Employer would not deduct a union fine from Mitchell s pay that the fine was described to Hodges in terms of an initiation fee without any expla nation of what the real nature of the deduction was in order to accomplish that purpose In short I conclude that Mitchell agreed to disguise what was actually a fine as an initiation fee in order to facilitate payment based on the assumption that the Em ployer would not deduct a union fine from Mitchell s pay Furthermore if Mitchell understood that he had to pay the fine in order to retain his employment that mis understanding was not the fault of the Union CONCLUSION OF LAW Respondent has not engaged in any violation of the Act On these findings of fact and conclusion of law I issue the following recommended" ORDER The complaint is dismissed in its entirety 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