United Mine Workers Of America, Local 1058 (Beth Energy Corp.)

MINE WORKERS LOCAL 1058 (BETH ENERGY) 389 United Mine Workers of America, Local 1058 (Beth Energy Corporation) and Dowl Johnston United Mine Workers of America, Local 1501 and Dowl Johnston - United Mine Workers of America, Local 1570 and Dowl Johnston United Mine Workers of America, Local 1829 and Dowl Johnston United Mine Workers of America, Local 1938 and Dowl Johnston United Mine Workers of America, Local 1949 and Dowl Johnston United Mine Workers of America, Local 9909 and Dowl Johnston United Mine Workers of America, District 31 and Dowl Johnston United Mine Workers of America, International Union and Dowl Johnston. Cases 9-CB-7024- 1, 9-CB-7024-2, 9-CB-7024-3, 9-CB-7024-4, 9-CB-7024-5, 9-CB-7024-6, 9-CB-7024-7, 9- CB-7024--8, and 9-CB-7096 August 9, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT On October 25, 1989, Administrative Law Judge Stephen J Gross issued the attached decision The General Counsel filed exceptions and a supporting bnef, 1 and the Respondents filed an answenng 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, findmgs, 2 and , In his brief, counsel for the General Counsel moved that the record be reopened and a letter dated April 20, 1989, to Dowl Johnston from the United Mine Workers International Executive Board Trial Commis- sion be received Into evidence The letter was included with the General Counsel's brief as Attachment A The Respondents filed a motion to stnke Attachment A of the General Counsel's brief They contend that the April 20, 1989 letter had been sent long before the judge issued his October 25, 1989 decision, that counsel for the General Counsel had ample opportunity to move to reopen the record before the judge (who could appropnately have ruled on the document's admissibility) but failed to do so, and that Attachment A is not a part of the record and cannot provide a basis for any decision by the Board We find that Attachment A of the General Counsel's brief is not a part of the record in this proceeding See Sec 102 45(b) of the Board's Rules and Regulations Nor does It constitute newly discovered evidence Ac- cordingly, we deny the General Counsel's motion to reopen the record and grant the Respondents' motion to strike 2 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 Cif conclusions only to the extent consistent with this Decision and Order The judge found that seven United Mine Work- ers Association (UMWA) members, each from a different local union and each an officer of his re- spective local, filed intraumon charges against Dowl Johnston because Johnston testified on behalf of his employer and against another union member at an arbitration hearing The judge fur- ther found that, assuming that the seven were acting as agents of their local unions, the Respond- ent Locals violated Section 8(b)(1)(A) of the Act through this action 3 He concluded, however, that the seven members were acting in their individual capacities when they signed the charges and that the locals accordingly did not violate the Act in any respect We disagree with the judge's conclu- sion that the seven members were not agents of their local unions in filing the charges, and there- fore find that the Respondent Locals violated Sec- tion 8(b)(1)(A) of the Act The seven signatories of the charges held elec- tive office in their local unions 4 Six of the seven testified that they were president of their locals, and one testified that he was a member of his local's Contract Committee and chairman of its Mine Committee The Mine Committee is responsi- ble for grievance handling and for administering and enforcing collective-bargaining agreements Presidency is the highest ranking position in each local All signatories were members of their local's executive board 5 The Board regularly finds elected or appointed officials of an organization to be agents of that or- ganization Although the holding of elective office 1951) We have carefully examined the record and find no basis for re- versing the findings 3 The Respondents filed no exceptions to the judge's findings with regard to the motivation of the signatones However, we note that the Respondents claim in their brief that the charges were filed not because Johnston testified against another union member, but because Johnston's testimony was evidence of and in furtherance of a plot between Johnston, another union member, and Beth Energy to get Moore, the subject of the arbitration, fired We agree with the judge's finding that, for each of the seven signing the charges, Johnston's testimony at the arbitration was a reason for the charges In this regard, the Respondents did not show that the charges would have been filed against Johnston even absent his arbi- tration testimony Accordingly, we find that the judge's conclusion that the charges, if filed by union agents, were unlawful is consistent with Wright Line, 251 NLRB 1083 (1980), enfd on other grounds 662 F 2d 899 (1st Car 1981), cert denied 455 US 989 (1982) See Auto Workers Local 2017 (Federal Mogul), 283 NLRB 799 (1987), Toledo World Terminals, 289 NLRB 670, 674 (1988) 4 Indeed, the letter bringing charges against Johnston specifically states "we, the following named members and officers, do hereby charge Dowl Johnston" a One signer, John Pennington, testified that he is the president of Local 1829 We note, however, that District 31 addressed Pennington as recording secretary of that local in a letter dated May 9, 1988 It is there- fore not clear whether Pennington was his local's president at the time he signed the intraumon charges In any event, recording secretary is also an elective local office and a member of the local's executive board 299 NLRB No 47 390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD does not mandate a finding of agency per se, it is persuasive and substantial evidence that will be de- cisive in the absence of compelling contrary evi- dence 6 We find no compelling contrary evidence here The judge recognized a number of factors sug- gesting that the signatories were agents of their re- spective locals Thus, he noted that the letter bringing the charges avers that the charges are being brought by union officers, that the aggrega- tion of seven officers suggests that the act of filing of internal union charges amounted to action by the local unions whereas the filing of charges by only one officer might not carry that implication, and that six of the seven signatories held the high- est ranking position in their locals He found these factors outweighed, however, by the following countervailing considerations any member may file intraumon charges, the charges do not indicate the local union position held by the signatories and are signed as "the undersigned Local Union Members of District 31", there is no evidence that the mem- bership of the local unions either authorized or ratified the action and several of the signatories tes- tified that they did not consult their constituents re- garding the action, and the charges involve actions by Johnston regarding matters associated with Beth Energy Mine #81 although none of the Respond- ent local unions of which the signatories were offi- cers have jurisdiction over that mine The judge particularly noted that, because the signatories' local unions had no direct connection with the dis- pute among Johnston, Moore, and Beth Energy, there was no reason for either the signatories or their locals to conclude that the signatories' acts of signing and filing the charges would be seen as ac- tions on behalf of the locals Although all the factors discussed by the judge are relevant to determining agency, we do not find that those factors compel overriding the persuasive and substantial evidence of agency derived from the signatories' holding of elective office within their locals These officers had apparent authority to act for their locals, and they were acting within the scope of that apparent authority 7 This is not a case where the officers were engaged in an activity unrelated to their union positions, for they them- selves stated that they were bringing the charges as members "and officers" The charges thus clearly invoke the official position and capacity of the sig- 8 Electrical Workers IBEW Local 453 (National Electrical), 258 NLRB 1427, 1428 (1981), Penn Yan Express, 274 NLRB 449 (1985) 7 Whether their members had actually authonzed the officers' actions is not determinative, for Sec 2(13) of the Act provides "In determining whether any person [acted] as an agent the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling" natories Further, both District 31 and the Interna- tional Union Trial Commission treated the charges as having been filed by the officers in their official positions as representatives of their Respondent locals The letters sent to each of the signatories with respect to the processing of the charges are addressed with the name, position, and respective local involved Accordingly, we find the mtraunion charges filed by the seven officers attributable to their respective locals and that the Respondent Locals violated Section 8(b)(1)(A) of the Act by bringing charges against Johnston because of his protected conduct testifying at the arbitration pro- ceeding We agree with the judge, however, that neither District 31 nor the International Union violated the Act by processing the charges, referring them, or holding hearings with respect to them, because no members of the District's executive board or the International Union Trial Commission knew or should have known that a basis of the charges against Johnston was his testimony at the arbitra- tion hearing The charges did not on their face refer to Johnston's testimony before the arbitrator, alleging instead that "Dowl Johnston did conspire and work with the management of Beth Energy's #81 mine in an attempt to have mine and safety committeeman of Local 2059, Benny Moore, re- moved from office and subsequently terminated from his employment "8 Further, the International Union Trial Commission was specifically requested not to consider Johnston's testimony before the ar- bitrator in as deliberations We therefore affirm the 8 In finding that District 31 officials did not know and should not have known that a basis of the charges was Johnston's protected conduct, the judge observed that the record does suggest that District 31's executive board member Stephen Webber knew that to be the case Yet he found that because Webber absented himself from the meeting at which the charges were considered by the executive board, and because Webber gained this knowledge from his personal relationship with Johnston and not from statements made by parties in the course of a union investiga- tion of the charges, Webber's "suggested" knowledge was not attributa- ble to District 31 We disavow the judge's implication that Webber's knowledge of the basis of the charges against Johnston would not be Im- puted to District 31 for those reasons We find, rather, that Webber did not know that the charges were based on Johnston's arbitration testimony Johnston testified that Webber told him in a telephone conversation predating the arbitration hearing that he, Webber, was calling at Distnct 31 President Eugene Claypole's request, and that if Johnston testified "the District and some local offi- cials, namely Shiflett and one of the local presidents, were going to file some charges against me" Webber demed that Claypole asked him to call Johnston and denied saying anything about charges being filed against Johnston Webber tesified that Johnston told him that he heard that if he testified the District was going to file charges against him, but Webber responded that he had not heard that and knew nothing about It Webber further testified that he had no knowledge that anybody was threatening Johnston with charges The judge credited Webber We do not find Johnston's suggestion to Webber, that the Distnct might file charges against him if he testified, establishes that Webber knew that the charges later filed by the Respondent Locals were based on Johnston's testifying at the arbitration heanng d, fi MINE WORKERS LOCAL 1058 (BETH ENERGY) 391 judge's dismissal of the complaint allegations as to District 31 and the International Union CONCLUSIONS OF LAW 1 By filing mtraumon charges against member Dowl Johnston because he testified at an arbitra- tion proceeding, the Respondents, United Mine Workers of America, Local 1058, Local 1501, Local 1570, Local 1829, Local 1938, Local 1949, and Local 9909, restrained and coerced Johnston in the exercise of the rights guaranteed him by Sec- tion 7 of the Act, and thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act 2 The General Counsel has failed to prove that United Mine Workers of America, District 31, and the International Union violated Section 8(b)(1)(A) of the Act REMEDY Having found that the Respondent Locals have engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act We shall require the Respondent Locals to notify District 31 and the International Union, United Mine Workers of America, that they are withdraw- ing the charges that they filed against Dowl John- ston, and to remove any records that they may have of the charges and notify Johnston in writing that this action has been taken We shall also order the Respondent Locals to make Johnston whole, with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987), for any losses he may have suffered by reason of the charges against him Any backpay that may be due shall be com- puted on a quarterly basis as prescribed in F W Woolworth Co, 90 NLRB 289 (1950) ORDER The National Labor Relations Board orders that the Respondents, United Mine Workers of Amer- ica, Local 1058, Local 1501, Local 1570, Local 1829, Local 1938, Local 1949, and Local 9909, their officers, agents, and representaives, shall 1 Cease and desist from (a) Filing mtraumon charges against members be- cause they testify at arbitration proceedings (b) In any like or related manner restraining or coercing members in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Immediately notify District 31 and the Inter- national Union, United Mine Workers of America, that they are withdrawing the charges filed against Dowl Johnston because of his having given testi- mony at an arbitration proceeding (b) Remove all records of the charges against Dowl Johnston and notify him in writing that this action has been taken (c) Make Dowl Johnston whole, with interest as provided in the remedy section of this decision, for any losses he may have suffered by reason of the charges against him (d) Post at their business offices and other places where notices to their members are customarily posted copies of the attached notice marked "Ap- pendix "9 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondents' authorized representa- tives, shall be posted by the Respondents immedi- ately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material (e) Sign and return to the Regional Director suf- ficient copies of the notice for posting by Beth Energy Corporation, if willing, at all places where notices to employees are customarily posted (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply IT IS FURTHER ORDERED that the complaint alle- gations with respect to District 31 and the Interna- tional Union are dismissed 9 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 APPENDIX NOTICE To EMPLOYEES 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 file mtraumon charges against members because they testify in arbitration pro- ceedings 392 • DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT 111 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 notify District 31 and the International Union, United Mine Workers of America, that we are withdrawing the charges filed against Dowl Johnston because of his having given testimony in an arbitration proceeding. WE WILL make Dowl Johnston whole, with in- terest, for any losses he may have suffered by reason of the charges against him. UNITED MINE WORKERS OF AMER- ICA, LOCAL 1058 UNITED MINE WORKERS OF AMER- ICA, LOCAL 1501 UNITED MINE WORKERS OF AMER- ICA, LOCAL 1570 UNITED MINE WORKERS OF AMER- ICA, LOCAL 1829 UNITED MINE WORKERS OF AMER- ICA, LOCAL 1938 UNITED MINE WORKERS OF AMER- ICA, LOCAL 1949 UNITED MINE WORKERS OF AMER- ICA, LOCAL 9909 Damon W. Harrison Jr., Esq., for the General Counsel. George Davies, Esq., of Washington, D.C., for United Mine Workers of America, International Union. Barbara Evans Fleischauer, Esq., of Fairmont, West Vir- ginia, for United Mine Workers of America, District 31. James Haviland, Esq. (McIntyre, Haviland & Jordan), of Charleston, West Virginia, for United Mine Workers of America, Local Unions 1058, 1501, 1570, 1829, 1938, 1949, 9909. DECISION STEPHEN J. GROSS, Administrative Law Judge. Dowl Johnston is a coal miner employed by Beth Energy Cor- poration in its 81 mine. Johnston is a member of UMWA Local 2059 and a member of the executive board of UMWA District 31. Persons holding elected positions in seven local unions in District 31 filed intraunion charges against Johnston. The constitution of the UMWA Inter- national Union (the International) provides that intraun- ion charges against members of a UMWA district's exec- utive board are to be heard by the district rather than by the member's local union. Thus the charges against John- ston came before District 31's executive board. But that executive board could not muster a quorum to hear the charges. District 31 accordingly referred the charges to the International which, in turn, appointed a trial com- mission of its executive board to hear the charges. The trial commission took evidence, but has not issued a deci- sion. According to the General Counsel: 1. The persons who filed the intraunion charges against Johnston were acting as agents of their respective locals, and they filed the charges because Johnston testi- fied against a fellow UMWA member at an arbitration hearing. The local unions thereby violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act). 2. Prior to the filing of charges, an agent of District 31, Stephen Webber, threatened Johnston that the Dis- trict would file internal union charges against Johnston if Johnston testified at an arbitration hearing. District 31 thereby violated Section 8(b)(1)(A). 3. District 31 violated Section 8(b)(1)(A) by processing the charges and by referring the charges to the Interna- tional's executive board. 4. The International violated Section 8(b)(1)(A) when its executive board processed the charges and when the trial commission processed and conducted a hearing on the charges.1 Background Dowl Johnston and his friend and coworker in mine 81, Dale Woodrum, had a running feud with follow member of Local 2059 and coworker Benny Moore. In January 1988 Johnston assisted Woodrum in filing in- . traunion charges against Moore. (All dates referred to occurred in 1988.) The charges alleged that Moore had embezzled union funds. The trial board dismissed the charges on February 29. The charges and trial were much talked about among miners in the area, and some came away thinking, rightly or wrongly, that Woodrum and Johnston had concocted the charges as a way of forcing Moore out of his office, chairman of Local 2059's safety committee. In the meantime, Woodrum and Johnston, on the one hand, and Moore, on the other, nearly came to blows. • According to an arbitrator's description of the incident (and I make no findings about the accuracy of that report), it began when Woodrum was taking a cigarette break in the mine's lamp house. The lamp house had. long been off limits for smoking because a tank of gaso- line had been stored there. But the tank had been re- moved. Moore saw Woodrum smoking, but didn't notice . that the gasoline tank was no longer there. Moore told Woodrum to put out his cigarette. Woodrum not only refused, he waved a lighted cigarette lighter around, all without mentioning that gasoline was no longer being stored in the lamp house. The result: a confrontation that produced streams of obscenities. Things calmed down. I Dowl Johnston filed unfair labor practice charges against the Re- spondent local unions and against District 31 on June 7, 1988, and against the International on September 19, 1988. A consolidated complaint issued on July 15, 1988, and was amended on October 28, 1988. The Respond- ents have stipulated that Johnston's employer, Beth Energy, is an em- ployer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the National Labor Relations Act (the Act), and that the Respondents are labor organizations within the meaning of the Act (see Tr. 9-10). I heard the case in Summersyille, West Virginia, on February 9 and 10. The General Counsel has filed a brief and the Respondents have filed a joint brief. (On March 21, 1989, the Respondents filed a motion for leave to substitute copies of joint brief. The motion is granted.) MINE WORKERS LOCAL 1058 (BETH ENERGY) 393 until Johnston arrived on the scene At that point more obscenities flowed and an afterwork fistfight was dis- cussed According to Johnston's testimony in this proceeding, Moore threatened to attack him in the mine (that is, without waiting to get off work), and that led Johnston to complain to Beth Energy's management, demanding that the Company do something about Moore The Company did, suspending Moore preparatory to firing him District 31, in response, filed a grievance The matter went to a hearing before the arbitrator on March 8 and 9 The Company called Johnston and Woodrum as witnesses, and both testified against Moore Even before the arbitration hearing began some UMWA members had developed the suspicion that Woodrum and Johnston had deliberately set up Moore— that Johnston and Woodrum knew that Moore would lose his temper in response to Woodrum's smoking in the lamp house and that Johnston and Woodrum did that, again, in order to force Moore out of the mme safety chairmanship (I emphasize that I am referring to beliefs only I make no finding about whether those beliefs were accurate ) The arbitrator issued his decision on March 20 Those who felt that Johnston and Woodrum set up Moore read the decision as confirming their position The decision concludes, in part, that 1 When Moore asked Woodrum to stop smoking, Moore was acting "in furtherance of his duties" as safety committee chairman 2 "The antagonistic, hostile, obscene, abusive, degrad- ing language occurred not only from the mouth of Moore, [but] occurred also from the mouth of Woodrum Woodrum was heard to say many of the obscenities" 3 The shouting match, "while started by Moore, was most seriously perpetrated by Woodrum who did [not] tell Moore of the removal of the drum, and Woodrum received no discipline whatsoever but Moore did" 4 As for the fracas between Johnston and Moore, "Johnston was the aggressor Johnston received no disci- pline whatsoever but Moore did Again, evenhanded treatment was not shown by the management of the mine" 5 "Woodrum and Johnston took advantage of a per- sonality trait of Moore's " (That is, Moore's problem in controlling his temper ) 6 Johnston and Woodrum "were at least as culpable as Moore They created the scene at the facility just as much as Moore did Because the company did not attempt to evenhandedly discipline all three, the dis- charge cannot stand" The arbitrator's decision became hot news throughout District 31 Then, on April 11, seven UMWA members, each from a different local union and each an officer of his respective local, signed mtraumon charges against Johnston The charges alleged that Johnston violated his oath as a UMWA member and officer in that Dowl Johnston did conspire and work with the management of Beth Energy's #81 mine in an atempt to have a mine and safety committeeman of Local 2089, Benny Moore, removed from office and subsequently terminated from his employment as Beth Energy Mine #81 The above violations and actions occurred in January 1988 and continued through March 9, 1988 2 Why the Persons Who Signed the Intraumon Charges Against Johnston did so " The charges were signed by Carlo Tarley, Charles Chefren, Larry Kmsell, John Pennington, James Shiflett, Allen Reeves, and Thomas Turpm To some extent their reasons for wanting to bring charges against Johnston varied But for each of them, Johnston's testimony at the arbitration hearing was a reason for the charges Carlo Tarley Tarley is president of UMWA Local 1501 Tarley drafted the charges because he believed that Johnston and Johnston's employer, Beth Energy, had conspired to rid themselves of Benny Moore Tarley assumed that Beth Energy would naturally want to get rid of Moore because Tarley believes that all mining companies dislike members of the union safety committee As for why Johnston wanted to have Moore fired, Tarley thought that was because Johnston disliked Moore and because he wanted the chairmanship of the mine safety commit- tee Tarley first became suspicious about Johnston in late February or early March That's when the mtraumon embezzlement case against Moore ended and when Tarley heard rumors that that case had begun when Beth Energy had secretly and imporperly let Johnston look at Moore's pay record Then, after the incident between Moore, Johnston, and Woodrum at the mine, Tarley heard another rumor that Johnston and Woodrum had deliberately staged the inci- dent knowing that Moore was easy to provoke and knowing that Moore had been advised that another out- burst would mean his discharge On top of that, in fur- therance of the conspiracy Johnston testified against Moore at the arbitration hearing The last straw was the arbitrator's decision As Tarley understood it, it supported what Tarley had heard about Johnston and Woodrum setting up Moore Tarley also felt that the decision supported his view that Beth Energy and Johnston were in cahoots After all, even though, according to the arbitrator, Johnston and Woodrum were at least as guilty as Moore, the Company chose to discipline only Moore, not Johnston or Woodrum Tarley thus concluded that the following events were all integral parts of the Johnston/Woodrum-Beth Energy conspiracy the embezzlement case against Moore (in- cluding Johnston's rumored secret examination of Moore's pay record), Woodrum's and Johnston's provo- cation of Moore, and Woodrum's and Johnston's testified 2 According to the charges, those alleged actions by Johnston violated Johnston's UMW A membership oath ("I promise to help all brothers in adversity"), the oath of office Johnston took when he became a member of District 31's executive board, and Johnston's constitutional "obligation to aid every other member" 394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against Moore at the arbitration hearing 3 And it is those events that Tarley had in mind when he drafted and signed the intraumon charges agamt Johnston (Tarley aimed his charges only at Johnston, not at Woodrum too, because Johnston was a union official, Woodrum was not ) Charles Chefren Chefren is president of UMWA Local 9909 Chefren's decision to file charges against Johnston stemmed almost entirely from Chefren's conversations with Tarley, and I accordingly conclude that Chefren's motives in signing the charges were the same as Tarley's James Shiflett Shiflett is president of UMWA Local 1938 Like Tarley, Shiflett had heard that Johnston "wanted the po- sition that Benny [Moore] held" and that Johnston had "drummed up" the embezzlement charges against Moore That led Shiflett, in early March, to inquire into the Moore discharge case and to conclude that Johnston and Woodrum were responsible for the incident that led to the Company's action against Moore Shiflett concluded that if Johnston testified against Moore, he would file in- traumon charges against Johnston In Shiflett's view, the arbitrator's decision confirmed that Johnston was "the aggressor" To Shiflett it was altogether impermissible for Johnston, who was a union officer sworn to protect the jobs of brother UMWA members, to have instigated an incident that led to the discharge of a fellow mine worker and then to have testified against him John Penmngton Penmngton testified that he is president of UMWA Local 1829 (There is some dispute about that, which will be touched on again below ) Pennington signed the charges against Johnston for two reasons One was that Johnston testified against Moore in circumstances in which the Company's case against Moore was based largely on Johnston's testimony The second was that, in Penmngton's view (which, in turn, stemmed from a con- versation that Pennington had with Moore) Johnston and Woodrum had instigated the incident that led to Beth Energy's action against Moore Under these circum- stances, Pennington "didn't feel that [Johnston] acted as a union officer and member" Thomas Turpm Turpin is president of UMWA Local 1058 Turpm had been on the UMWA trial board that considered the em- bezzlement charges against Moore and had become sus- picious there about Johnston's actions regarding Moore Then, when Turpm became involved in the grievance of Moore's discharge, Turpm's suspicions about Johnston deepened because Beth Energy's managers "based their sole case" on the testimony of Johnston and Woodrum 3 At a hearing of an International trial commission in August Tarley urged the commission not to take into account Johnston's testimony at the arbitration hearing But that was after Johnston had filed charges and a complaint had Issued As far as Turpin was concerned, the arbitrator's decision wrapped things up It showed, thought Turpm, that Johnston had "conspired" with the Company to get Moore discharged Turpm believed that Johnston's testi- mony was an integral part of that conspiracy Under the circumstances, Johnston's testimony amounted to a viola- tion of the UMWA contitution, thus warranting charges to be brought against Johnston Larry Kmsell Knisell is president of UMWA Local 1570 Kmsell, like Turpm, had been on the UMWA trial board that considered the embezzlement charges against Moore and had become suspicious there about Johnston's, actions re- garding Moore In part, because of his discussions with Turpm, when Knisell read the arbitrator's decision he concluded that "there was a conspiracy" between John- ston and Beth Energy Johnston's testimony as such was not actionable But, Kmsell believed, that testimony was part of a scheme by the Company and Johnston to get nd of Moore and was accordingly a violation of John- ston's oath as a member the UMWA Allen Reeves Reeves is chairman of Local 1949's mine committee After reading the arbitrator's decision and talking to Tarley, Reeves concluded that Johnston had "secretly and maliciously conspired against Benny Moore to get him discharged" "[T]hat's a very serious offens" under the UMWA constitution, and, Reeves believed, John- ston's testimony was in furtherance of that conspiracy Did the Local Unions Violate Section 8(b)(1)(A) The Protection Accorded Witnesses at Arbitration Hearings Assuming, for the moment that Tarley, Chefren, Kru- se% Pennington, Shiflett, Reeves, and Turpm were acting as agents of their local unions, then, in my view, the Respondent Locals violated Section 8(b)(1)(A) (I will hereafter refer to those seven persons as the signatO- nes ) The point is that a union may not discipline or even try a member for the member's participation in the grievance/arbitration process E g, Cement Workers D- 357 (Southwestern Portland Cement), 288 NLRB 1156 (1988) Yet for each of the signatories, Johnston's testi- mony was one of the acts that formed the bases for the charges The evidence shows that the signatories understood that mtraumon charges may not lawfully be filed against a fellow union member because he or she testified against another union member And, indeed, from the viewpoint of the signatories, that is not why they filed their charges Rather, as the signatories saw things, Johnston's testimony at the arbitration hearing was evidence of and in furtherance of a plot between Johnston, Woodrum, and Beth Energy to get Moore It was Johnston's partici- pation in that plot that was the reason for the charges I recognize the argument that the Board should not stand in the way of a union's effort to discipline one of MINE WORKERS LOCAL 1058 (BETH ENERGY) 395 its own officers who, some of its members honestly be- lieve, has subverted the arbitration process in order to gain his own ends at the expense of a union brother For the Board to do so, in fact, must seem to some to be al- together outrageous But it will always be possible, whenever a union member testifies at an arbitration hearing in a manner contrary to a union's position, for a union or any of its members to concoct an mtraunion charge alleging that the witness subverted the arbitration process for mali- cious reasons Thus to reasonably protect the arbitration process, the rule has to be that unions may in no way discipline a member, or put the member on trial, because of the member's testimony at an arbitration hearing, no matter what motive may be ascribed to that member See Teamsters Local 557 (Liberty Transfer), 218 NLRB 1117 (1975) The way for a union to test its belief about a wit- ness' false testimony before an arbitrator is by participat- ing in the arbitration hearing, not by prosecuting intraun- ion charges against the witness Did the Persons Who Signed the Charges do so as Agents of the Respondent Locals That brings us to the question of whether the signato- ries were acting as agents of their respective locals when they did so 4 Certainly there are some considerations that suggest that the signatories were agents within the meaning of the Act To begin with, the letter bringing charges against Johnston (G C Exh 3) begins Pursuant to Article 16 of the UMWA International constitution we, the following named members and officers, do hereby charge Dowl Johnston, a Subdistrict 4 Board Member of District 31, with the following violation [Emphasis added ] Second, six of the seven signatories were presidents of their local unions, and all seven were officers 5 It is fair to argue, it seems to me, that this aggregation of local union officers suggests that the act of filing internal union charges amounted to action by the local unions, even if the charges would have been deemed to have been filed by an individual in a nonrepresentative capac- ity had only one of the seven filed the charges Third, that fact that six of the seven signatories are presidents of their locals is significant in that the presi- dency is the highest ranking position in each of the locals On the other hand there are considerations pointing in the other direction First, any member of the UMWA may file intraumon charges No official position is required Thus the act of 4 According to par 6 of the complaint, the signatories filed internal union chargeA against Johnston "on behalf of" their local unions The sig- natories all deny that, claiming that they filed the charges in their indi- vidual capacities 5 As noted earlier, Reeves was chairman of his local's mine committee (in charge of processing grievances at their early stages) The record is not entirely clear about Penmngton's position But he did testify (at Tr 310) that he is president of his local filing intraumon charges, standing alone, says nothing about the involvement of a local union Second, and most importantly, when the signatories signed the charges, they did so only as "the undersigned Local Union Members of District 31 " The charges do not indicate the positions that the signatories held with their local unions In fact the charges do not even indi- cate the local union affiliation of any of the signatories Third, there is no evidence that the membership of the local unions, or any of their governing bodies (such as their executive committees), either authorized the signa- tones to sign or ratified the signatories' actions after the fact (In fact, there is 'affirmative evidence to the effect that there were no such authorizations or ratifications ) And fourth, the charges involve actions by Johnston regarding matters associated with Beth Energy Mine #81 None of the local unions of which the signatories are officers have jurisdiction over that mine, and neither Johnston nor Moore is a member of any of those locals Because of these circumstances, and because the signs- tones' local unions had no direct connection with the dispute between Johnston, Moore, and Beth Energy, there was no reason for either the signatories or , their locals to conclude that the signatories' acts of signing and filing the charges would be seen as actions on behalf of the locals See Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82 (1988) Mine Workers (Fletcher Mining), 271 NLRB 20, 23 (1984) My conclusion, therefore, is that the signatories were acting in their individual capacities when they signed the charges, not on behalf of their locals, and that, accord- ingly, the local unions did not violate the Act in any re- spect The Unions and the General Counsel each point to other facts that, they claim, amount to evidence relevant to whether the mtraunion charges were filed on behalf of the local unions But it doesn't seem to me that any of these additional matters make much difference, one way or another The additional evidence that comes closest to making a difference about local union involvement is testimony by General Counsel witness Walter Seabolt According to Seabolt, in early March, Shiflett (who later did sign the charges) said to Seabolt :`I can tell you one thing if Dowl Johnston and those men testified against Benny [Moore] in that arbitration my local and four and five other locals up here are going to bring charges against them" Seabolt was a convincing witness But Shiflett denied Seabolt's testimony And given how easy it would have been for Seabolt to have misheard Shiflett (who might have said, for instance, "people from my local and four or five others"), I am unwilling to credit Seabolt over Shiflett Moreover even if Seabolt's testimo- ny were wholly accurate (1) Shiflett's statement to Sea- bolt was in the course of a private telephone conversa- tion, and there is no evidence that Seabolt told others that Shiflett said that local unions were going to file charges against Johnston, (2) Shiflett made his remark a relatively long time (a month and a half) before the charges were filed, and (3) the context in which Shiflett 396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made his remarks was not one in which Shiflett was likely to have been focusing on precision of language 6 ' Did District 31 Violate Section 8(b)(1)(A) The General Counsel claims that District 31 violated Section 8(b)(1)(A) (1) when an officer of the Distnct told Johnston that the District would file charges against Johnston if Johnston testified against Moore, and (2) when District 31 processed the charges against Moore The Alleged Threat Eugene Claypole is the president of District 31 Ste- phen Webber is a member of District 31's executive board and is a fnend of Johnston's Johnston and Webber agree that Webber called Johnston a few days before the arbitration hearing and tried to talk Johnston out of testi- fying According to Johnston, Webber said that he was calling at Claypole's request, and that "if I did testify the Distnct and some local officials, namely Shiflett and one of the local presidents, were going to file some charges against me" Webber denied saying anything about charges being filed against Johnston, and Webber's demeanor was Just as credible as Johnston's Moreover I find it unlikely that Webber would have spoken about charges against John- ston being filed by the District (as opposed to charges being filed in the District) I accordingly will recommend the dismissal of the alle- gation that District 31 threatened to file charges against Johnston District 31's Processing of the Charges Against Johnston In early May, District 31's secretary-treasurer, John Darcus, received the charges against Johnston Darcus sent the charges on to Claypole (District 31's president) Claypole, in turn, wrote to Johnston and the signatories, advising that the charges against Johnston would be heard by the District's executive board on June 2 Johnston did not show up for the June 2 meeting of the executive board And as it turned out, District 31 did not hold any hearings on the matter What happened was that of the executive board's 14 members, 8 were absent Among those absent Webber—who had urged Johnston not to testify And of the six members present, four dis- qualified themselves That left only two board members to hear the charges Under the International's constitu- tion, "[i]f less than three members of the District Execu- tive Board remain after disqualification, the case shall be tried by three members of the International Executive Board " District 31 accordmgly referred the charges to the International's executive board 6 Other points raised by the parties the relatively limited scope of au- thority of local union presidents, the fact that the UMWA's constitution does not authorize local union to file mtraumon charges, many of the dis- cussions between the signatories concerning the charges took place at union functions and, sometimes, while the signatory was on official UMWA business, and communications by District 31 and International officials suggest that those officials may have thought that the signatones filed the charges in their official capacities I don't think that adds up to a violation of the Act by District 31 The question is when, if ever, "it became clear" to agents of District 31 that the charges were based on Johnston's testimony before the arbitration Cement Workers D-357 (Southwestern Portland Cement), 288 NLRB 1156, 1157 (1988) As will be recalled, on their face, the charges do not refer to Johnston's testimony before the arbitrator (The heart of the charges is that Johnston "did conspire and work with the management of Beth Energy's #81 mine in an attempt to have mine and safety committeemen Benny Moore removed from office ft) Moreover, unlike cases such as Cement Workers D-357, the charges do not "center" on conduct that is protected by the Act The signatories were at least as concerned with Johnston's responsibility for the abortive embezzle- ment case against Moore and with Johnston's role in the lamp house incident as they were with Johnston's testi- mony before the arbitrator Finally, the record fails to show that either Darcus or Claypole ever "knew or should have known" that a basis of the charges was Johnston's protected activity (Id)) The record does suggest that executive board member Webber knew that to be the case But Webber absented himself from the meeting at which the charges were con- sidered In addition, unlike the situation in Cement Work- ers D-357, Webber gamed his knowledge of the charges from his personal relationships, not from statements made by the parties in the course of the union's investi- gation into the charges In sum, I find that no member of the executive board of District 31 had any appropriate basis for concluding that the charges against Johnston were founded on John- ston's testimony before an arbitrator That being the case, I conclude that the District did not violate the Act when it processed the charges or when it referred them to the International The Processing of the Charges by the International In late June the International's executive board, in ac- cordance with the UMWA's constitution, selected three board members as a "trial commission" to hear the charges that had been referred to the International by District 31 (Selections were by lot ) The International thereupon advised Johnston and the signatories that the trial commission would hear onthe charges on August 2 The commission did hold that hearing The signatories were there Johnston was not Tarley presented the case for the signatones The record here tells us very little about what argu- ments and evience Tarley presented at the hearing before the trial commission It is reasonably clear that at that hearing the members of the trial commission must have learned that the only possibly relevant activity by John- ston on March 9 (a date referred to in the charges) was his testimony at the arbitration hearing On the other hand, there is uncontroverted testimony here that Tarley asked that the commission not consider Johnston's testi- mony before the arbitrator (At Tarley's request, both the arbitrator's decision and the transcript of the arbitra- MINE WORKERS LOCAL 1058 (BETH ENERGY) 397 tion hearing were made part of the trial commission's record But both Tarley and the members of the commis- sion could have used those documents for purposes other than scrutinizing Johnston's testimony at the arbitration hearing ) All things considered, I am unable to find that the members of the International's trial commission should have known that a basis of the charges against Johnston was his testimony at the arbitration hearing That being the case, I will recommend that the complaint's allega- tions against the International be dismissed [Recommended Order omitted from publication ] \,