Coal Producers' Association of Illinois

National Labor Relations Board - Board Decisions

Jun 13, 1967

165 N.L.R.B. 337 (N.L.R.B. 1967)

COAL PRODUCERS ASSN. OF ILL.
Coal Producers ' Association of Illinois and
Dorman E. Glass, Charging Party.
Progressive Mine Workers of America,
District No. 1 (Coal Producers ' Association
of Illinois ) and Dorman E. Glass, Charging
Party.
Coal Producers ' Association of Illinois and
Jesse Higgins, Charging Party.
Progressive Mine Workers of America,
District No. 1 (Coal Producers ' Association
of Illinois ) and Jesse Higgins, Charging
Party, and W. C. Gill and Dan Villa , Parties
in Interest . Cases 14-CA-3802, 14-CB-1332,
14-CA-3819, and 14'-CB-1351.
June 13,1967
DECISION AND ORDER
On July 6, 1966, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and
were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel and the Respondents filed
exceptions to the Decision and supporting briefs.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
The complaint alleged that the maintenance of a
plan under which members of the Respondent
Association provide a welfare and retirement fund
for employees or employee relatives, and which
requires employee membership, in the Progressive
Mine Workers of America (PMW) as a condition of
eligibility for benefits, is unlawful under Section
8(a)(3), (2), and (1) and 8(b)(2) and (1)(A) of the Act. It
also alleged as violations of the same section the
withholding from four employees of accelerated
retirement benefits they had earned prior to the
abandonment of the mine in which they worked, as
well as the prospective forfeiture of funds already
allocated from wages for the purpose of future
benefits in the case of three other employees who
voluntarily quit mines which were covered by the
plan and immediately commenced working at mines
represented by the United Mine Workers of America
(UMW). It was also alleged that these seven
employees were denied benefits and/or subjected to
forfeiture of fund allocations because they were not
members of PMW.
337
The Trial Examiner found that the Respondents
violated Section 8(a)(1) and 8(b)(1)(A) because they
were parties to the plan and enforced its provisions
requiring employees to maintain their membership
in the Union after termination of the employment
relationship covered by the contract in order to be
eligible to receive welfare and retirement benefits;
he further found that the Respondent Association
also violated Section 8(a)(2) by contributing support
to the Respondent Union thereby. The Trial
Examiner reasoned that the provisions of the plan
which require employees not only to forgo part of the
compensation for present work but also to maintain
membership in the Union in order to secure benefits
provided by such compensation, constitute
conditions of employment inconsistent with the
basic freedoms of the Act as expressed in Section 7
and Section 8(a)(3). With respect to the allegation
that the same conduct also constitutes violations of
Section 8(a)(3) and 8(b)(2), the Trial Examiner found
it unnecessary to pass upon these issues inasmuch
as his proposed remedy included a make-whole
order which would fully effectuate the policies of the
Act in his view. The Trial Examiner also found that
the temporary withholding from the four individuals
of accelerated retirement benefits provided by the
plan violated Section 8(a)(1) and (2) and 8(b)(1)(A) of
the Act, but did not pass upon the additional alleged
violations of Section 8(a)(3) and 8(b)(2) in this
connection. As to the three employees who quit and
immediately went to work in a UMW mine, the Trial
Examiner made no finding of violation, particularly
in view of the inchoate nature of the alleged
violations against these individuals, but also noting
that his remedy to cease giving effect to the
provisions of the plan which condition the granting
of benefits upon the maintenance of membership in
the Union after the employment relationship has
ceased would be sufficient to prevent future
forfeitures.
As appears from the Trial Examiner's Decision,
the plan itself has been perpetuated under
collective-bargaining agreements between the
Association and the Union. These agreements have
contained union -security clauses requiring
membership as a condition of employment. No
question is raised as to the validity of the
membership requirement under the bargaining
agreements during the period of employment at a
mine of an association member. Pursuant to that
requirement all employees are members. The plan,
in turn , provides for maintenance of membership as
a condition for sharing in its benefits. In view of
these underlying valid union-security provisions, the
problem here is not one of restriction of benefits to
member employees such as occurs in the absence of
a valid union-security provision.'
' Cf. Carty Heating Corp , etc., 117 NLRB 1417, Progressive
Kitchen Equipment Co , Inc , 123 NLRB 992
165 NLRB No. 31
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union contends that the dues required to
maintain union membership during periods which an
employee is not working at a mine within the
bargaining unit are actually in the nature of a service
fee for the handling of benefits payable pursuant to
the plan, and justifiable as such. It urges that the
dues scale, which reflects work status in the
industry, is indicative of a service arrangement.
Employees working in mines covered by the plan
pay 75 cents monthly dues, plus 2 percent of their
gross earnings , while members working outside the
coal industry pay $1.45 monthly, and retired,
disabled, or other employees eligible for benefits pay
1 percent of the benefits being received from the
plan, with $1 monthly being the minimum. Thus
employees no longer working in the unit are
expected to bear substantially less financial liability
to the Union.
We find merit in the Union's analysis of its dues
structure as applied to those not working in the unit,
and conclude that such payments can, as revealed
by this record, be considered to be a service fee.
Fees for job-referral services by a union have been
approved by the Board and the courts.2 Other
similar charges by unions have received tacit
approval, subject to appropriate safeguards.3 An
important proviso running through the service
charge concept has been that such fees be
reasonably related to the value of the services
rendered by the union . The services rendered here,
as we view them, tend to make the fees set forth
above seem reasonable. The services rendered
include the Union's assistance in perpetuating the
plan itself as well as its sustaining fund through
periodic bargaining negotiations . The Union has
done this in successive agreements since
establishment of the plan in 1946. A determination of
the specific amount of the per ton contribution to the
fund to be made by operator members during the life
of each bargaining contract is part of the periodic
bargaining . For example, the 1965 contract
increased this sum from 30 to 40 cents per ton. It
also appears that the Union renegotiates various
provisions of the plan during bargaining with a view
to improving the plan. Thus the Union, in its
bargaining, is called upon to represent the interests
not only of employees currently engaged in mining
coal, with respect to their wages, hours, and other
terms and conditions of employment, but also the
interests of eligible participants in the plan who are
no longer mining coal. These eligible participants
have an economic interest in the perpetuation of a
plan of this sort and the fund which makes it
possible. In view of this interest , we do not believe it
unreasonable that the Union require employees
' Local 825, Operating Engineers (H John Homan Company),
137 NLRB 1043, Local 138, Operating Engineers (J J. Hagerty,
Inc) v N L.R B, 321 F 2d 130 (C A 2), N L R B. v Houston
Maritime Association , 337 F 2d 337 (C A 5)
covered by the plan to continue making payments,
varying according to their employment status and
income, to support the Union and its efforts on their
behalf with respect to the plan. It seems to us that
the Union's endeavors in this connection are a
valuable service to employees no longer working in
the unit, much as a job referral is to prospective
employees.
In reaching the conclusion that the Union is
entitled to charge a fee to employees who no longer
work in the unit who desire to participate in the
plan's benefits, we wish to emphasize that we do not
reach the further question whether employees are in
fact required, pursuant to the plan, to maintain their
membership in the Union, or may have their
membership forfeited in a manner which would be
violative of Section 8(a)(3) of the Act. The Trial
Examiner considered this further issue cumulative
because of the scope of his proposed remedial order,
and so did not reach it. Our reason for not reaching it
is that-apart from references in the plan itself
which tend to suggest the possibility that such
discrimination may occur-the record furnishes no
adequate proof to establish that the eligibility status
of individuals covered by the plan has been forfeited
for any reason other than failure to make periodic
payments to the Union. At the hearing the parties
stipulated that the seven alleged discriminatees
made no attempt to keep up their union dues after
ceasing to work at mines represented by the Union.
There is some evidence, it is true, that the fund's
secretary advised the four alleged discriminatees
that their union membership must be kept up for
eligibility, and then, in August 1965, was disposed to
deny accelerated retirement benefits to the four on
the stated ground of "automatic" loss of
membership on the date of employment at the Will
Scarlett mine, a mine whose employees are
represented by the UMW, but, as found by the Trial
Examiner, this position was reversed and the
benefits claimed were actually paid in January 1966.
Thus the record reveals no loss of benefits by these
four. The Trial Examiner found the temporary
withholding of the benefits to be a violation, but
reviewing the record as a whole we are not disposed
to base a finding on this isolated occurrence even
though in some circumstances we might find it
necessary to do so and ban a recurrence by remedial
order. The evidence as to possible loss or detriment
to the remaining three alleged discriminatees
involves only an anticipated cancellation of
individual allocations pursuant to the plan, no actual
loss of rights or benefits being established.
Accordingly, on the record before us, we find no
sufficient support for concluding that by being
' See Luggage Workers Union Local 60 (Rexbilt Leather Goods,
Inc , et al), 148 NLRB 396, charge for delivering vacation checks,
Coca-Cola Bottling Corporation, 153 NLRB 1425, charge for
processing a seniority grievance
COAL PRODUCERS ASSN. OF ILL.
parties to and operating this plan the Respondent
Union and the Respondent Association have
deprived employees of rights guaranteed by Sections
7 and 8(a)(3) of the Act.4 In view of our conclusion
that the postemployment payments required by the
Union, and which are tailored to changing work
status, are appropriate as a service charge, and in
view of the absence of proof that individual
discrimination has occurred in the administration of
the plan, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
a Member Fanning, with respect to the four alleged
discriminatees, is persuaded to the contrary because of the
August 31, 1965, letter, which is in evidence, advising them that
they "automatically gave up" membership in the Union on the
date they were employed at the Scarlett mine where, in fact, the
employees were represented by the UMW Because of this
evidence lie would find that the plan was applied in the case of
these employees to encourage membership in the Progressive
Mine Workers, in violation of Section 8(a)(3) and 8(b)(2)
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case was heard
at St. Louis, Missouri, on April 18, 1966, pursuant to
charges filed on September 28 and November 8 and 20,
1965, and a third amended complaint issued on March 22,
1966. Said complaint, as subsequently amended at the
hearing, raises questions concerning the legality of certain
provisions in effect in the collective-bargaining contract
between the Respondent Coal Producers' Association
(herein called the Association) and the Respondent
Progressive Mine Workers of America, District No.1
(herein called the Union) which allegedly restrict the
benefits of the welfare and retirement fund provided for in
the contract to employees who have continuously
maintained their membership in the Union, regardless of
whether employed in a mine covered by the contract or
not, and concerning the alleged refusal of the cotrustees of
the retirement fund to pay benefits to four employees who
were terminated as a result of the abandonment of the
Walnut Grove Mine which was operated by a member of
the Association. The conduct of the Respondent
Association is alleged to violate Section 8(a)(1), (2), and (3)
of the Act, and the conduct of the Union is alleged to
violate Section 8(b)(2), and (1)(A) of the Act. After the close
of the hearing the General Counsel and the Respondent
filed briefs which have been fully considered.'
Upon the entire record, including my observation of the
witnesses, I make the following:
I After the close of the hearing, the parties submitted a
stipulation on agreed corrections to transcript of record which is
FINDINGS AND CONCLUSIONS
339
1. THE BUSINESS OF THE RESPONDENT ASSOCIATION AND
ITS MEMBERS
The Association is an organization of coal mine
operators, including, as of the time of the events involved
in this case, Sahara Coal Corporation, Little Dog Coal
Company, Youngs Coal Corporation, and the Pioneer
Collieries. The Association acts as the authorized agent of
its members for the purpose of bargaining collectively with
the Union with respect to the wages, hours, and other
terms and conditions of employment of its members. Little
Dog Coal Company annually purchases from out-of-State
sources goods and materials used in its mining operations
which are valued in excess of $50,000. Upon these facts I
find, as the Association admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Progressive Mine Workers of America,
District No. 1, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introductory Statement
As indicated above, the complaint as amended herein,
challenges not only certain conduct of the cotrustees of the
welfare and retirement fund in administering the fund but
also certain basic provisions of the plan underlying the
administration of the fund.
The welfare and retirement fund was established by the
Association and the Union in 1946 in a collective-
bargaining contract entered into on June 12 and a separate
trust agreement which was executed on July 25.
The trust agreement provided for the establishment of a
joint state executive board, consisting of eight members,
four chosen by the Association and four by the Union, and
for the selection of two cotrustees, one chosen by the
Union and one chosen by the Association. The joint state
executive board was charged with the responsibility of
overseeing the acts of the cotrustees in setting up and
administering the proposed plan of benefits.
The June 12, 1946, contract provides as follows:
Said Fund shall be used for the purpose, and shall
be administered as hereinafter provided:... The two
trustees so selected shall be responsible to the Joint
State Executive Board for all their acts, and shall
submit to the Joint State Executive Board for its
approval a plan to provide for using this fund for
making payments to employees of the Operator-
members of the Coal Producers Association of Illinois
who are members of the Progressive Mine Workers of
America, with respect to sickness, permanent
disability, life insurance, death, hospitalization for
members and their dependents, retirement fund to be
established as of June 1, 1946, in an amount to be
later determined, (2) and other related welfare
purposes as determined by the trustees and approved
by the Joint State Executive Board. All acts of the
approved The record is hereby corrected in accordance with the
stipulation
340 DECISIONS OF NATIONAL
trustees in setting up various plans shall be consistent
with Federal and State Laws.
The cotrustees duly established the welfare and
retirement fund and a plan for administering the benefits
to be paid for out of the fund. The successive collective-
bargaining contracts between the Association and the
Union have provided for the continuance of the fund,
which is supported by a fixed price per ton of coal mined
paid solely by the operator-members of the Association. In
the first agreement 5 cents per ton was the agreed operator
contribution to the fund. The current contract, which calls
for the payment of 40 cents for each ton of coal mined by
the operator, has been adjusted by agreement between the
parties to require the payment of 20 cents per ton.
The collective-bargaining contracts between the
Association and the Union have for some time provided as
follows:
... As a condition of employment all employees
covered by this contract shall be, or shall become
members of the Progressive Mine Workers of
America, District No. 1, to the extent and in the
manner permitted by law.
Under the successive contracts, only supervisors and
office and clerical employees are excluded from coverage.
The General Counsel does not raise any question in this
proceeding about the validity of the above-quoted union-
security provision. These successive contracts have
further provided that beneficiaries of the fund shall have
no vested right therein.
The parties in interest, W. C. Gill and Dan Villa, are the
cotrustees for the Association and the Union, respectively,
currently charged with the administration of the fund. Gill
has been a cotrustee for the Association since the
inception of the fund.
The basic document now in effect setting forth the
scheme of operation of the welfare and retirement fund is
known as plan 7, which was adopted by the cotrustees on
January 19, 1955, and approved by the joint state
executive board on February 1, 1955. In the ensuing years
plan 7 has been amended many times. In 1958 special
allocation plans for the individual mines were adopted by
the cotrustees and approved by the joint state executive
board in order to prevent the depletion of retirement funds
to the detriment of the younger miners. Under these plans,
miners at the individual mines were allocated, in a
bookkeeping transaction, specific portions of the
payments by their employer to the fund, and these
allocated portions could not be used to pay benefits to
other miners.
In 1960 amendment 21 to plan 7 was adopted by the
cotrustees and approved by the joint state executive
board. It is set forth below:
Amend PART I, GENERAL PROVISIONS, by
adding the following as a new section:
"Section 45. Union Membership. Although this
Plan of Benefits and any Resolutions and Special
Allocation Plans adopted pursuant to the
provisions of this Plan require Union
membership as a pre-requisite to eligibility, all
employees hired by the employer, doing contract
work, who would be required to become Union
members after the statutory period provided in
Federal and State laws, shall be considered for
all purposes mentioned herein as Union members
during such period, provided they meet all other
eligibility requirements."
On October 27, 1965, amendment 38 to plan 7 was
LABOR RELATIONS BOARD
adopted by the cotrustees and approved by the joint state
executive board. It is as follows:
Amend PART I, GENERAL PROVISIONS, by
adding the following new paragraph to Section 45.
Union Membership.
This amendment was adopted after Dorman E.
Glass had, on September 30, 1965, filed a charge
with the Board's St. Louis Regional Office on
behalf of himself, Chester Moore, Paul B.
Russell, and James Shepherd alleging that the
Union had caused the Association to refuse to
pay each of them accelerated retirement benefits
from June 30 until August 20, 1965, thereby
violating Section 8(b)(1)(A) and (2) of the Act.
Glass subsequently, on November 8, 1965, filed a
charge against the Association alleging that it
had unlawfully supported the Union and had
discriminated against himself and the other men
in violation of Section 8(a)(1), (2), and (3) of the
Act.
In view of the evidence regarding the establishment of
the fund, the duties of the cotrustees, and their
relationship to the joint state executive board, I find that
the cotrustees are and have been acting as agents of both
the Association and the Union.
In the discussion which follows, the various provisions
now in effect of plan 7, the amendments thereto, and of the
special allocation plans for the individual mines, which
have been adopted by the cotrustees to prescribe the
manner and conditions under which benefits are to be
provided out of the fund, are collectively referred to as the
plan.
B. The Alleged Illegal Provisions of the Plan
Plan 7, the basic charter of the plan, provides as follows
with respect to retirement:
PART II
RETIREMENT PENSIONS
Section 2. ELIGIBILITY REQUIREMENTS
A member-employee, on a mine by mine basis, who
meets the following eligibility requirements, may
participate in the Retirement Pension funds allocated
to the mine from which he retires, provided:
(7) He is a member and remains in good standing in
a Local Union of the Progressive Mine Workers of
America, District No. 1;
* * * * *
Section 4. INTERRUPTION OF WORK RECORD
* * * *
D. ABANDONMENT
* * * *
*
*
6. In order to share in such benefits, however, a
member-employee under retirement age must try to
remain in the coal industry by seeking other
employment, and shall keep up his membership in the
Union.
* * * *
Section 6 . ACTUAL RETIREMENT-
REEMPLOYMENT
A. An employee must actually retire. Retirement
COAL PRODUCERS ASSN. OF ILL.
shall be on a voluntary basis, but an individual shall
not be eligible to participate unless he actually retires
from the coal industry In the event such member-
employee shall return to the coal industry after such
retirement, or payments to him shall be suspended,
then he shall not be entitled to retirement unless he
again meets the eligibility requirements for
Retirement Pension upon submitting a new
application and upon his again actually retiring.
The above-basic retirement provisions have been
supplemented by the provisions of the special allocation
plans in effect for the various mines. Typical standard
provisions of such special allocation plans are the
following which are taken from the plan for the Walnut
Grove Mine of Youngs Coal Corporation:
Sec. 8. Abandonment of Mine-In the event of the
abandonment of said mine, any special plan adopted
for said mine, as provided in Plan No. 7, may provide
for different methods of payment between men on the
Retirement-Pension Roll, men on the Disability
Assistance Roll, others upon rolls, and men who may
be then without employment, as circumstances may
warrant, provided:
(a) Such plan shall protect the allocated funds
of each individual so long as eligibility
requirements are met.
(b) No member-employee who does not have a
one year work record prior to the date of
abandonment shall have any right to any of said
funds. However, any member-employee who has
worked at said mine for one year or longer prior
to the date of abandonment shall be declared
eligible for retirement-pension irregardless of
eligibility requirements such as age, work record,
etc. to be paid upon application of such member-
employee, at the rate of not to exceed $250.00 per
month, to be paid from his allocated funds only.
The Co-Trustees shall adopt a resolution fixing
the amount to be paid to each individual
member-employee, not exceeding $250.00 per
month, but each employee shall be paid the same
amount as provided in said resolution.
(c) In the event such member-employee shall
again take up employment at a contributing
mine, then payments to him shall be suspended,
and if such mine has an allocation plan in effect,
then any funds to his credit at such time shall be
transferred to his allocated funds at such other
mine and his eligibility shall be determined by
the Plan in effect at such mine. In the event such
mine does not have an allocation plan in effect,
then such moneys allocated to him shall not be
transferred, but shall be held in his accounts
until he is eligible to receive payment thereof in
accordance with the plan in effect at such other
mine, and then shall be paid to him in addition to
any moneys which he may receive at such other
mine. However, he shall not receive any work
credits at such other mine for work performed at
this mine.
* * * * *
Sec. 9. Voluntary Quitting, Discharge and Lay-off
(a) In the event any member-employee quits
his employment, either voluntarily or
involuntarily, or is discharged, or is laid off, or
quits his employment upon proper proof that he
341
is physically unable to carry on with his duties in
the coal industry, even though he may not be
totally and permanently disabled as provided
under PART III, B. Disability Assistance, and
gives up his job right at said mine , no further
allocation shall be made to his accounts other
than for any proportionate allocation for months
worked during the preceding calendar year on
the first allocation made thereafter. If, at such
time, he does not have a one year work record he
shall not have any right to any of said funds.
However, if he has a one year work record or
longer, he shall then be declared to be eligible for
Retirement-Pension irregardless of eligibility
requirements such as age, work records, etc., to
be paid upon application of such member-
employee at the rate of $100.00 per month, to be
paid from his allocated funds only.
(b) No further allocation shall be made to his
funds, except at the discretion of the Co-Trustees
interest may be allocated.
(c) In the event such member-employee shall
again take up employment at a contributing
mine, then payments to him shall be suspended,
and if such mine has an allocation plan in effect,
then any funds to his credit at such time shall be
transferred to his allocated funds at such other
mine and his eligibility shall be determined by
the plan in effect at such mine. In the event such
mine does not have an allocation plan in effect,
then such moneys allocated to him shall not be
transferred, but shall be held in his accounts
until he is eligible to receive payment thereof in
accordance with the plan in effect at such other
mine, and shall then be paid to him in addition to
any moneys which he may receive at such other
mine. However, he shall not receive any work
credits at such other mine for work performed at
this mine.
(g) All of the foregoing is with the
understanding that a member-employee, or a
member if no longer employed, must
continuously remain a member in good standing
of a Local Union affiliated with District No. 1,
Progressive Mine Workers of America. Dropping
of such membership shall automatically forfeit
any funds then allocated or the right to any future
allocation, and reinstatements to membership
thereafter shall not reinstate any allocated
moneys thus forfeited, unless proof is made that
such dropping was in error and such member is
reinstated in accordance with the constitution of
the Union.
Cotrustee Gill testified that the forfeitures of allocated
funds are made on a mine-by-mine basis 1 year after the
end of the fiscal year for the particular mine involved in
which the employee last had allocations made to his
account. The end of the fiscal year is also referred to in the
record as the allocation date. The allocation dates for the
various mines are staggered throughout the year to ease
the workload of the office of the cotrustees. This 1 year
period is allowed to enable the cotrustees to correct any
error in determining the membership status of any
employee, as cotrustee Gill testified.
The welfare provisions of plan 7 (part III) similarly
condition eligibility for benefits upon continued union
299-352 0-70-23
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership after the beneficiary's employment status at
a contributing mine has ceased. Section 2, B. of part A,
which is headed "Eligibility for dismemberment benefits
and medical care benefits" states that eligibility for
benefits "shall terminate as of the date and time a
member-employee ... terminates his membership in the
Union." Likewise, the eligibility of a member-employee
who becomes totally and permanently disabled to continue
to receive benefits is subject to the following proviso:
"3. He is a member in good standing at the time of his
disablement and remains a member in good standing of a
Local Union of the Progressive Mine Workers of America,
District No. 1" (plan 7, part III, paragraph B sec. 3, B, 3).
Paragraph D of part III of plan 7 deals with death and
dismemberment benefits. Section 5 thereof provides
coverage for members of Armed Forces and dependents of
"men who die while in the armed forces of the United
States . provided: B. [He] was a member in good
standing of a Local Union of Progressive Mine Workers of
America, District No. 1, at the time of his death."
Paragraph E of part III, entitled "Medical Care Plan"
provides in section 3 for "Coverage for Dependents of Men
in Armed Forces," if "1. Such member-employee has
retained his membership in the Union by proper
application to the Union during his military service."
Under the provisions of the plan above quoted, which
are typical of the provisions challenged by the General
Counsel, all employees, from the time of their first
employment at a mine covered by the plan are required
continuously thereafter to maintain membership in the
Union as a condition of being entitled to receive the
benefits which they have earned as a result of working
under the plan, including retirement benefits payable after
the employment relationship has ceased This involves the
maintenance of membership during periods of
unemployment due to the abandonment of a mine, due to
the employee's layoff, discharge, or voluntary quitting, and
also during periods of employment anywhere else but in a
contributing mine. Failing to maintain membership after
ceasing employment in a contributing mine results in the
ultimate forfeiture of all moneys allocated to the miners'
individual accounts. Miners who leave a contributing mine
but who maintain their membership in good standing in
the Union do not forfeit the moneys allocated to their
account, and are able to draw on such funds, when
eligible, after again taking up employment in a
contributing mine.
C. Conclusions Concerning the Legality of the Challenged
Provisions of the Plan
Under the plan of benefits provided for in the contracts
between the Association and the Union, the employees
covered by the plan received a portion of their
compensation for present work in the form of deferred
benefits to become available after the employment
relationship covered by the contract has ceased, for
example, either as a result of retirement or disablement or
because of the employees' voluntarily quitting and taking
employment elsewhere. The challenged provisions require
all miners covered by the contract in effect to forego part
of their compensation for their present work unless they
agree to maintain membership in the Union even after the
employment relationship covered by the contract has
become terminated. Such a term or condition of
employment, in my opinion, is inconsistent with basic
freedoms which the Act guarantees.
Basic objectives of the Act are the protection of
employees' freedom of choice of bargaining
representatives and the prevention of discrimination in
regard to terms and conditions of employment to
encourage or discourage union membership. Section 7 of
the Act is as follows-
Employees shall have the right to self-organization,
to form, join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right
to refrain from any or all of such activities except to
the extent that such right may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3).
Section 8(a)(3) of the Act provides that it shall be an
unfair labor practice for an employer-
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any labor
organization: Provided, That nothing in this Act, or in
any other statute of the United States, shall preclude
an employer from making an agreement with a labor
organization (not established, maintained, or assisted
by any action defined in section 8(a) of this Act as an
unfair labor practice) to require as a condition of
employment membership therein on or after the
thirtieth day following the beginning of such
employment or the effective date of such agreement,
whichever is the later....
The only case in which an exception is made to the
policy of the Act of assuring employees a free choice of
representatives is that set forth in the proviso to Section
8(a)(3) of the Act quoted above. This is the one situation
where compulsory unionism is permitted. To fall within
the exception the terms of the proviso must be strictly
observed. While the proviso allows employees to be
compelled to join a union under the circumstances therein
set forth as a condition of employment, i.e., as an
indispensable requirement of retaining their jobs, it does
not sanction the imposition upon employees, as a term of
their employment, the requirement that they maintain
membership in the Union in the future, after the
employment relationship covered by the contract has
ceased, or forego part of their compensation for work
performed. Hence the provisions here in question are
outside the scope of the proviso and must fall. As indicated
above, such provisions are completely antithetical to the
basic objectives of the Act of protecting employees from
interference with their free choice of representatives and
preventing the encouragement or discouragement of union
membership by prounion or antiunion discrimination.
It has been repeatedly held that employers and unions
may not condition present employment upon an
employee's failure to maintain membership in good
standing in a union before the employment relationship
covered by a union-security provision began. See N.L.R.B.
v. Murphy's Motor Freight, Inc., 231 F.2d 654 (C.A. 3);
N.L.R.B. v. Spector Freight System, Inc., et al., 273 F.2d
272 (C.A. 8); Local Union No. 1842, International
Brotherhood of Electrical Workers (Avco Mfg. Corp.), 124
NLRB 794, enfd. 283 F.2d 112 (C.A. 6); N.L.R.B. v.
International Association of Machinists, Aeronautical
Lodge 727 (Menasco Mfg. Co.), 279 F.2d 761 (C.A. 9);
N.L.R.B. v. International Union, UAW (John I. Paulding,
Inc.), 297 F.2d 274 (C.A. 1). While these decisions are not
strictly in point, they reflect the concern of the Board and
COAL PRODUCERS ASSN. OF ILL.
the courts for the basic principles discussed above which,
in my view, call for the conclusion that the Act no more
permits a union to condition present employment upon the
maintenance of membership after the employment
relationship has ceased, than it allows the conditioning of
present employment on membership before the
employment relationship has begun.
While the language of the decisions of the district courts
in Upholsterers International Union v. Leathercraft
Furniture Co., 82 F. Supp. 570 (E.D. Pa.), and the other
cases relied upon by the Association and the Union
appears to lend support for their position in this case, in
none of these cases were the courts faced with the narrow
question here involved and in none of these cases did the
courts consider the questions there presented from the
standpoint of protecting employees' freedom to join or to
refrain from joining a union, a fundamental principle
underlying the Act as a whole. I have carefully considered
these decisions and am not persuaded that they present an
interpretation of the Act which is consistent with the
guiding principles of the Act. Accordingly, I cannot accept
the arguments of the Association and the Union which are
based on the Upholsterers and similar decisions.
I conclude that the Association and the Union, by being
a party to and enforcing contract provisions requiring as a
condition of receiving deferred benefits under the
collective-bargaining contract, the maintenance of union
membership after the employment relationship covered by
the contract has ceased, have violated Section 8(a)(1) and
8(b)(1)(A), respectively. Cf. Carty Heating Corp., et al., 117
NLRB 1417.1
The Association, by being a party to and enforcing
contract provisions which require continued membership
as a condition of receiving deferred benefits, provisions
which exceed the limitations of the "union shop" proviso
to Section 8(a)(3) of the Act, has thereby contributed
support to the Union in violation of Section 8(a)(2) of the
Act. Progressive Kitchen Equipment Co., Inc., 123 NLRB
992. -
The complaint as amended also alleges that the various
provisions of the plan which I have found to be illegal
under Section 8(a)(1) and (2) of the Act and 8(b)(1)(A) also
are violative of Section 8(a)(3) and 8(b)(2) of the Act.
However, I find it unnecessary to pass upon these
allegations, which present novel questions concerning the
proper interpretation of Section 8(a)(3) of the Act, for the
remedy which I propose to recommend herein will include
a make-whole provision, and will in my opinion, fully
effectuate the policies of the Act.
D. The Enforcement of the Illegal Provisions of the Plan in
Specific Cases
1. The alleged refusal to pay benefits to Dorman Glass,
Chester Moore, Paul Russell, and James Shepherd
The four men above named were employed by the
Youngs Coal Corporation at its Walnut Grove Mine at the
2 The General Counsel also notes that the plan provides for
benefits to "member-employees" only, and does not make it clear
that the only ground for discharge of an employee for failing to
maintain membership in good standing is his failure to pay
periodic dues and initiation fees. This, the General Counsel
contends, is an illegal condition. However, since all employees
were required to he members of the Union after 30 days under the
terms of the valid union-security clause of the contract and new
employees were specifically covered with the various benefits
which were applicable to any short-term member by amendment
21 to plan 7, it is understandable that the terminology "member-
343
time the mine was abandoned about June 28, 1965. None
of them had reached the usual retirement age. At this time
the four men were covered by section 8 of the special
allocation plan in effect for the Walnut Grove Mine.
Section 8, which is quoted in the preceding section of this
decision, provides for accelerated retirement benefits for
employees of abandoned mines. Section 11 of said special
allocation plan provides as follows:
Sec. 11. Union Membership-All persons
mentioned herein except widows and dependents
shall continuously remain members in good standing
of a Local Union of the Progressive Mine Workers of
America, District 1, to be eligible hereunder. In the
event a member shall fail to continuously remain a
member in good standing, any moneys allocated to his
individual accounts shall be transferred to the regular
Welfare Fund of said mine.
About July 6 the four men made application for benefits
under section 8 quoted above. About the end of July each
was notified by the executive secretary of the welfare and
retirement fund that he were eligible to receive $250 per
month in "accelerated Retirement Pension benefits" from
his allocated funds beginning July 1, 1965. The letter
concluded with the following paragraph:
Before we can make any payment to you we must
have a certificate that you are not now employed in
the coal industry. If you are employed in the coal
industry then such payment cannot be made until
after you are no longer so employed. In addition, your
Union membership must be kept up so long as you are
eligible to draw monies from this fund.
None of the four men paid any dues to the Union for the
period after June 30, 1965. About August 19, 1965, each of
the four men obtained employment at the Will Scarlett
Mine, at which the employees are represented by the
United Mine Workers, and have the benefits of a
retirement and pension fund similar to the Union's.
On August 31, 1965, the executive secretary of the fund
sent each of the four men a letter, the text of which is as
follows:
We have had under consideration your application for
benefits from the Welfare and Retirement Fund of the
Progessive Mine Workers of America, District#1.
According to our information , you became employed
at the Will Scarlett Mine at Stonefort , Illinois, and are
now so employed.
Since you automatically gave up your membership in
the Union on the date you were so employed at that
mine, under our Plan of Benefits, we regret that we
cannot pay you benefits from, this Fund.
Although you were previously notified by letter that
you would be paid benefits, that letter went out before
employees" was used throughout the plan. I find no suggestion in
this case that the Union has ever requested, or has any intention
of requesting, the discharge of an employee for failing to maintain
membership in good standing for any other than the permissible
reason of the employees' failure to pay dues or initiation fees. In
these circumstances 1 find that here, as in N.L.R.B. v. Revere
Metal Art Co., 280 F.2d 96, 101-106 (C.A. 2). cert. denied 364 U.S.
894, and Local 138, Operating Engineers ( 3 . 3 . Hagerty, Inc.) v.
N.L.R.B., 321 F.2d 130, 133 (C.A. 2), it is unreasonable to attribute
to the parties an intention to construe these particular provisions
of the plan other than in conformity with the Act.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this information was available to us, and you will
please disregard that letter.
In January 1966, after the filing of charges by Glass, the
cotrustees of the fund, upon reconsideration of their
previous decision to refuse accelerated retirement
payments to the four men, decided to grant benefits for the
month of July 1965, and pursuant to this decision sent each
of the four men a check for $250.
As found above, the provisions of the plan requiring
continued membership in the Union as a condition of the
employees of abandoned mines receiving their accelerated
retirement benefits are illegal under Section 8(a)(1) and (2)
and 8(b)(1)(A) of the Act. The temporary withholding from
Glass, Moore, Russell, and Shepherd of the accelerated
retirement benefits which they had earned at the Walnut
Grove Mine before its abandonment pursuant to these
illegal provisions constitutes a further violation of Section
8(a)(1) and (2) and 8(b)(1)(A) of the Act.3 For the reasons
stated above, I need not decide whether the Respondents'
temporary withhold of benefits also violated Section 8(a)(3)
and 8(b)(2) of the Act.
2. The alleged forfeiture of benefits of Jesse Higgins,
Wendell Bennett, and Herbert Bennett
Higgins worked at mine 5 of the Sahara Coal
Corporation from February 9, 1960, until June 1, 1965,
when he voluntarily quit. While employed by Sahara,
Higgins was a member of the Union. A day after quitting at
Sahara, Higgins commenced working for the Old Ben Coal
Corporation at a mine organized by the United Mine
Workers of America, which had a welfare and retirement
program similar to these of the Respondents in this case.
At the time Higgins quit, he had allocated to his account in
the fund the sum of $1,746.81.
Herbert Bennett and Wendell Bennett, who had started
working at mine 16 of the Sahara Coal Corporation in 1960
and 1963, respectively, voluntarily quit their jobs on
August 23, 1965. Both men had been members of the
Union during their employment by Sahara. A day or two
after quitting at Sahara, both men went to work for the Old
Ben Coal Corporation at a mine covered by a contract with
the United Mine Workers of America. At the time the
Bennetts quit working for Sahara, Wendell had allocated
to his retirement account in the fund $640.15 and Herbert
also had funds allocated to his retirement account.
Neither Higgins nor the Bennetts paid any dues to the
Union nor made any effort to remain in good standing after
quitting work for Sahara. They had not reached the normal
retirement age.
As found above, the special allocations plans for Sahara
mines 5 and 16 have identical provisions covering
accelerated retirement pensions for employees who
voluntarily quit their jobs. The relevant portions of these
provisions, which are applicable in the cases of Higgins
and the two Bennetts, have been quoted hereinabove.
Section 6 of part II of plan 7 requiring the suspension of
benefits if the member-employee returns to the coal
industry is also applicable in the cases of these men.
As found above, under the applicable provisions of the
plan with respect to members voluntarily quitting their
jobs at a contributing mine, those who fail thereafter to
maintain their membership in good standing forfeit the
:i The fact that the cotrustees have paid each of the four men
$250 is asserted fulfillment of their obligations to them under the
accelerated retirement provisions of the plan does not render this
aspect of the case moot. Assuming that $250 constitutes all that
each man was entitled to under the valid provisions of the plan,
allocations to their credit in the retirement fund 1 year
after the end of the fiscal year in which sums were last
allocated to their account.
Higgins and the two Bennetts have never made any
application to the fund for benefits and consequently no
claim has been denied them. However, it is admitted by
cotrustee Gill, that 1 year after the allocation date on
which Higgins and the two Bennetts last had funds
allocated to their retirement accounts, the sums allocated
to their credit will be forfeited.
The complaint as amended alleges that the Union
violated Section 8(b)(1)(A) and (2) and the Association
violated Section 8(a)(1), (2), and (3) of the Act in connection
with the forfeiture of accelerated retirement benefits in
the case of Higgins and the two Bennetts. However, so far
as the record shows, the Respondents have done nothing
as yet to effect such forfeiture. Higgins and the two
Bennetts are in the same position as any number of other
miners who, because of the operation of the plan, stand to
forfeit benefits in future, or credits towards benefits,
because of the enforcement of the illegal maintenance-of-
membership provisions of the plan. My findings as to the
illegality of these provisions take care of the cases of
Higgins and the two Bennetts and render unnecessary any
further findings in their cases, if indeed, any such findings
could be made because of the inchoate nature of the
conduct complained of. The provisions of my
Recommended Order will prevent any future forfeiture of
benefits pursuant to the provisions of the plan which I
have found to be illegal, including the forfeiture of the
accelerated retirement benefits due Higgins and the two
Bennetts.
CONCLUSIONS OF LAW
1. By maintaining and enforcing contract provisions
which condition the grant of benefits upon the continued
maintenance of membership in good standing in the Union
after the employment relationship covered by the contract
has ceased and by withholding accelerated retirement
benefits from Dorman Glass, Chester Moore, Paul Russell,
and James Shepherd, the Association has interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act, and contributed support to the
Union in violation of Section 8(a)(2), and the Union has
restrained and coerced employees in the exercise of their
Section 7 rights in violation of Section 8(b)(1)(A) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Association and the Union have
violated various provisions of the Act by their maintenance
and enforcement of contract provisions which condition
the grant of certain benefits upon the continued
maintenance of membership in the Union after the
employment relationship covered by the contract has
ceased , my Recommended Order will provide that the
Respondents cease and desist therefrom and from
engaging in any like or related violations of the Act.
I have also found that the Respondents, -through their
agents, the cotrustees, temporarily withheld accelerated
such a payment does not bar the Board from entering an
appropriate remedial order. The Respondents ' conduct
constituted an unfair labor practice and the Board was entitled to
ban its resumption. N.L.R.B. v. Mexie Textile Mills, Inc ., 399 U.S.
563.
COAL PRODUCERS ASSN. OF ILL.
retirement benefits from Dorman Glass, Chester Moore,
Paul Russell, and James Shepherd pursuant to certain of
the illegal provisions of the plan. It is not clear from the
record that the $250 which the cotrustees paid each of the
four men in January 1966 in payment for accelerated
retirement benefits due them for the month of July 1965
constitutes full payment to them of the accelerated
retirement benefits to which they were entitled under the
valid provisions of the plan. Each may be entitled to
further payment for that part of the month of August which
elapsed before he again obtained a job in the coal industry.
Accordingly, my Recommended Order will provide, as a
345
remedy for the Respondents' violations of Section 8(a)(1)
and 8(b)(1)(A), that they jointly and severally make Glass
and the other employees whole for any loss of accelerated
retirement benefits which they may have suffered as a
result of the Respondents' enforcement of the illegal
provisions of the plan referred to above. The sums due, if
any, are to be computed on a quarterly basis, with interest
at 6 percent per annum, in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB 289,
291-293, and Isis Plumbing & Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]