United Mine Workers

National Labor Relations Board - Board Decisions

Mar 26, 1973

202 N.L.R.B. 734 (N.L.R.B. 1973)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union , United Mine Workers of Ameri-
ca and Michael Trbovich and United Mine Work-
ers of America Welfare and Retirement Fund of
1950 ; Anthracite Health and Welfare Fund , Parties
in Interest, and Association of Disabled Miners and
Widows. Case 5-CB-1013
March 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On June 20, 1972, Administrative Law Judge'
Louis Libbin issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party2 filed exceptions and supporting
briefs; the Respondent filed cross-exceptions and a
supporting brief, and a brief in support of the
Administrative Law Judge's Decision and in reply to
the General Counsel's and Charging Party's briefs;
and the Charging Party filed an answering memoran-
dum.
The Board has considered the record and the
attached decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
Our dissenting colleague, agreeing that the Board
has no jurisdiction over retirees under Section 2(3) in
view of the Supreme Court's decision in Pittsburgh
Plate Glass,3 would find that Respondent's alleged
requirement that retired employees or pensioners be
members in good standing in order to be eligible for
pension benefits violates Section 8(b)(1)(A) and (2)
because of its impact on active miners. He argues
that because of the alleged membership requirement
active employees know that when they reach retire-
ment age they can be eligible for pension benefits
only if they have maintained their union membership
and that this kind of conditioning of a future benefit
upon currently maintained union membership is
clearly a violation of Section 8(b)(1)(A) and (2).
The Administrative Law Judge, after noting that
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Charging Party's request for oral argument is hereby denied, as the
record , including the briefs , adequately presents the issues and positions of
the parties
3 Pittsburgh Plate Glass Company, Chemical Division v N L R B, 404
U S 157
d Both the Bituminous and Anthracite Funds are divided into two
separate funds or accounts, (I) a retirement fund, and (2) a fund to provide
other benefits, primarily hospital and medical care benefits Working or
active miners are eligible for hospital and medical benefits while regularly
employed in the coal industry as employees of a signatory employer to the
contract between the Respondent and the coal operators Eligibility
continues while miners are so employed and for I year thereafter while
employees in the coal industry have no vested
pension interest, rejected the contention with respect
to the alleged impact of Respondent's conduct on
active miners primarily because employees in the
coal industry are required to be members of
Respondent as a condition of employment pursuant
to a valid union-security clause. Under these circum-
stances, he concluded that the impact upon active
miners is uncertain, speculative, and problematical
because there is no way of assessing the significance
of Respondent's alleged conduct in relationship to
the actions of active members in maintaining their
membership in Respondent. We agree.
In the first place, active miners are required to
maintain their membership in Respondent because
of the concededly valid union-security clause. Given
such a clause, to ascribe other reasons for active
miners maintaining their membership is no more
than speculation.
Moreover, there are other speculative reasons why
active miners may decide to maintain their member-
ship in Respondent. Thus, they may retain eligibility
for certain other Fund benefits. To illustrate, the
Charging Party concedes that, "Certain Fund bene-
fits . . . are properly related to union membership
. . . eligibility for hospital care through the Fund
during the period of active employment is necessarily
dependent upon union membership because of the
union-security clause in the contract."4 Do employed
active miners retain their union membership because
of the more immediate need of health and medical
services for themselves and their families? Any
answer we could make would be no more than
speculation. The Supreme Court in Pittsburgh Plate
Glass v. N. L. R. B., rejected a somewhat similar
contention, though admittedly in a different 8(a)(5)
context. The Court, in concluding that the impact on
active employees was speculative and insubstantial,
stated, "we find nowhere a particle of evidence
showing . . . the concern of active workers for their
own future retirement benefits." If active miners are
concerned about their pension eligibility, and pre-
sumably they are, that concern is not established on
a record that deals with retirees.5 In conclusion we
unemployed Miners receiving workmen's compensation for a mine injury
or occupational disease sustained while employed under the contract may
continue to be eligible for hospital and medical benefits while unemployed
for up to 4 years from the date of last employment Pensioners are eligible
provided they are not employed in an occupation outside the coal industry
5 During the period 1960 to 1964 there were 2.134 appeals for
reinstatement to membership Between 1964 and 1968 there were 9,979
appeals for reinstatement to membership The explanation given for the
great number of appeals for reinstatement between 1964 and 1968 was that
the pension plan lowered its eligibility age requirement on February I, 1965,
to 55 years , thereby rendering eligible many former members who had let
their membership lapse upon retirement because they could not qualify for
a pension under the previous age requirement (age 60) These figures, set
forth in the Charging Party 's brief for a different purpose ( though all pre-
202 NLRB No. 79
UNITED MINE WORKERS 735
are unable to assess the impact of Respondent's
alleged eligibility requirement on active miners
because, as the Administrative Law Judge found, to
do so would amount to outright speculation.6
The General Counsel, in advancing his argument
concerning the impact of Respondent's alleged
pension requirement, analogized to Board decisions
holding that the discharge of supervisors for refusing
to assist the employer in the commission of unfair
labor practices infringes on the rights of employees in
violation of the Act. The Administrative Law Judge
found such decisions inapposite. We agree. For if we
were to find the violation as urged by our colleague,
what remedy would we provide? A cease-and-desist
order and remedy would, in fact, not go to the
purported impact of Respondent's conduct on the
active miners who are required to maintain their
union membership under a valid union-security
clause. Rather the cease-and-desist provisions would
of necessity refer directly to the requirement alleged-
ly imposed upon retirees, over whom the Supreme
Court has denied us jurisdiction. We would, there-
fore, be attempting to do indirectly what we have
been prohibited from doing directly. It is in this
respect that we believe General Counsel's analogy to
the remedying of discharges of supervisors fails. In
those cases, the Board ordered supervisors reinstated
only because of the impact of Respondent's conduct
on employees; the reinstatement of the supervisor
was incidental to the protection of the employees.
Here the remedy with respect to retirees would not
be an incident of our attempting to protect the active
miners from the alleged coercion resulting from
Respondent's allegedly unlawful pension require-
ment. Rather the remedy would directly affect
thousands of retirees over whom we have no
jurisdiction, while the effect on the active miners
would be at best secondary and incidental.
In accordance with the Administrative Law Judge's
findings we shall dismiss the case in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
10(b)), if nothing else tend to show that the alleged impact of Respondent's
alleged requirement upon active miners or miners about to retire was not
taken as seriously as our colleague would have us infer In other words, a
substantial number of miners were apparently not concerned that they
would lose pension eligibility if they let their membership lapse
6 Our colleague's reliance on Local 140, Bedding, Curtain & Drapery
Workers Union, United Furniture Workers of America, CIO, 109 NLRB 326,
is, in our opinion , misplaced That case involved the discharge of three
employees upon the demand of the union which claimed they were not
members in good standing under a valid union-secunty clause although the
three employees had been and wanted to continue as union members but
opposed signing a new checkoff authorization, which gave the union the
right to make extra assessments Thus, a clear violation of Sec 8(b)(2) was
established As a concomitant of his unlawful discharge and removal from
good standing in the union, one of the three employees was denied hospital
benefits by the union security fund It was with respect to this incident that
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed.
CHAIRMAN MILLER, dissenting:
The complaint, which my colleagues summarily
dismiss without ever reaching the merits, alleges,
inter aba, that Respondent and signatory coal
operators to the anthracite collective-bargaining
agreement have maintained in effect and enforced
provisions of the Anthracite Fund "which provisions
require membership in good standing in Respondent
and/or one of its affiliated Locals in order for
applicants to become eligible for, and to continue to
participate in, pensions and/or other benefits ..
from a jointly administered pension fund.
The dismissal is grounded on the Supreme Court
decision in Pittsburgh Plate Glass Company v.
N.L.R.B., 404 U.S. 157, wherein the Court held that
-retired employees are not "employees" within the
meaning of Section 2(3) of the Act.
In my view, the decision misses the mark. As I
understand the allegations of the complaint, Respon-
dent has participated in maintaining and enforcing
terms of an agreement covering active employees in
such a way that those active employees know that,
when they reach retirement age, they can be eligible
for pensions only if they have, over their years of
active employment and continuing up to and
including the date of their application for a pension,
maintained their membership in Respondent Union.
If these allegations be taken as true, it is necessarily
obvious to all active employees that there will be
disparate treatment with respect to pension eligibili-
ty, based solely on the employee's membership or
nonmembership in the Union during all of his
employment years.
That kind of conditioning of a future benefit upon
currently maintained union membership seems to me
so clearly a violation of our Act that I am at a loss to
understand the dismissal herein.?
To me it seems wholly irrelevant even to examine
the language quoted by our colleague was employed by the Administrative
Law Judge
The differences in the cases are marked Here the alleged unlawful
requirements for pension eligibility are not included in the contract between
the Respondent and the mine operators There the security fund provided
only hospital, medical, and death benefits it did not provide pension
benefits for retirees Thus , in that case, the impact of requiring union
membership for the receipt of an immediate benefit to an employee was clear
and was demonstrated on the record Here we are not only concerned with a
possible future benefit but must speculate as to whether the Respondent's
alleged requirement for eligibility, which applies only to retirees, has an
impact on active employees
' This Board affirmed the decision of Trial Examiner (now Administra-
tive Law Judge) Arthur Leff, who said, in Local 140, Furniture Workers, 109
NLRB 326, 342
By making contributions to a welfare fund in which employee benefits
(Continued)
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the question of whether, at the time of payment
of the future benefit, present employees will be
"employees." If an agreement were to provide, for
example, that 2 weeks after termination of employ-
ment by the employer, former employees who had
maintained their union membership up to and
including termination would be paid $10,000 as a
severance pay benefit, but those who had remained
nonmembers would receive nothing, could there be
any doubt that the contracting parties were guilty of
illegal discriminatory conduct under our Act? Would
it be of any significance whatever that at the time of
actual payment, the beneficiaries (or nonbeneficiar-
ies) were no longer "employees"? Of course not.
The order of dismissal here is thus wrongly
premised, is in error, and I therefore dissent.
are in fact restricted to those employees only who are union members,
though the employer's contributions are made without reference to
union membership or nonmembership of unit employees , an employer
in effect provides more favorable wages and working conditions to
those who are union members than to those who are not Disparate
treatment on that basis is discrimination forbidden by the Act Gaynor
News Company, Inc, 93 NLRB 299, enfd 197 F 2d 719 (C A 2) The
law is by now clearly established that a labor organization is
responsible for illegal discrimination that derives from an agreement to
which it is a party , and that it violates Section 8 (b)(2) as well as Section
8(b)(I)(A) of the Act when it executes , maintains , or enforces a
collective-bargaining agreement containing provisions which have the
effect of imposing discriminatory conditions of employment
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LiBBIN, Trial Examiner: Upon charges filed on
April 13, 1970, and February 24, 1971, by Michael
Trbovich, an individual, the General Counsel of the
National Labor Relations Board, by the Acting Regional
Director for Region 5 (Baltimore, Maryland), issued a
complaint, dated April 6, 1971, against International
Union, United Mine Workers of America, herein called the
Respondent or UMW. With respect to the unfair labor
practices , the complaint as amended at the trial alleges,
and Respondent's answer as amended denies, that Respon-
dent violated Section 8(b)(1)(A) and (2) of the Act.
This case was tried before me at various times during the
period from August 16, 1971, to April 7, 1972, in
Washington, D.C., Wilkes-Bane, and Washington, Penn-
sylvania, and Charleston, West Virginia. All parties
appeared at the trial and were given full opportunity to
participate therem . i On December 27, 1971, I received
from Respondent a motion to dismiss or for summary
judgment in view of the then recent Supreme Court
decision holding that retirees or pensioners were not
employees within the meaning of the Act in a refusal-to-
bargain context.2 On January 11, 1972, the Charging Party
submitted a brief in opposition to said motion. All parties
were afforded an opportunity to argue orally on said
motion at the session held on January 11, 1972, in
Washington, D.C. At the conclusion of the argument, I
i On the first day of the trial , I granted the motion of the Association of
Disabled Miners and Widows to intervene to the extent of its interest
deferred ruling on the motion and ruled that , under all the
circumstances , it would be more expeditious and efficient,
as well as less costly, for the parties to proceed with the
remainder of the case and get all the evidence "locked"
into the record and that I would rule on the motion in my
decision . This is the procedure which was followed.
On May 8, 1972 , the General Counsel , the Respondent,
and the Charging Party filed extensive , detailed, and
comprehensive briefs on all issues bearing on the merits as
well as on Respondent 's motion to dismiss. On May 22,
1972, pursuant to leave granted in this respect, the
Respondent and the Charging Party also filed reply briefs.
Respondent 's motion to dismiss the complaint , upon which
I reserved ruling and which is renewed in its brief, is
hereby granted for the reasons hereinafter stated.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The bituminous coal operators who are signatory to the
National Bituminous Coal Wage Agreement of 1950, as
amended, and the anthracite coal operators who are
signatory to the Wage Agreement of 1946 , as amended, are
engaged in the production , mining, and sale of coal. In the
course and conduct of their business operations , the coal
operators produce, mine, and sell a large volume of coal (in
excess of 400 million tons in 1968), a substantial amount of
which is sold , delivered , and transported to and through
the various States of the United States.
Upon the above admitted facts, I find , as Respondent's
answer also admits, that said coal operators are, and at all
times material herein have been , engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
H. THE RESPONDENT
The complaint alleges, the answer admits, the record
shows, and I find , that International Union , United Mine
Workers of America, the Respondent herein sometimes
called UMW, is a labor organization within the meaning of
Section 2(3) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations and the Issues
Respondent admits, as the complaint alleges, that at all
times material herein Respondent and/or its affiliated
district and locals have been recognized as the collective-
bargaining representative of employees employed at the
mines of operators who are signatory to the National
Bituminous Coal Wage Agreement of 1950, as amended,
and the Anthracite Wage Agreement of 1946 , as amended.
Respondent also admits , as the complaint further alleges,
that for many years Respondent has been party to separate
collective-bargaining agreements with anthracite and
bituminous coal operators , which agreements provide for
health and welfare funds respectively designated as
Anthracite Health and Welfare Fund , herein called the
Anthracite Fund, and United Mine Workers of America
2 N L R B v Pittsburgh Plate Glass Company, 404 U S 157
UNITED MINE WORKERS 737
Welfare and Retirement Fund, herein called the Bitumi-
nous Fund. The Respondent also admits, as the complaint
still further alleges, that signatory coal operators to the
respective agreements are contractually obligated to make
payments into the funds at the rate of 70 cents for each ton
of coal produced in the case of the Anthracite Fund and at
the rate of 40 cents for each ton of coal produced in the
case of the Bituminous Fund. The complaint also alleges
that each fund is managed and administered by three
trustees, one appointed as a representative of Respondent,
another as a representative of the signatory coal operators,
and the third as a neutral trustee. Respondent admits that
the funds are managed and administered by three trustees
pursuant to Section 302(2)(c) of the Act. Finally, the
complaint alleges, and Respondent's answer denies, (I)
that signatory coal operators to the anthracite wage
agreement and the Respondent have maintained in effect
and enforced provisions of the Anthracite Fund, "which
provisions require membership in good standing in
Respondent and/or one of its affiliated Locals in order for
applicants to become eligible for, and to continue to
participate in, pensions and/or other benefits" from the
Anthracite Fund; (2) that signatory coal operators to the
bituminous wage agreement and the Respondent "have,
pursuant to an understanding and/or arrangement, re-
quired applicants to become and or remain members in
good standing in Respondent in order to receive and to
continue to receive retirement benefits" from the Bitumi-
nous Fund; and (3) that by the foregoing conduct, in
conjunction with the other allegations hereinabove stated,
Respondent has restrained and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act in
violation of Section 8(b)(1)(A) and has caused or attempt-
ed to cause "an employer to discriminate against his
employees" in violation of Section 8(b)(2) of the Act.
The principal issues litigated in this proceeding are (1)
whether retirees and/or pensioners are employees within
the meaning even if they are not, jurisdiction should be
asserted because of the alleged impact on working miners,
(2) the factual issue of whether the of the Act in the context
of Section 8(b)(I)(A) and (2), and whether, conduct alleged
in the complaint did in fact occur; (3) the agency issue of
whether Respondent is liable for the alleged conduct if it
did in fact occur; (4) whether the payments which
pensioners were required to make were in the nature of
legitimate and permissible service fees for the services and
benefits rendered by Respondent; and (5) whether Respon-
dent's conduct, if it did in fact occur, violated Section
8(b)(1)(A) and (2) of the Act.
B. Respondent's Motion To Dismiss
The instant case involves only persons who are retirees
or pensioners and the complaint is based on the premise
that such persons are employees. Thus, the General
Counsel stated during the course of opening statements on
the first day of the trial that "underlying our whole basis
here is the fact . . . that retired individuals are employees"
within the meaning of the Act. Respondent's motion to
dismiss therefore raises the threshold issue of whether
retirees and/or pensioners3 are employees within the
meaning of Section 2(3) of the Act and whether the
complaint should be dismissed without reaching the issues
on the merits.
Section 2(3) of the Act provides:
The term "employee" shall include any employee and
shall not be limited to the employees of a particular
employer, unless the Act explicitly states otherwise, and
shall include any individual whose work has ceased as a
consequence of, or in connection with, any current
labor dispute or because of any unfair labor practice,
and who has not obtained any other regular and
substantially equivalent employment .. . .
Respondent contends that the decision of the Supreme
Court in the Pittsburgh Plate Glass4 case is controlling and
dispositive of the issue in the instant case.
The issue presented to the Supreme Court in the
aforementioned case was whether, as the Board found, the
employer had violated Section 8(a)(5) of the Act by
refusing to bargain about changes in retirees' benefits. The
Court held that there was no violation because retirees are
not employees within the meaning of Section 2(3) of the
Act and the statutory bargaining obligation extends only to
the employment terms and conditions of the employer's
employees. In reaching the conclusion that the retirees
were not employees within the meaning of Section 2(3) of
the Act, the Court emphasized (1) the overall purpose of
the Act to prevent or minimize "the disruption to
commerce that arises from interference with the organiza-
tion and collective-bargaining rights of `workers'-not
those who have retired from the work force" and (2) the
legislative history of Section 2(3) which itself "indicates
that the term `employee' is not to be stretched beyond its
plain meaning embracing only those who work for another
for hire" (404 U.S. at p. 166). The Court concluded that the
"ordinary meaning of `employee' does not include retired
workers; retired employees have ceased to work for
another for hire" (at p. 168) and that "it would utterly
destroy the function of language to read them as
embracing those whose work has ceased with no exception
of return" (at p. 172).
The General Counsel and the Charging Party take the
position that the term "employee" should be construed to
include retirees and pensioners within the context of
Section 8(b)(1)(A) and (2) of the Act and assert that such a
construction is not foreclosed by Pittsburgh Plate Glass
because the Supreme Court limited its holding in that case
to a context where only Section 8(a)(5) was involved.
Contending that there is no anomaly in holding the term
"employee" to have different meanings under different
sections of the Act, the Charging Party points to the fact
that the Supreme Court in the same decision affirmed
earlier holdings of circuit courts of appeals construing the
word "employee" as used in the exemption to Section
302(e)(5) of the Act to include retirees (at p. 169).5
3 These terms are hereinafter used interchangeably representative of any of his employees Sec 302(c)(5) provides an exemption
4 N L R B v Pittsburgh Plate Glass Company, 404 U S 157 for payments to an employee trust fund established "for the sole and
5 Sec 302 prohibits, inter also, any payment by an employer to any exclusive benefit of the employees of such employer" and administered by
(Continued)
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the Supreme Court at the same time also pointed
out that such cases are "not at all in point" because that
conclusion "was compelled by the fact that the contrary
reading of the statute would have made illegal contrib-
utions to pension plans, which the statute expressly
contemplates in subsections (A) and (C)" of Section
302(c)(5) (at pp. 169-170 and In. 10). The Charging Party
also argues that a holding that the term "employee" does
not include pensioners will nullify the proscriptions in
Section 302(c)(5) against payments by employers to
representatives of their employees and thereby allow
employers to do indirectly that which is forbidden directly.
I am not impressed by this argument. I find that such dire
predictions are not the natural consequences of the premise
upon which they are bottomed by the Charging Party and
at best are highly remote and speculative.
The principal argument advanced by the General
Counsel and the Charging Party in support of their
position rests in part on some of the language contained in
the definition of the term "employee," in part on the fact
that some of the retirees and pensioners in the instant case
are available for, and have obtained, employment outside
the coal industry, and in part on the reference in the
Supreme Court's decision to persons who are members of
the active work force. It is true that there are retirees and
pensioners in the coal industry who are in need of
supplementing their income, that for that reason there is a
small percentage of them who are actually employed
elsewhere outside the industry, and that others may be
available but unable to obtain such employment. The
General Counsel and the Charging Party point to the
language in Section 2(3) which states that "the term
`employee' shall include any employee, and shall not be
limited to the employees of a particular employer, unless
the Act explicitly stated otherwise ...." They then point
to the statement of the Supreme Court in the Pittsburgh
Plate Glass decision that "people who, unlike the pension-
ers here, were members of the active work force available
for hire and at least in that sense could be identified as
`employees' " (at p. 168).6 From all this they conclude that
at least those retirees and pensioners who work, or are
available for work, outside the coal industry have retained
their status as "employees" under the Act vis-a-vis the
UMW in this case. I find no merit in these arguments.
In the first place, as Respondent points out, the
legislative history of the Act shows that the above-quoted
language in Section 2(3) (about "not being limited to the
employees of a particular employer") was designed to deal
with a situation totally unrelated to the one in the instant
case, as is readily apparent from the quotation in the
margin.? As for the above-mentioned statement of the
exclusive benefit of the employees of such employer" and administered by
equal numbers of representatives of the employer and employees
6 This statement was made in rejecting, as "wide of the mark," decisions,
relied on by the Board, which held that the term "employee" covered
applicants for employment and registrants at hiring halls who have never
been hired (tbid )
7 See Senate Report No 573 on S 1958, Legislative History of the
National Labor Relations Act 1935, Vol 11, which states at p 2305
The term "employee" is not limited to the employees of a particular
employer The reasons for this are as follows Under modern
conditions employees at times organize along craft or industrial lines
and form labor organizations that extend beyond the limits of a single-
Supreme Court, seized upon by the General Counsel and
the Charging Party, it can only be meaningful in its
application to Section 8(b)(1)(A) and (2) in the instant case
if, as Respondent also points out, it is construed to refer to
"members of the active work force" in the industry in
which the employer or labor organization functioned, in
this case the coal industry and the UMW. As they admit
that "those pensioners who have retired, and are no longer
in the active work force, are not employees within the
coverage of the Act," the position urged by the General
Counsel and the Charging Party would create the anomaly
of holding the term "employee" to have different meanings
(depending on the economic position of the pensioner)
under the very same section of the Act. Finally, unlike the
General Counsel and the Charging Party, I do not regard
President Boyle's 1971 memorandum, outlining the deci-
sion of Respondent's executive board concerning the
amount of dues required of "pensioned members who are
working outside the mining industry," as an admission by
Respondent that such pensioners are employees within the
meaning of Section 2(3) of the Act.
Additionally, the General Counsel and the Charging
Party contend that even if pensioners are not employees
within the meaning of the Act, jurisdiction should still be
asserted in the instant case, because, they argue, Respon-
dent's alleged unlawful requirements for obtaining and
receiving pension benefits infringe upon the rights of
presently active working miners in the coal industry in
violation of Section 8(b)(1)(A) of the Act. Such active
miners would retain their good-standing membership in
Respondent, the argument goes, because of these alleged
well-known requirements so that Respondent's alleged
conduct in this respect would restrain and coerce the active
miners in the exercise of their right to refrain from such
activity. The General Counsel in his brief analogizes to the
decisions, holding that the discharge of a supervisor for
refusing to assist the employer in the commission of unfair
labor practices infringes upon the rights of the employees
in violation of Section 8(a)(1) of the Act.
I find the aforementioned decisions to be completely
inapposite to the situation in the instant case. The
employees in the coal industry have no vested pension
rights. They are required to be members in good standing
in Respondent as a condition of employment pursuant to a
valid union-security clause Under all the circumstances,
there is no way of assessing the significance of Respon-
dent's alleged conduct in relationship to the actions of the
active miners in maintaining their membership in Respon-
dent. At best, such impact is uncertain, speculative, and
problematical. I therefore find no merit in the foregoing
arguments.
employer unit These organizations at times make agreements or
bargain collectively with employers, or with an association of
employers. Through such business dealings, employees are at times
brought into an economic relationship with employers who are not
their employers in the course of this relationship, controversies
involving unfair labor practices may arise If this bill did not permit the
Government to exercise complete jurisdiction over such controversies
(arising from unfair labor practices), the Government would be
rendered partially powerless, and could not act to promote peace in
those very wide-spread controversies where the establishment of peace
is most essential to the public welfare
UNITED MINE WORKERS
I conclude and find that the Supreme Court's decision in
Pittsburgh Plate Glass is controlling in this case and that
the retirees and pensioners herein involved are not
employees within the meaning of Section 2(3) of the Act,
even in the context of Section 8(b)(1)(A) and (2). In view of
all the foregoing, I hereby grant Respondent's motion to
dismiss the instant complaint, without passing on the
merits of the allegations contained therein.
C. Recommendation for Decision on Merits Without
Remand, Credibility Resolutions
In the event that the Board disagrees with my findings
and conclusions with respect to Respondent's motion to
dismiss the instant complaint, it would normally remand
the case to me for a decision on the merits. However, as I
will not be available because of my retirement on July 1,
1972, I strongly recommend that in that event the Board
itself proceed directly to a determination of the merits
instead of remanding the case to a new Trial Examiner.
The Board has the authority, which in the past it has
exercised, to issue proposed findings and conclusions, and
a proposed Order, when the Trial Examiner who heard the
case has become unavailable.8 This would be particularly
appropriate and efficacious in the instant case in view of
the fact that all parties have submitted such extensive,
detailed, and comprehensive briefs on all the issues herein
involved and also in view of the lapse of time already
incurred since the issuance of the complaint and the
commencement of the trial.
The instant record contains only a few direct conflicts in
the testimony of witnesses. To the extent that it may
facilitate the Board in adopting the procedure which I have
recommended, I herein make the following credibility
resolutions where the testimony is in conflict:
Thomas A. Williams was the president of District 6 of
UMW, with his office located in Bellaire, Ohio. Mary
Saunders and Rose Koyder (whose maiden name was
Angelo) were employed in his office as secretaries. John
Archibald, a pensioner and member of Local 1110 of
Division 4 of District 6, testified that in 1966 when he went
to the office of District 6 to fill out his application for a
pension, Mary Saunders told him that he would have to
pay up his back dues in order to get his pension and that
739
she made arrangements for him to pay his back dues in
three installments. Terry Snively, the financial secretary of
Local 5497 of District 6 for about 15 years, testified that he
was told by Mary Saunders and Rose Koyder (Angelo)
both on the telephone and in person that the procedure he
was to follow in the case of pension applicants was to have
them pay up their back dues and reinstate their member-
ship before they could get their pension. Both Mary
Saunders and Rose Koyder denied having made the
statements hereinabove attributed to them.
Elmer Andrews, a member of Local 4285 of District 6,
testified that in 1969 he was told by Zedmont Yzenski, the
financial secretary of the Local, that he would have to get
back into the Union and would have to pay up all his back
dues in order to get his pension. Yzenski denied having
made such a statement to Andrews.
Guy Coleman, a member of Local 8328 of District 30,
was denied a pension in 1967 because he had done some
work in a nonunion mine. He testified that in January or
February 1969 he was told by Carson Hibbits, the
president of the District, that Coleman's pension'lvould be
fixed up if he would drop his membership from the
Association of Disabled Miners and Widows. Hibbits
testified that he had no recollection of ever meeting
Coleman.
Based on my observation of the demeanor of the
witnesses, I credit the testimony of John Archibald, Elmer
Andrews, and Guy Coleman, as hereinabove set forth.
CONCLUSIONS OF LAW
1. The retirees and pensioners are not employees within
the meaning of Section 2(3) of the Act even in a context of
Section 8(b)(1)(A) and (2).
2. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclu-
sions, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby recommend that the
complaint herein be dismissed in its entirety.
8 Sec 102 36 of the Board's Rules and Regulations, Series 8, as amended