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Local Union No. 167 v. National Labor Relations Board

February 6, 1970

LOCAL UNION NO. 167, PROGRESSIVE MINE WORKERS OF AMERICA, PETITIONER,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT



Hastings, Senior Circuit Judge, Kiley and Kerner, Circuit Judges.

Author: Kerner

KERNER, C. J.:

This case is before the court upon a petition to review and set aside an order of the National Labor Relations Board (Board) issued against petitioner Local Union No. 167, Progressive Mine Workers of America (Union) remedying a violation of § 8(b) (1) (A) of the National Labor Relations Act (Act). In its cross-application for enforcement, the Board requests the order be enforced in full. We conclude that the Board's order should be enforced.

Progressive Mine Workers of America, District No. 1 (PMW) is a labor organization comprised of a number of constituent local unions of which the petitioner Union is one. PMW has entered into a series of master collective bargaining agreements with the Coal Producers' Association of Illinois (Association), a multi-employer group. The Peabody Coal Co. (Company), while not a member of the Association has adopted these agreements by reference in its contracts.

The two mineworkers who are the objects of the alleged Union's unfair labor practice, and the charging parties, were employees at the Peabody Coal Company's Midwest Mine. The employees of the Midwest Mine are represented by the petitioner Union and at the time of the events in this case, were covered by the then current contract between the Union and the Company, incorporating the current contract between PMW and the Coal Producers' Association.

One of the employee benefit programs established by the contract between the Union and the Company is its Welfare and Retirement Pension Plan. Section 23 of the Special Allocation Plan for the Midwest Mine, governing the details of administration of the Welfare and Retirement Pension Plan, as it applies to Midwest employees, provides that "continuous Union membership" is necessary for eligibility and that "dropping of such membership shall automatically forfeit any funds then allocated or the right to any future allocations."

Melvin Bosse and Marvin Ude had worked at the Midwest Mine for more than 27 and 10 years respectively. Both men were eligible for participation in the Welfare and Retirement Pension Plan upon retirement from the Coal Industry. On January 16, 1967, both Bosse and Ude quit their jobs at Midwest Mine and accepted jobs at another mine, at which the employees were represented by the United Mine Workers of America (UMW). By virtue of having accepted such employment, however, Bosse and Ude, both PMW members, violated the membership requirements of the PMW constitution which provides in relevant part:

Any member of the Progressive Mine Workers of America accepting employment in the coal industry in any mine not under contract with Progressive Mine Workers of America or International Union District 101, [shall] be immediately dropped from membership.

Article VI, Section 5.

On the day they quit the Midwest Mine, January 16, 1967, Bosse and Ude presented to the Union's financial secretary checks for $15.95 for their union dues for the balance of the year. Although the Union originally accepted the two employees' dues, the Union subsequently, after a three-month retention, returned the dues. The Union asserted that Bosse and Ude were no longer eligible to participate in the Welfare and Retirement Pension Plan because of their non-membership in the Union.

The Board found that the Union violated § 8(b) (1) (A) of the Act by depriving Bosse and Ude of eligibility for pension and welfare benefits because of non-membership in the Union. The Board further found that the Union's refusal to accept their tendered dues and to permit these employees to remain eligible served as a warning to other Midwest employees that they too might lose such employment benefits in the event they went to work at a UMW mine and lost their membership in the Union. In this respect also, the Board found the Union's conduct violative of § 8(b) (1) (A) of the Act.

Accordingly, the Board ordered the Union to cease and desist from the unfair labor practices found and from in any like or related manner interfering with the Section 7 rights of the employees at the Midwest Mine. Affirmatively, the Board ordered the Union to accept the dues of Bosse and Ude as service fees if they tender them again; to notify the trustees of the Welfare and Retirement Pension Plan that Bosse and Ude have at all times met the Union's requirements for eligibility; and to post appropriate notices.

Section 8(b) (1) (A) of the Act states:

(b) It shall be an unfair labor practice for a labor ...


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