Coal Producers' Association of Illinois, 337 (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

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...