NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,599, DISTRICT 17, UNITED MINE WORKERS OF AMERICA and PHILLIP LEE WHITE., (Dec. 19, 1994), National Labor Relations Board, (Dec 19, 1994)

DISTRICT 17, UNITED MINE WORKERS OF AMERICA and PHILLIP LEE WHITE.

315 NLRB No. 127.Case Nos. 9-CB-7767 and -7805. December 19, 1994 Robert M. Schwarzbart, Administrative Law Judge..

Before Gould, Browning and Cohen.

David L. Ness, for General Counsel. Charles F. Donnelly, Charleston, West Virginia and Bradley J. Pyles (Crandall & Pyles), Logan, West Virginia, for Respondent, District 17. Phillip Lee White, Peach Creek, West Virginia, pro se. Claude (Sam) Tiller, Logan, West Virginia, for Party-in-Interest.

Coercion of Discrimination--Seniority Status--Date of Union Membership.--By maintaining and enforcing an agreement with an employer by which seniority was based upon the duration of membership in the union rather than length of employment, and by discharging an employee pursuant to that agreement, a union acted unlawfully. When the employee complained of being laid off while another individual with less seniority was retained, the union stated that that individual was allowed to keep his seniority as of his hire date because he had come into the union voluntarily, while the employee could not maintain his seniority because he had joined the union only under compulsion. Sections 8(b)(1)(A) and (2).

Back reference: ¶4080.758.

Fair Representation Duty--Refusal to Arbitrate--Seniority Based on Membership.--A union acted unlawfully when it refused to process to arbitration an employee’s grievance concerning his layoff because of the employee’s earlier nonmembership in the union and/or his reluctance to become a union member, and by telling the employee that his grievance lacked merit because his seniority did not begin to run until he became a member of the union. Furthermore, even if the employee’s grievance was untimely, the union’s ability to represent the employee was tainted by its own policies which unlawfully encouraged employees to join the union as a prerequisite to obtaining seniority. Section 8(b)(1)(A).

Back reference: ¶4450.2112.

From Text of Board’s Decision

On April 28, 1994, Administrative Law Judge Robert M. Schwarzbart issued the attached decision. The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three member panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, [1] and conclusions and to adopt the recommended Order.

In so doing, we note that in its exceptions, the Respondent also argues that the judge erred in failing to find the charge untimely in light of his finding that Charging Party Phillip White was or should have been aware of his improper seniority date over 2 years before the filing of the unfair labor practice charge. We find no merit in this exception. As noted by the Respondent, Section 10(b) is tolled until there is either actual or constructive notice of the alleged unfair labor practice. Pinter Bros., [1982-83 CCH NLRB ¶15,194] 263 NLRB 723, 739 (1982). In the present case, the judge found that White knew or should have known of the seniority date assigned to him by his employer from the posted seniority lists. There is nothing on these seniority lists, however, to put White on notice of the Respondent Union’s involvement in determining his seniority date, and it was not until August 1990, a date within the 10(b) period, when White attempted to file a grievance with the Respondent, that he learned that his seniority date resulted from an agreement between the Employer and the Respondent. Further, the statements made by Porter on August 16, September 7, and November 7, 1990, that White’s seniority with Joshua did not begin until he became a member of the Union reaffirmed within the 10(b) period the Respondent’s continued maintenance of the unlawful agreement regarding seniority. Accordingly, we find the limitations of Section 10(b) inapplicable in these circumstances. [2]