UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.
                                                                      No. 95-1925
DISTRICT 17, UNITED MINE
WORKERS OF AMERICA,
Respondent.

On Application for Enforcement of an Order
of the National Labor Relations Board.
(9-CB-7767, 9-CB-7805)

Argued: March 6, 1996

Decided: May 13, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
YOUNG, Senior United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Enforcement granted by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael F. Niggemyer, General Counsel, District 17,
UNITED MINE WORKERS OF AMERICA, Charleston, West Vir-
ginia, for District 17. David S. Habenstreit, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for NLRB. ON BRIEF:
Frederick L. Feinstein, General Counsel, Linda Sher, Associate Gen-
eral Counsel, Aileen A. Armstrong, Deputy Associate General Coun-
sel, Linda Dreeben, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for NLRB.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The National Labor Relations Board ("the Board") charged that
District 17, United Mine Workers of America ("District 17") and
Joshua Industries, Inc. ("Joshua") engaged in unfair labor practices in
considering Phillip White's lay-off. The case against Joshua was sev-
ered when Joshua filed for Chapter 7 bankruptcy. The Administrative
Law Judge (ALJ) found that District 17 violated 29 U.S.C.
§ 158(b)(1)(A) and (2) by maintaining and enforcing an agreement
with Joshua under which employee seniority at Joshua's mines was
to be based on the employee's length of membership in the union.
The ALJ also found that District 17 violated § 158(b)(1)(A) by
informing White that his seniority was to be calculated from the date
he joined the union and by refusing to arbitrate his grievance because
he had resisted and delayed joining the union. The ALJ's decision
was affirmed by the Board which now seeks enforcement of its final
order.

This Court, obligated to correct errors of law made by the Board,
"must sustain the Board's factual findings `if supported by substantial
evidence on the record considered as a whole.'" Virginia Concrete
Co., Inc. v. N.L.R.B., 75 F.3d 974, 980 (4th Cir. 1996) (quoting 29
U.S.C. § 160(e)).

I

White was employed by Joshua at mines #4 and #32, in Logan
County, West Virginia. At all times relevant to this suit, the United

                    2
Mine Workers of America (UMWA) was the exclusive representative
of Joshua's employees covered by the National Bituminous Coal
Wage Agreement ("NBCWA" or "collective bargaining agreement").
The NBCWA provided for two types of seniority: company seniority,
based on the employee's date of hire, and mine seniority, based on the
date when the employee began working at a particular mine.

White, hired by Joshua in April 1981 to work in #32, was super-
vised by Vernon Bender. Although the work performed by White was
covered by the NBCWA, White did not join the UMWA and was paid
on a salary basis. In February 1988, Sesco Sias and Jimmy Adkins,
the president and financial secretary-treasurer of the local UMWA
unit, presented Bender with a grievance which claimed that Joshua
had violated the NBCWA by employing two electricians on a salary
basis, when they should have been classified employees under the
NBCWA. To settle that grievance, Joshua agreed to place the two
electricians in the union on the condition that they be allowed to keep
their dates of hire as their seniority dates. When the local indicated
that White was also doing classified work on a non-classified basis,
Bender agreed to require White to join the union, asking only that
White, like the electricians, be permitted to maintain seniority from
his date of hire. Sias and Adkins agreed to that condition.

White attended his first union meeting in April 1988, and began
paying dues in June. One year later, two other non-union employees
who performed classified work, Boling and Castle, were brought into
the union under an agreement providing they were to retain their dates
of hire as their seniority dates.

In January 1990, Joshua closed #32, and opened #4, filling posi-
tions at #4 with laid-off workers from #32. Joshua and District 17
agreed that, at #4, company seniority would control in the event of a
lay-off. Laid-off at #32, White began to work at #4 mine, but by
August 1990, economic factors and poor mine conditions necessitated
lay-offs at #4. At that time, Sam Tiller, who replaced Bender as
superintendent of #32, and Harold Robertson, #4 superintendent,
announced that three miners, including White, would be laid-off and
stated that Boling would keep his hire-in date as his seniority date, but
White would not because White had not joined the union voluntarily.
Porter agreed to this action.

                    3
On August 16, 1990, White was informed that his seniority would
count from the time he joined the union. White then filed a grievance
concerning his lay-off and, on September 7, 1990, the third step in the
three-step grievance process under the NBCWA was held, at which
time Tiller questioned whether White's claim was timely. The
NBCWA required White to file his grievance within ten working days
of learning that his seniority had been calculated improperly. Tiller
noted that seniority lists had been posted at both #32 and #4 since
July 1988, and that White's name had been on the bottom of these
lists. Porter then determined that because White had not filed a griev-
ance in 1988, arbitration would be futile and informed White that the
union would not arbitrate his grievance. White filed his unfair labor
charge on November 15, 1990.

A hearing was held before an ALJ who found that Joshua and Dis-
trict 17 had "followed a practice of basing the seniority of classified
employees on date of membership in the Union," reasoning that "[i]f
the participants to those settlements had had reason to anticipate that
the NBCWA contract language concerning seniority would be applied
automatically, it should not have been necessary" to negotiate those
arrangements. The ALJ also considered whether White's grievance
was untimely and found that White should have known of the mistake
regarding his seniority in July 1988, but concluded that the timeliness
of White's grievance was irrelevant. He reasoned that any effort by
District 17 to pursue White's grievance would put it in conflict with
its own policy which unlawfully encouraged employees to join the
Union as a prerequisite to obtaining seniority.

The District appealed the ALJ's decision to the Board arguing that
White's unfair labor practice complaint was barred by the NLRA's
six month statute of limitations contained in § 10(b). The Board held
that nothing in the seniority lists put White on notice that District 17
was involved in determining his seniority date and that Porter had
stated that White began accruing seniority when he joined the union.
These statements constitute violations of 29 U.S.C.§ 158(b)(1)(A)
that occurred within the 10(b) period.

The Board, affirming the ALJ's decision, ordered District 17 to
cease and desist from its unlawful labor practices, awarded White

                     4
back pay and seniority from his date of hire, and now seeks enforce-
ment of that order.

II

District 17 states several objections to the Board's order.

The ALJ concluded that an unlawful agreement existed between
the union and Joshua concerning seniority and that the agreement was
enforced against White. The finding concerning the existence of the
agreement is supported by substantial evidence, namely the two
agreements expressly stating that the seniority of formerly salaried
employees would be calculated from their date of hire and testimony
indicating that Porter, and therefore District 17, was aware of and
approved of the unlawful agreement. In addition, substantial evidence
indicates that the agreement was enforced against White. Company
seniority controlled lay-offs at #4. White was originally hired by
Joshua in April 1981, and joined the union in June 1988. Boling was
hired in July 1985, and was brought into the union in April 1989. The
only way Boling could have kept his job at #4 while White was laid-
off would be to base his seniority on his date of hire and base White's
seniority on his date of membership in the union. Thus, the ALJ did
not err in concluding that the agreement existed or that it was
enforced against White.

Furthermore, the ALJ's legal conclusion that the maintenance and
enforcement of the agreement was unlawful was proper. 29 U.S.C.
§ 157 states:

          employees shall have the right to self-organization, to form,
          join, or assist labor organizations, . . . 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.

A union that restrains employees in the exercise of the rights provided
in § 157 commits an unfair labor practice.§ 158(b)(1)(A). Further-
more, a union that causes an employer to encourage union member-

                     5
ship "by discrimination in regard to hire or tenure of employment"
also commits an unfair labor practice. §§ 158(a)(3), 158(b)(2).

The NBCWA was a valid union security contract which required
White to join the UMWA to maintain his job and allowed an
employer to discharge an employee who is not a union member. How-
ever, "[n]o other discrimination aimed at encouraging employees to
join, retain membership or stay in good standing in a union is con-
doned." Radio City Officers' Union v. NLRB , 347 U.S. 17, 42 (1954).
District 17 has advanced no reason why White, having become a
union member, should not have his company seniority calculated
from his date of hire as the NBCWA provided.1 In fact, the agreement
to base the company seniority of previously salaried employees on
date of union membership discriminated against employees who
failed to join the union promptly and thereby unlawfully encouraged
union membership and restricted union members' right to abstain
from participation in union activities. For those reasons, it violated
§ 158(b)(1)(A) and (b)(2).2
_________________________________________________________________

1 District 17 states "it is clear that the reason [White's] seniority did not
begin to accrue prior to [1988] is that his classification (salaried
employee) was not covered by the Collective Bargaining Agreement."
However, that rationale was not clear to the ALJ. In fact, the ALJ con-
cluded that the agreement to base White's company seniority on his date
of union membership was contrary to the NBCWA. On questions of law,
like this contract interpretation issue, "appellate review of the Board's
decision is plenary, although that decision is entitled to deference due to
the Board's expertise in labor matters." 88 Transit Lines, Inc. v. NLRB,
55 F.3d 823, 825 (3d Cir. 1995). This Court finds no error in the ALJ's
apparent rejection of District 17's argument.

2 See also Teamsters Local Union No. 42 v. NLRB, 825 F.2d 608, 614
(1987), in which, under similar circumstances, the First Circuit declared
that "a union may not, without a legitimate purpose, take action favoring
some of its members at the expense of others." Here, once formerly sala-
ried employees became union members, they were entitled to be treated
in the same way as all other union members. District 17's agreement to
calculate their company seniority less favorably than the company
seniority of other members constitutes unlawful preference without a
legitimate reason.

                     6
By enforcing the agreement against White, the union unlawfully
encouraged union membership. The record indicates that five employ-
ees performed classified work for a salary. The union accorded those
employees, except White, with seniority from the date of hire because
White hesitated to join the union. §§ 158(a)(3) and 158(b)(2) "allow
employees to freely exercise their right to join unions, be good, bad,
or indifferent members." Radio Officers' Union v. NLRB, 347 U.S.
17, 40 (1954).3 By enforcing this agreement against White only, Dis-
trict 17 encouraged members not only to join the union as required
by the NBCWA but to do so voluntarily. This action constitutes
unlawful encouragement of union membership.

District 17 next objects to the ALJ's award of back pay to White.
29 U.S.C. § 160(c) authorizes the Board, upon finding that a party
engaged in an unfair labor practice, "to take such affirmative action
including reinstatement of employees with or without back pay, as
will effectuate the policies of this subchapter." The Board's broad
remedial power authorizes it to compensate employees for losses suf-
fered as a result of an unfair labor practice. NLRB v. Strong, 393 U.S.
357, 359 (1969).4

In Strong, 393 U.S. 357 (1969), the Board found an employer's
failure to sign a particular collective bargaining agreement was an
unfair labor practice and ordered the employer to pay the fringe bene-
fits for which it provided. The Supreme Court enforced the Board's
order, stating:
_________________________________________________________________

3 See also NLRB v. Manitowoc Engineering Co., 909 F.2d 963, 970
(7th Cir. 1990), cert. denied, Clipper City Lodge No. 516 v. NLRB, 498
U.S. 1083 (1991) (provision of collective bargaining agreement which
encouraged union members to participate in union activities unlawfully
encouraged union membership in violation of #8E8E # 158(a)(3) and (b)(2)).

4 See also NLRB v. Rutter-Rex Mfg., Co., 396 U.S. 258, 263 (1969)
(power to order the remedies authorized by § 160(c) "is for the Board to
wield, not for the courts"); ABF Freight System, Inc. v. NLRB, 114 S. Ct.
835, 839 (1994) (courts must give NLRB's decision controlling weight
unless that decision is "arbitrary, capricious, or manifestly contrary to the
statute").

                     7
          The act of refusing to sign the collective bargaining agree-
          ment may not have been a breach of contract, but it was an
          unfair practice. Once adjudicated, it could be remedied by
          a Board order requiring payment of those fringe benefits
          which would have been paid had the employer signed and
          acknowledged the contract which had been duly negotiated
          on his behalf.

Id. at 362. Here, the ALJ found that District 17 committed an unfair
labor practice when it entered into the unlawful agreement. If District
17 had not done so, White's seniority would not have been calculated
from the date of union membership, and he would not have been laid
off. The Board's award of back pay to White merely compensates
White for his loss. The fact that the terms of the collective bargaining
agreement may not have required Joshua to correct its calculation of
White's seniority is not dispositive. Instead, the Board has broad
power to remedy a practice which it has found is unfair.

District 17 next objects that it was not required to arbitrate White's
grievance because the district had concluded that it lacked merit.
While a union has no duty to arbitrate a meritless grievance, a union
may not refuse to arbitrate a grievance for a discriminatory reason. A
union breaches its statutory duty of fair representation, and commits
an unfair labor practice, when its conduct toward a member of the
collective bargaining unit is "arbitrary, discriminatory, or in bad
faith." Vaca v. Sipes, 386 U.S. 171, 186, 190 (1967). The ALJ found
that, even before Joshua raised the issue of the timeliness of White's
grievance, District 17, through Porter, reaffirmed the union's unlaw-
ful agreement regarding seniority by asserting that White's seniority
should be calculated from the date of his entry into the union. Such
action on the part of District 17 was discriminatory and was therefore
an unfair labor practice.

District 17's remaining objections require little discussion. The dis-
trict objects that the ALJ mistakenly recognized a classification of
"contract-classified work" under the NBCWA. The ALJ did in fact
refer to "contract-classified work", but apparently used that term as a
short-hand way to refer to classified work performed by salaried
employees.

                    8
District 17 also argues to this Court, as it earlier argued to the
Board, that White's unfair labor practice charge is time-barred. For
the reasons noted by the Board and the ALJ, this Court finds that
White's charge is not time-barred.

District 17 next argues that the ALJ incorrectly found that, in all
events relevant to this litigation, the local unit acted as an agent of
District 17. We need not decide this issue because the ALJ used
agency principles to support his findings concerning the oral agree-
ment only and then only as an alternative basis of liability. As dis-
cussed above, the record contains substantial evidence, independent
of the agency theory, indicating that Porter approved of the unlawful
agreement and its enforcement against White.

Finally, District 17 states that the ALJ "cites the district for animus
based upon . . . various complaints by local union officials against
Harold Porter." District 17 is apparently referring to certain letters
written by Allen Adkins in March 1992 expressing dissatisfaction
with Porter. Far from basing any finding of discrimination on those
letters, the ALJ expressly stated, "There is no evidentiary basis or
need to resolve questions raised by these letters in order to reach a
determination herein."

We find that the Board's decision is consistent with the law and is
supported by substantial evidence in the record. For that reason, the
Board's order is

ENFORCED.

                     9
