Mine Workers Local 9639 (Beth-Elkhorn)

National Labor Relations Board - Board Decisions

Jun 18, 1987

284 N.L.R.B. 323 (N.L.R.B. 1987)

MINE WORKERS LOCAL 9639 (BETH-ELKHORN) 323
Local Union No. 9639, United Mine Workers of
America and Local Union No. 5741, United
Mine Workers of America (Beth-Elkhorn Cor-
poration) and Tommy E. Cook. Case 9-CB-
4482-2
18 June 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 22 April 1986 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent Local 5741 filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, fmdings, 1 and
conclusions and to adopt the recommended
Order.2
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge found, and we agree, that Respondent Local 5741 became a
successor to Respondent Local 9639 with knowledge of its backpay li-
ability and is jointly and severally liable for the balance of backpay due
diScriminatee Cook. In finding Local 5741 to be a successor labor organi-
zation, the judge relied on: (1) Local 574I's assumption of Local 9639's
representation obligations with respect to the same employees at the same
location; (2) Local 5741's administration of the same collective-bargaining
agreement without any hiatus; (3) the Maintenance of some continuity of
leadership by Local 5741's retention of essentially the same mine and
safety committees; (4) the expression of Local 9639's members' desires by
their requests to transfer to Local 5741; and (5) Local 5741's succession
to the only shown asset of Local 9639—the future dues obligations of its
former members. We adopt the judge's reasoning in all respects.
We specifically reject the Respondent's contention that the judge's
finding number (5) above is contrary to the parties' stipulation that no
money or property of Local 9639 was transferred to Local 5741. In con-
text, we find that the stipulation addresses the nature of the relationship
between the two locals at the time of the transfer. The stipulation does
not encompass future dues obligations or decide the question whether
they constitute an asset. It is undisputed that Local 5741 has received the
benefits of the union dues paid by the former Local 9639 members. We
conclude that the judge properly found such dues payments constituted
an asset to which Local 5741 succeeded and that his finding did not con-
travene the parties' stipulation
The phrase "both house talk" in sec. B of the judge's decision should
read "bath house talk" We also note that 29 additional retired members
of Local 9639, not 25 as stated by the judge, transferred to Local 5741 by
21 July 1983.
2 Interest on backpay shall be computed as prescribed in Florida Steel
Corp, 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Local Union
No. 5741, United Mine Workers of America,
Letcher County, Kentucky, its officers, agents, and
representatives, shall take the action set forth in the
Order.
Andrew L. Lang, Esq., for the General Counsel.
James R. Hampton, Esq., of Hazard, Kentucky, for Re-
spondent Local 5741.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HuTroN S. BRANDON, Administrative Law Judge. On
27 February 1981 the Board issued its order in this pro-
ceeding adopting, in the absence of exceptions, a decision
of an administrative law judge fmding that Local Union
No. 9639, United Mine Workers of America (Local 9639)
had violated Section 8(b)(1)(A) and (2) of the Act by
causing Beth-Elkhorn Corporation to constructively dis-
charge Tommy E. Cook on 30 August 1979. The Board
adopted the judge's recommended Order that required
Local 9639, its officers, agents, and representatives, to
make Cook whole for any loss of earnings or other bene-
fits he suffered as a result of the unlawful discrimination
against him. On 31 July 1981 the Regional Director for
Region 9 of the Board issued a backpay specification and
notice of hearing alleging that the backpay due Cook
under the Board's order was $12,327.65, plus interest.
Thereafter on 4 June 1982 Local 9639, Cook, and the
General Counsel entered into a stipulation and motion to
transfer the case to the Board with respect to the back-
pay due. The Board in a supplemental order dated 8 July
1982 approved the stipulation that also provided for the
entry of a consent judgment by any appropriate United
States court of appeals. The Board's supplemental order
was enforced by the United States Court of Appeals for
the Sixth Circuit on 19 August 1982.
On 3 September 1982 Local 9639 filed a petition in
bankruptcy under Chapter 7 (liquidation) of Title 11
United States Code. The United States Bankruptcy
Court, Eastern District of Kentucky (Pikeville division)
appointed a trustee for liquidation of Respondent's as-
sests, and the Board, on behalf of Cook, filed a proof of
claim in the bankruptcy court. 1 The assets of Local
9639's estate in the amount of $2,102.63 were paid to
Cook by order of the bankruptcy court entered on 31
July 1985. The remaining debt owed to Cook was not
discharged by the bankruptcy court.
On 4 December 1985 the Regional Director for
Region 9 of the Board issued an order directing supple-
mental hearing and notice of hearing in which it was al-
leged that questions of fact had arisen concerning the re-
lationship between Local 9639 and Local Union No.
5741, United Mine Workers of America (Local 5741).
1 Case 82-00098.
284 NLRB No. 47
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The issue framed by the order directing supplemental
hearing and Local 5741's answer thereto is whether
Local 5741 is jointly and severally liable with Local 9639
for the balance of backpay due Cook, as a successor
labor organization of Local 9639. The matter came to
hearing on 27-28 February 1986 at Pikeville, Kentucky.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and Local 5741, I
make the following
FINDINGS OF FACT
I. THE MATERIAL FACTS
The significant facts in this case are not in dispute.
Local 9639 represented certain employees of Beth-Elk-
horn Corporation at its mines 21 and 22. A collective-
bargaining agreement covering these employees, the Na-
tional Bituminous Coal Wage Agreement of 1981
(NBCWA) was negotiated by United Mine Workers of
America (the International). The agreement was adminis-
tered more directly by Local 9639 at the local level.
Dues of unit employees were deducted by Beth-Elkhorn
pursuant to employee checkoff authorizations and were
remitted in the name of Local 9639 to District 30, United
'Mine Workers of America (District 30). It is clear that
Local 9639 was a constituent part of the District. It was
among the duties of District 30 to divide the dues paid
remitting a third to Local 9639, another third to the
International, and keeping a third for itself.
The parties stipulated that on discovery that Local
9639 would not obtain a discharge of the debt owed to
Cook on 27 September 1982, Local 9639 withdrew its
motion in bankruptcy court, filed about 7 September
1982, for authority to continue to operate. Thereafter,
Local 9639 ceased to function and later surrendered its
charter to the International. The General Counsel and
counsel for Local 5741 further stipulated that between 21
October and 9 November 1982, all the approximately 55
working members of Local 9639 transferred their mem-
bership into Local 5741 and by 23 November 1982 ap-
proximately 190 out of 243 idle or retired members of
Local 9639 also transferred their membership to Local
5741. By 21 July 1983, 25 additional retired members of
Local 9639 transferred into Local 5741, Nineteen addi-
tional retired members transferred into other locals of
the International. It was further stipulated that at the
time of these transfers, Local 5741 through its president,
Bill Baker, knew that Local 9639 had been found in vio-
lation of the National Labor Relations Act by causing
the constructive discharge of Tommy Cook by Beth-Elk-
horn and was under an order to pay backpay to Cook,
and that, as a result of that financial liability, had filed
bankruptcy and ceased to function. The parties agreed
that no money or property of Local 9639 was transferred
to Local 5741.
Local 5741 was an older local than Local 9639 and at
the time of the transfers from Local 9639, Local 5741
had approximately 132 active and 356 inactive members.
Inasmuch as no transfer fee is required for transfer of
membership from one local to another within the Inter-
national, no such fees were paid by the members of
Local 9639 on transferring into Local 5741. Further-
more, such transferees did not execute new dues-deduc-
tion authorization cards in behalf of Local 5741. Beth-
Elkhorn continued to remit dues to District 30 for
former Local 9639 members who had transferred into
Local 5741. These remissions were in the name of Local
9639 until at least December 1982 when, by letter dated
27 December 1982, Bobby Roy Justice, secretary-treasur-
er of District 30, advised Beth-Elkhorn that Local 9639
men had transferred into Local 5741 and requested that
in the future their dues and assessments be submitted
under the name of Local 5741. It was stipulated that
those dues remitted by Beth-Elkhorn under the name of
Local 9639, after that local ceased to operate and before
Justice's 27 December letter, were not returned to Beth-
Elkhorn by District 30. Local 5741 admitted that it had
received the benefits of the union dues paid by the
former members of Local 9639.
Local 5741 further admitted at the hearing that at all
times since the transfer of the former members of Local
9639, Local 5741 has acted as the collective-bargaining
representative of such employees of Beth-Elkhorn at
mines 21 and 22 and had assumed the rights and obliga-
tions incidental the administration of the collective-bar-
gaining agreement. It was stipulated that no Local 9639
officers became officers of Local 5741 on transfer of
their membership until 1984 when Randy Robbins,
former recording secretary of Local 9639, was elected
vice president of Local 5741. However, Local 9639 had
three members on a mine committee at mine 21 and an
equal number on a safety committee at that mine, all of
whom were reappointed to those positions by the presi-
dent of Local 5741 on the transfer of Local 9639 mem-
bers into that local. The same was true of the one mine
committee member and one safety committee member
utilized at mine 22. It was the duty of the mine commit-
tee to see to the adjustment of disputes arising under the
collective-bargaining agreement while the function of the
safety committee was to promote employee concerns re-
garding mine health and safety and to inspect and ensure
safe working conditions.
District 30 was also substantially involved with the
local union's representation of members both in process-
ing of grievances and in other miscellaneous matters. For
example, under the NBCWA, the District was involved
in the grievance procedure for the settlement of disputes
including discharges. Moreover, as pointed out by the
General Counsel's brief, article V, section 3, of the con-
stitution of District 30 provides:
The District Executive Board shall be responsible
for implementing and administering collective-bar-
gaining agreements covering any member of the
District, taking all necessary and appropriate meas-
ures to ensure that it is fairly applied, fully en-
forced, and faithfully obeyed.
The same constitution also calls for district executive
board members and field representatives to aid in the ad-
ministration of all collective-bargaining agreements and
to aid and advise local unions in various matters includ-
ing the accounting and handling of union funds and the
MINE WORKERS LOCAL 9639 (BETH-ELKHORN)

325
administration of affairs of the local unions. There was
record testimony that District Field Representative Bill
Looney assisted members of Local 9639 in their transfer
into Local 5741 and was present at a membership meet-
ing of the latter local when the transfers were discussed
on 9 October 1982. More specifically, Randy Robbins,
recording secretary for Local 9639, testified that he filled
out the transfer cards for the individual members of the
Local and put the seal of the Local on them. Robbins
then turned the cards over to Looney who completed
the execution of the cards and distributed them to the
members when they asked for them. Moreover, Jerry
Puckett, former president of Local 9639, testified that it
was Looney who told Local 9639 members that it would
be best to go into Local 5741 because it was closest geo-
graphically to them. Nevertheless, the record does not
establish a definitive group decision for the transfer of
employees from Local 9639 to Local 5741. Rather, a
consensus of the testimony is that as a result of "both
house talk," former Local 9639 members individually
concluded that Local 5741 was the most reasonable
union to transfer into inasmuch as it was closest geo-
graphically to them and the mines in which they
worked.2
It is undisputed that Local 5741 took over the repre-
sentation of Local 9639's former members at Beth-Elk-
horn's mines 21 and 22 without any hiatus. In short,
Local 5741 administered the same contract previously
administered by Local 9639. Moreover, according to the
testimony of Local 9639's former president, Jerry Puck-
ett, Local 5741 processed grievances of employee mem-
bers of Local 9639 that were in existence prior to the
time of the transfers.
William R. Back, recording secretary for Local 5741,
testified that he had no alternative but to accept the
transfers of Local 9639's men since each transfer had the
seal of Local 9639 on it as well as the signature of the
member seeking the transfer. Local 5741's President
Baker testified that a transfer slip would be issued a
member seeking to transfer into another local unless it
appeared that member was continuing to work within
the jurisdiction of the local union from which the trans-
fer was sought.
II. CONTENTIONS OF THE PARTIES
The General Counsel concedes there appears to be no
precedent precisely controlling in this case. However,
the argument is made that a number of Board decisions
on facts similar to those in the instant case have indicat-
ed the Board's willingness to impose on a successor
union the liability for remedying the unfair labor prac-
tices of its predecessor. Two cases cited to support this
argument were Carpenters Local 2565 (Ambassador Vene-
tian Blind), 110 NLRB 780 (1954), and Iron Workers
Local 600 (Bay City Erectors), 144 NLRB 1049 (1963).
Both cases, however, as Respondent's brief points out,
involve facts from which the Board could and did con-
2 It was clear that to retain International membership it was necessary
for all the employees to transfer into the same local, for art. 10, sec. 4, of
the International constitution provides that "No mine shall be under the
jurisdiction of more than one Local Union."
dude that the new unions were simply disguised continu-
ances or alter egos of the unions that were initially re-
sponsible for the unfair labor practices. In a third case
cited by the General Counsel, Metallic Lathers Local
Union 46 (Cement League), 259 NLRB 70 (1981), enf.
denied 727 F.2d 234 (2d Cir. 1984), the Board, applying
its Perma Viny13 doctrine for the first time to labor orga-
nizations, concluded that United Brotherhood of Carpen-
ters were obligated to remedy the unfair labor practices
of the Lathers Union that had affiliated with the Carpen-
ters after the commission of the unfair labor practices,
the Carpenters having had knowledge of the unfair labor
practices prior to the affiliation. The Perma Vinyl doc-
trine holds that a bona fide successor employer who has
knowledge of a pending unfair labor practice by a prede-
cessor at the time of its purchase of the predecessor's
business must be responsible for remedying those unfair
labor practices. Although the court in, Metallic Lathers
Local 46, supra, refused to enforce the Board's decision,
it did so only because of its disagreement with the
Board's findings that the Carpenters' Union was aware of
the pendency of the unfair labor practice matter at the
time of the affiliation.
The General Counsel asserts that liability should be
imposed here against Local 5741 particularly because
Local 9639 filed its petition in bankruptcy specifically to
escape its backpay obligation to Cook. Moreover, Local
5741 as well as District 30 was aware of the backpay ob-
ligation at the time of the membership transfer in Local
5741 was effectuated.
Local 5741 raises a number of arguments in its defense.
First, it asserts that the Board's order in the decision
against Local 9639 did not run to the successors or as-
signs of that local. Accordingly, it concludes that no li-
ability can be imposed on Local 5741 even if it is found
to be a successor. Second, it contends that Local 5471
cannot be a successor because Local 9639's assets were
liquidated in bankruptcy proceedings. Where there are
no assets, there can be no successorship. Third, it con-
tends that members of Local 9639 cannot be held liable
for the Local's actions, and because Local 9639 has
ceased to exist, regardless of its motivation in dissolving,
any attempt to assess further liability would be tanta-
mount to holding the individual members liable. Fourth,
Local 5741 argues that in any event, even if it is a suc-
cessor under court precedent, it cannot be held liable
beyond the value of assets received from Local 9639. Be-
cause Local 5741 received no such assets, no liability can
be imposed. Finally, Local 5741 contends that it is nei-
ther an alter ego, disgnised continuance, nor successor to
Local 9639 and that under all the circumstances of this
case an imposition of 9639's debt on Local 5741 would
constitute an unfair hardship on it not justified by any
national policy.
III. CONCLUSIONS
Local 5741's initial defense that the Board's initial
order in this case does not extend to successors appears
3 Perma Vinyl Corp., 164 NLRB 968 (1967), enfd. sub nom. United
States Pipe & Foundry Co. v. NLRB, 398 F 2d 544 (5th dr. 1968).
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to have been answered in the Ambassador Venetian Blind
case, supra. There, the Board, largely relying on South-
port Petroleum Co. v. NLRB, 315 U.S. 100 (1942), and
Regal Knitwear Co. v. NLRB, 324 U.S. 9 (1945), held that
if a party may probably be characterized as a successor
or disguised continuance of the party against whom the
original Board order was issued, it may be held liable
under the order even in the absence of language in the
order extending to successors and assigns. Thus, the de-
termination of whether a party falls within the scope of a
Board order is dependent on its relationship to the party
against whom the order clearly runs rather than on the
construction of the literal terms of the order. According-
ly, I conclude that the failure of the Board's original
order in the instant case to extend to "successors or as-
signs" does not in itself preclude liability of Local 5741 if
it is found to be a successor to Local 9639.
The second argument of Local 5741 is premised on the
liquidation of Local 9639. There being no surviving
assets from the bankruptcy liquidation, the argument
goes, there can be no successorship. For support of this
proposition, Local 5741 relies on Seeburg Corp. v. NLRB,
105 LRRM 3355 (D.C. Ill. 1980). The argument, howev-
er, presumes that a succession to physical assets is a pre-
requisite to establishing successorship status. Such a pre-
sumption may be valid in application in a bankruptcy
proceeding involving employers as in Seeburg Corp.
However, it would clearly have no application in situa-
tions involving a union's disguised continuance of a prior
labor organization dissolved to evade its obligations. See,
e.g., Iron Workers Local 600, supra. Likewise, it would
appear to have little application in union successorship
situations where, as here, one union succeeds not only to
the status of collective-bargaining representative of em-
ployees formerly represented by the predecessor but also
to administration of the same collective-bargaining agree-
ment formerly administered by the predecessor.
Contrary to Local 5741's third argument, a fmding of
successorship under the circumstances of this case does
not render members personally liable for the unlawful
actions of the predecessor. It is true that it is the union
itself and not its individual members that must respond
for union wrongs. Atkinson v. Sinclair Refining Co., 370
U.S. 238 (1962). But imposing on a successor union the
liabilities of a predecessor does not constitute the imposi-
tion of liability on individual members. For this reason,
Steelworkers Local 14055 (Dow Chemicals), 229 NLRB
302 (1977), and Dixie Carriers v. Maritime Union, 57
LRRM 2175 (S.D. Tex. 1964), cited by Local 5741 are
inapposite. In neither case was a successorship found.
Local 5741 sees Teamsters v. Buffalino, 121 LRRM
2365 (E.D. Mich. 1985), as substantiating its fourth argu-
ment that even if it is deemed a successor, Local 5741
could be liable for the predecessor's backpay obligation
only to the extent of the assets it received from that
local. Since no assets were assumed, no liability can
attach. In deciding the cited case, the court held that a
joint council of the International, as interim successor,
was liable for the just debts of the local union whose
charter had been revoked, but it limited such liability to
the extent of the assets received from the local. This lim-
itation, it appears, was based on an analogy drawn by an
earlier court in Lawless v. Painters, 300 P.2d 1591 (1956),
to cases involving a transfer by a corporation of its assets
to a successor corporation without a merger. In that situ-
ation, a creditor can trace only the transferor's physical
assets in the hands of the transferee. Moreover, the court
in Buffalina, although following the Lawless analogy and
result, further supported its own decision with the obser-
vation that the holding was consistent with a provision
in the International union's constitution in that case as-
serting that the international was not responsible for the
obligations of a subordinate body that surrendered its
charter. No such constitutional provision has been cited
as applicable in the instant case. Further, the court in
Buffalino was not faced with the frustration of the effec-
tuation of a remedy for a violation of a statute as here.
Application of Buffalino here would result in exactly that
frustration and, accordingly, I find that it is not control-
ling.
In addition, and in any event, I find merit in the Gen-
eral Counsel's counter argument to Buffalino that the
future dues obligations of the members of Local 9639
constituted a major asset to which Local 5741 succeeded.
Dues payments of its members are the economic life
blood of a labor organization and normally its primary
source of income. Succession to dues obligations in a
very real sense is a substantial asset. Indeed it was a
stake created by the collection of dues by the interim
successor in the Buffalino case that was the subject of
the litigation there. The dues of the members herein
were like the dues of the members in Buffdino, an obli-
gation of membership. (Art. XIII, UMWA constitution.)
Local 5741 even received its share of the dues checked
off from the former Local 9639 members without the ne-
cessity of new checkoff authorizations, the original
checkoffs having been executed in the name of the Inter-
national. Under these circumstances, Local 5741's share
of the future dues payment of former Local 9639 mem-
bers qualifies as a valid asset. Therefore, even if the Buf-
falino holding is applicable here to otherwise limit Local
5741's liability to the extent of Local 9639's assets, I find
that such assets would include the future dues payment
of the latter Local's former members.
I concur in Local 5741's fifth argument that it is not
an "alter ego" or "disguised continuance" of Local 9639.
Local 5741 was, the record shows, an older and larger
local. Former members of Local 9639 were outnumbered
by the regular Local 5741 members by 2 to 1. The offi-
cers of Local 5741 were not the same or even substan-
tially the same as those of Local 9639. And there was no
merger, consolidation, or affiliation action here involved
that might establish a "continuation" of the old entity.
Cf. National Carbon Co., 116 NLRB 488, 500-502 (1956);
American Enka Co., 231 NLRB 1335, 1336 (1977). All
these circumstances taken together militate against a
fmding of an alter ego or a disguised continuance.
The foregoing does not prevent the finding of the ex-
istence of a successorship, however. No cases have been
cited herein or otherwise ascertained through research
that presents facts precisely paralleling the facts in the in-
stant case and controlling it. Nevertheless, the Board in
Teamsters Local 294 (Graham Ford), 188 NLRB 515, 518
MINE WORKERS LOCAL (BETH-ELKIIORN) 327
(1971), did outline the factors considered in establishing
union successorships stating:
In deciding whether a union is a successor [to an-
other union in any particular unit], the Board looks
to a number of factors, including whether demo-
cratic procedures have been followed in any vote
on affiliation or merger, whether the new organiza-
tion has succeeded to the assets and liabilities of the
predecessor, whether the employees in the bargain-
ing unit have had an opportunity to register their
desires, and whether there is a continuity in the
leadership and representation of the employees in
the bargaining unit.
And in Lord Jim's, 259 NLRB 1162, 1164 (1982), the ad-
ministrative law judge concluded, with apparent Board
approval, that in union successorship cases "the primary
concern" is whether the employees in the unit had an
opportunity to pass on the change of representative.
The foregoing factors or criteria are most readily ap-
plied in merger or affiliation situations not present in the
instant case. However, as already discussed, Local 5741
succeeded to the only shown asset of Local 9639, the
future dues obligation of its membership. Moreover, it
succeeded to the representation obligations of Local 9639
in the same bargaining unit of the same employees oper-
ating at the same location of the same employer. Local
5741 assumed Local 9639's jurisdiction under the same
International union in the same district subdivision. It
succeeded, too, in administering the same collective-bar-
gaining agreement with no changes whatsoever and ap-
parently without any hiatus in representation. It even
processed grievances originally filed with Local 9639.
Although the officers of Local 5741 were not the same
as those of the other local, some continuity in leadership
was maintained in the retention and reappointment of es-
sentially the same mine committees and safety commit-
tees at both Beth-Elkhorn's mines 21 and 22. And with
respect to the "primary concern" in union successorship
cases, although there was no evidence of a formal vote
among Local 9639's members concerning their desires to
transfer into Local 5741, it is quite clear that they indi-
vidually sought transfer into Local 5741 with the assist-
ance, if not direction, of District 30, and in that manner
"registered" their desires.
Considering all the foregoing, I am persuaded that
Local 5741 is a successor to Local 9639. I further find
that Local 5741 had knowledge of the outstanding unfair
labor practice violation by the predecessor union prior to
the time it achieved successorship status. I find unpersua-
sive and thus do not credit the testimony of Local 5741's
president Bill Baker to the effect that he believed at the
time of the transfers of the former Local 9639 members
that the backpay liability of that local was discharged by
the bankruptcy proceedings. Given the fact that the par-
ties herein stipulated that the bankruptcy proceeding was
filed because of the backpay obligation owed Cook, had
such debt been discharged, there would not have been
no need for dissolution of Local 9639 and the transfer of
its members into Local 5741. Thus, it would have been
unreasonable for Baker to expect otherwise.
Because Local 5741 had knowledge of the backpay ob-
ligation owed to Cook, the Board's principles announced
in Metallic Lathers Local 46, supra, and Perma Vinyl,
supra, are fully applicable here. Local 9639 is no longer
a viable organization capable of remedying its violation
of the Act. The employing enterprise here has not
changed insofar as Cook, the victim of Local 9639's past
unfair labor practice, is concerned, nor has the need for
remedying the unfair labor practice. Local 5741 is not
only the best but also the only organization capable of
remedying the violation of Local 9639. As the successor
to Local 9639, I conclude that it must do so.
Contrary to the arguments of Local 5741, I fmd no na-
tional labor policy against imposing liability against it in
this case as a successor. Whatever hardship results from
the finding of liability on Local 5741's part, which I
make here, must be subservient to the damage caused to
the victim of the predecessor's unfair labor practice. As
was recently noted in NLRB v. Jarm Enterprises, 785
F.2d 195 (7th Cir. 1986), citing Pepsi-Cola Bottling Co. v.
NLRB, 414 U.S. 168 (1973), the basis for the Perma Vinyl
principle is not focused on the conduct of the successor,
but rather the need to prevent mere changes in title to
business from frustrating national labor of policy remedy-
ing unfair labor practices. It is true, unlike in employer
successorship situations, Local 5741 could make no "ad-
justment in purchase price" to compensate for the back-
pay obligation of the predecessor. However, it was not
compelled to assume representation of former Local
9639's members with their employer, and may not in
equity now escape that Local's remedial obligations of
which Local 5741 was aware.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Local Union No. 5741, United Mine
Workers of America, as successor to Local Union No.
9639, United Mine Workers of America, Letcher
County, Kentucky, its officers, agents, and representa-
tives, shall make whole Tommy E. Cook with interest
for any unpaid balance of the backpay obligation arising
out of the Board's supplemental order in Case 9-CB-
4482-2 dated 8 July 1982.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.