Anaconda Insulation Co.

National Labor Relations Board - Board Decisions

Jul 11, 1990

298 N.L.R.B. 1105 (N.L.R.B. 1990)

ANACONDA INSULATION CO. 1105
Anaconda Insulation Company and Ralph Bruce
Piper. Case 10-CA-23991
July 11, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 4, 1989, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent 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, findings, and
conclusions ' and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Anaconda Insulation Company, Chatta-
nooga, Tennessee , its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
Add the following as paragraph 2(e).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
' Member Cracraft concurs in the result. She would find a violation
here under either the approach applied by the Board in its decision in
Business Services by Manpower, 272 NLRB 827 (1984), enf. denied 784
F.2d 442 (2d Cir. 1986), or under the balancing test applied by the
Second Circuit in that case.
2 We have modified the recommended Order to include the standard
provision requiring the Respondent to notify the Regional Director in
writing within 20 days from the date of this Order what steps it has taken
to comply,
Frank F. Rox Jr., Esq., for the General Counsel.
William P. Hutcheson, Esq., of Chattanooga, Tennessee,
for the Respondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON , Administrative Law Judge.
This matter was heard in Chattanooga, Tennessee, on
May 24, 1989 . The complaint issued on March 31, 1989.
It was based on a charge filed on March 3, and amended
on March 24, 1989.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act (Act) by
discharging its employee, Ralph Bruce Piper, because he
engaged in concerted activities.
All parties were given the opportunity to file briefs.
The deadline for briefs was finally set at July 19, 1989.
Briefs were filed by General Counsel and Respondent.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering briefs
filed by the parties, I make the following determinations.
Respondent admitted the commerce allegations of the
complaint. Respondent admitted that it is engaged in the
distribution, contracting, and installation of insulation,
with an office located in Chattanooga, Tennessee, and
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Respondent, among other things, request, in its
answer, "costs and attorney fees as provided by applica-
ble law." That request is premature and is denied.
The Discharge Allegation
General Counsel alleges that Respondent discharged
Ralph Bruce Piper because he refused to cross a picket
line and report for work with Respondent on December
14, 1988. On that day Piper was assigned to work for
Respondent at their job at Central Soya, After a lockout,
Teamsters Local 515 established a picket line on the
Central Soya job. There is a dispute as to whether the
picket line was up on December 14, 1988, there is a dis-
pute as to whether Piper was fired by Respondent or
whether Piper quit his job and there is a dispute as to
whether Respondent would have been justified in dis-
charging Piper in any event.
Ralph Piper testified that he worked for Respondent
as a insulator mechanic beginning October 1988.
Piper recalled that he phoned in between 7 and 7:30
a.m., on December 14 and that he was told to report to
the Central Soya job by Ron Sampson:
Well, I pulled in the front gate. There was about
four or five men standing around a barrel that was
burning and they was three or four signs laying
around too, said they was on strike. And, I pulled
up to the front gate and one of the men walked out
toward the car and I told him what company I was
from, told him what I was there to do, and asked
him if it would interfere with his strike if I went
across that line, if it would interfere with them and
he said yes, it would. So, I turned around and-
Well, I called the shop, (my supervisor Ron
Sampson) picked up the phone, and I told him what
went on. I told him I went over to the job site and
they [sic] was a strike out front and I told him that
I didn't really want to cross the line because I, you
know, I've got a wife and two kids and I didn't feel
like, you know, I didn't want to jeopardize their
safety or nothing like that crossing a picket line and
taking somebody else's job. So, I told him, you
know, that I didn't feel like it was the thing for me
to do.
Q. What did Mr. Sampson say?
298 NLRB No. 168
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A: Well, he told me he didn't give a shit about
the union and he'd been over there earlier that day,
if I didn't go over there to that job that he guessed
that I quit. And, I told him that I didn't quit, I
just-he could send me to another job if he had it.
And, he said, well, that's all I've got for you, I
guess you quit, and he hung up the phone on me.
Piper testified that Respondent was operating other
jobs on December 14 and that they could have sent him
to one of those jobs. According to Piper, Respondent
was working a job at "Baylor" in Chattagnooga, and,
if I ain't mistaken, they [sic] was one at the National
Guard Armory, the old Sears Building . And there
was a couple more. I just can't remember off the
top of my head.
Piper recalled there was also a job at the Ulewah Ele-
mentary or Middle School in Etowah.
Piper returned to Respondent at some point after De-
cember 14 and talked to Ron Sampson. Piper testified:
When I walked in I asked them for my check and
he was standing there and I asked him for-I said
you owe me a pink slip or something saying wheth-
er you fired me or whatever you want to put on it
because, you know, I said you owe me something.
He said I don 't owe you damn thing , said you can
take it to the Labor Board or whatever you want
to.
George Blalock, business agent with Teamsters Local
515, testified that Local 515 was involved in a labor dis-
pute at Central Soya. Some 3 weeks after their collec-
tive-bargaining agreement expired in 1987 the employees
at Central Soya were locked out.
The lockout started on or about April 20, 1987. Local
515 erected a picket line at the Central Soya site. The
Local continued to maintain a picket line at Central Soya
until after December 14, 1988. According to Blalock the
picket line continued until December 18, 1988-(note: In
response to Respondent's questions at Tr. 71, Blalock tes-
tified that the picket line continued until January 18,
1989. On that same 'page it appears that the testimony
was corrected to show that date as December 18, 1988).
Charles Lewis testified that he was the picket line cap-
tain for Local' 515 at the Central Soya site on December
14, 1988. Lewis recalled Ralph Bruce Piper on that day.
Penny Jeffrey testified that she works for Respondent
in their offace.'Jeffrey testified that Piper quit on Novem-
ber 8, 1988, after starting work for Respondent in Octo-
ber 1988. Jeffrey recalled that Piper came in to the office
and:
The first time I talked to him was on November the
8th when he came in and told me he was quitting.
He was working at Tivilly, and he told me he was
quitting because he didn't like the foreman, Benny
Clarkston I believe. He said he was doing all of his
work and Benny was walking around inventorying
material all day.
Jeffrey also testified about the incident on December
14, 1988. Jeffrey overheard Sampson talking to Piper.
She overheard Sampson's comments but could not hear
Piper on the other end of the phone line.
Superintendent Ronald Sampson testified that Re-
spondent had the following jobs and employees on De-
cember 14, 1988:
South Fulton High-or South Fulton Hospital in
Atlanta, Georgia I had three people. Georgia Train-
ing and Development Center in Buford, Georgia, I
had four people. Coca-Cola Bottling Company or
Bottling Plant in Cleveland, Tennessee, I had two.
Central Soya, I had two. Dow Chemical, one.
Utewah Middle School, three.
Superintendent Ronald Sampson testified that after
Piper first started work for Respondent on October 5,
1988, Piper did not show up for work on a regular basis.
On November 8 Piper called the personnel in the office,
and quit. Sampson phoned Piper some 2 weeks after No-
vember 8 and asked Piper to return to work. Sampson
testified that he phoned Piper because there was a severe
shortage of insulators in the Chattanooga area.
During the week of December 5 Piper was assigned a
job in Buford, Georgia. According to Sampson, Piper
asked to be brought back to Chattanooga to work. On
December 9 Sampson told Piper to report back to Chat-
tanooga the following week. Sampson testified that he
did not again hear from Piper until the morning of De-
cember 14, 1988. Piper did not call on Monday or Tues-
day, December 12 and 13. Piper, in dispute with Samp-
son, testified that Sampson told him to take off those
days because his wife had just delivered a baby. As to
December 14, Sampson testified:
Mr. Piper had called me approximately 7:30 or a
quarter to 8:00 that morning and asking for an as-
signment, which I assigned-
I assigned him to Central Soya.
At approximately 8:15 to 8:30 he called the office
and told me that there was a strike inbound at Cen-
tral Soya and that his Daddy had been union all his
life and he wasn't crossing no g.d. picket line.
And, I tried to explain to him that that was not a
strike, that it was a lockout and that we had been
out there on many occasions, with no problems,
going or coming . And, again he made the statement
that well, I am not going to cross that damn picket
line. My Daddy has been union all of his life and
I'm not crossing it. I said, Ralph, that's all I have
for you that day, or this day. And, I said, I don't
have anything else for you.
And, he said, well, I'm not crossing it. I said,
well, are you telling me you're quitting or what?
And, he said, well, whatever, and which he
slammed the phone down, and that was the last
conversation I had with him on that.
ANACONDA INSULATION CO. 1107
Joe Silver testified that he was foreman for Respond-
ent on the Central Soya job in December. Silver testified
that Respondent never reached its staffing requirements
on that job during the time Piper was assigned to the job
because of the unavailability of insulator, mechanics, and
the absence of Ralph Piper. Silver testified that he was
told that Piper would be at work on Monday and Tues-
day, December 12 and 13, but that Piper did not show.
Sampson next talked to Piper on December 20 or 21:
He come into the office that morning and re-
quested a layoff slip, showing that I had terminated
him or fired him. I said I can't give you one of
those, as far as I'm concerned, you quit. And, the
conversation was made that he didn't quit, that I
fired him.
And, I said, no, I didn't. I said you did not want
to work at that job site. Our conversation was that
morning, and I said, I asked you then were you
quitting or what., And, I said, in which you
slammed the phone down. So, that I took that you
were quitting.
As he was going out the door, there was a com-
ment made, like you son of a bitch, I'll get you for
this, and which he slammed the door. When he left
the parking lot, he threw gravel all over the truck
and everything else, other vehicles that were in the
parking lot.
Issues of Fact
The rule of law in this area is that an employer may
not discharge, or otherwise discipline, an employee be-
cause the employee engages in conduct protected by law
(the National Labor Relations Act).
Here, General Counsel contends that Ralph Bruce
Piper was discharged because Piper engaged in conduct
protected by law. That allegedly protected conduct was
Piper's refusal to cross a union picket line and report to
work.
Respondent argues that Piper did not engage in activi-
ty protected by law because there was no picket line up
when he reported to work on December 14, 1988, and,
in any event, it did not discharge Piper. Respondent
argues that Piper quit his employment. Finally, Respond-
ent argues that in the event it is found that Piper was
discharged, that discharge was justified in the instant sit-
uation. Respondent argued,
[A]n employer may discharge an employee for re-
fusing to cross a stranger picket line at a customer's
premises when said action adversely affects the em-
ployer's business, particularly when the employee
had no overriding personal interest in the labor dis-
pute in question
Therefore, the key issues include the questions of (1)
was there a picket at the Central Soya job site when
Piper approached the gate on December 14 (2) was
Piper terminated by Respondent during his December 14
phone conversation with Superintendent Sampson, and
(3) if it is determined that Respondent discharged Piper,
was Respondent justified in discharging Piper for busi-
ness reasons.
The picket line question
George Blalock, business agent with Teamsters Local
515, testified that the Local continued an established
practice of manning a picket line at Central Soya on De-
cember 14. Although Blalock was not competent to testi-
fy as to the conditions when Piper drove to the gate on
that day because he was not at Central Soya when Piper
arrived, he was responsible for the picket line and he fre-
quently checked that it was being properly maintained.
Picket Captain Charles Lewis recalled that Piper
drove up to their picket line at Central Soya on the
morning of December 14. Lewis testified that Piper
He pulled up in some kind of an old Volkswagen
cutdown, had old big tires on the back of it, and it
was an old primered up Volkswagen, you know had
This guy pulled up and Pete went out there and
he pulled up sort of like the fire barrel, you know,
we had the fire barrel on the ,right and the gate was
on the left. He pulled up right there next to the fire
barrel and Pete, he just sat there for a second and
Pete walked out there to see what he wanted, and,
you know, he said he was with Anaconda and was
going to cross, you know, they were working
inside . So, Pete asked him, you know, lie had a little
thing that we went through, you know, we asked
them not to cross the picket line, you know, after
we'd been locked out then for seems like it was for
twenty two months. And, then that's what we told
everybody. The only thing we would change on the
whole little talk was, you know, the months, you
know, like the month ....
Q. Alright. And, did you-were there picket
signs around?
A. Yeah.
Q. Do you recall what the picket signs said?
A. It said Teamsters Local 515 locked out by
Central Soya for, at that time, twenty two months.
We had two signs . We had one across the road on the
gate, where you go in the gate on this side , and we had
one on this side. We had four signs over on the picket
trailer here.
Q. Signs were not being carried by anybody?
A. Yeah, they were being-two guys were walk-
ing.
Q. Across the road?
A. Back and forth.
The termination issue
As to the question of whether Piper was fired, the evi-
dence includes testimony of Piper:
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
So, I told him, you know , that I didn't feel like it
was the thing for me to do.
Q. What did Mr. Sampson say?
A. Well, he told me he didn 't give a shit about
the union and he'd been over there earlier that day,
if I didn't go over there to that job that he guessed
that I quit . And, I told him that I didn 't quit, I
just-he could send me to another job if he had it.
And, he said, well, that's all I've got for you, I
guess you quit , and he hung up the phone on me.
Ronald Sampson testified:
[I] made the statement that well, I am not going
to cross that damn picket line. My Daddy has been
union all of his life and I'm not crossing it. I said,
Ralph, that's all I have for you that day, or this
day. And, I said, I don't have anything else for you.
And, he said , well, I'm not crossing it. I said,
well, are you telling me you 're quitting or what?
And, he said , well, whatever, and which he
slammed the phone down , and that was the last
conversation I had with him on that.
Penny Jeffrey overheard Sampson 's part of that con-
versation:
What I heard Ron say was that-I heard Ron tell
him that the people out at Central Soya wouldn't
bother him, that we 'd been going in and out of Cen-
tral Soya for quite a long time and nobody was
bothering us. And , then I heard Ron tell him that
he didn 't have another place to put him that day,
another job to put him on that day.
I note that although Piper denied saying that he had
rather quit than cross a picket line, he did admit in re-
sponse to the question , "would you rather quit than cross
the picket line?" that "(i)f it was going to jeopardize my
family, probably."
Rhonda Grona, a secretary for Respondent, testified
that Piper came into Respondent's office around Decem-
ber 16 and asked both her and Penny Jeffrey for a pink
slip showing he had been discharged . When Jeffrey told
him he would have to see Sampson about that, Piper
made some comments including a comment that "on
something about a picket line and he wasn 't going to
cross it" and he said he would quit before he crossed it.
Penny Jeffrey also recalled the incident around De-
cember 16 when Piper asked her for a pink slip showing
that he had been fired . Jeffrey testified that she told him
he would have to see Ron Sampson about that. Accord-
ing to Jeffrey:
Piper said , that Ron had fired him because he
wouldn't cross the picket line and that his Daddy
had been a union man all of his life and he'd quit
before he 'd cross a picket line.
The business justification question
Respondent , in its brief, recited the history of the law
regarding "stranger" picketing in close accord with the
same recitation by the Second Circuit Court of Appeals
in Business Services by Manpower v. NLRB, 784 F.2d 442
(2d Cir . 1986), and argued that it , like Manpower, would
have been justified in discharging Piper for business re-
lated reasons.
In that regard, the picketing here did not involve Re-
spondent . As shown above, the pickets involved a labor
dispute between the Union and Central Soya.
Regarding business justification for its action Respond-
ent called Joe Silver . Silver, who stated that he had au-
thority to hire and fire, testified that he was told on
Sunday, December 11, that his crew at Central Soya
would include Piper and two helpers beginning the next
day, Monday, December 12. However, on December 12,
Silver was the only employee that showed on the Cen-
tral Soya job . On Tuesday, December 13, Silver worked
the Central Soya job along with another employee, iden-
tified by Silver , as Daren Roland . However, the parties
stipulated during Silver's testimony as to Roland, that
Respondent 's records show that Roland did not work at
Central Soya on December 13, but that Roland did work
the Central Soya job for Respondent beginning on De-
cember 14 . Silver agreed that Roland continued to work
the remainder of the week after December 13. Although
Silver was told that Piper would work with Silver on
Central Soya, beginning December 12, Piper did not
show on December 12 or 13. Silver testified that Piper
never did show up for the Central Soya job after De-
cember 13.
Silver testified that he needed the other employees in-
cluding Piper on December 12 and on the days after De-
cember 12.
Respondent argued in its brief:
The facts associated with the present action are
almost identical to those presented in Manpower.
Mr. Piper 's refusal to report to work meant that
Anaconda lost profits it could have earned on his
servises [sic] and risked impairment of Anaconda's
reputation for reliability. Since mechanic insulators
are so difficult to find, a replacement was impossi-
ble once Mr. Piper refused to work, and that the
business was lost forever . The day after Mr. Piper
quit, another Anaconda employee had to be reas-
signed to Central Soya which meant that the other
job was left short handed.
The question of misconduct
An additional question arose concerning the conversa-
tion between Sampson and Piper when Piper returned
and asked Sampson for a termination slip. Jeffrey and
Grona testified that after Piper came in on December 16
he returned around December 20 or 21 and talked to
Ron Sampson . Piper, Sampson, Jeffrey, and Rhonda
Grona all testified that Piper asked for a termination slip
showing he had been discharged. Sampson , Jeffrey, and
Grona testified that Sampson told Piper that he had not
been discharged but that he had quit.
There was testimony that as Piper left he said some-
thing like "son of a bitch," that he would get him and, as
he drove away, he spun his wheels throwing gravel. Re-
ANACONDA INSULATION CO. 1109
spondent, in its brief, reserved the right to contend that
Piper forfeited reinstatement by this conduct.
Discussion
The picket line question
I am convinced that Local 515 was maintaining their
picket line at Central Soya when Ralph Piper drove up
to the gate on the morning of December 14, 1988. I fully
credit the testimony of Charles Lewis. Lewis is no
longer a member of Local 515. He had no reason to
favor one side over the other in his testimony. More-
over, Lewis' testimony was clear and precise and I was
impressed with his demeanor.
While Business Agent George Blalock could not testi-
fy as to the picket line maintenance when Piper arrived,
neither did Respondent produce competent testimony as
to the absence of a picket line at the time Piper arrived.
Joe Silver testified for Respondent that when he came in
to work at Central Soya on December 14, around 6:30
a.m., he did not see anyone walking the road carrying
picket signs . Silver testified that the only signs he saw
were "a sign leaning up or taped to or something to a
little camper that they had set. up out there." However,
neither Silver nor Blalock were competent to testify as
to the situation with the pickets at the time Piper came
to the gate.
Despite the fact that the labor dispute between Local
515 and Central Soya was nearing its completion, I find
as shown by the credited testimony of Picket Line Cap-
tain Charles Lewis, that the picket line was up and oper-
ating when Piper came to the gate on December 14.
The termination issue
Regarding the precise question of whether Piper was
discharged by Sampson, testimony cited above includes
testimony of Piper:
[I]f I didn't go over there to that job that he
guessed that I quit. And, I told him that I didn't
quit, I ... .
Sampson testified to the following:
[A]re you telling me you're quitting or what? And,
he said, well, whatever, and which he slammed the
phone down, and that ... .
Penny Jeffrey testified as to that point:
then I heard Ron ask, he asked Ralph, he said does
this mean you're-are you telling me you're quit-
ting
-Jeffrey testified that Sampson turned to her after the
phone conversation with Piper and said, that "Ralph just
quit and to take him off the payroll."
Piper goes on in his testimony:
I didn't quit, I just-he could send me to another
job if he had it. And, he said, well, that's all I've
got for you, I guess you quit, and he hung up the
phone on me.
Whereas Sampson testified: I said, Ralph, that's all I
have for you that day, or this day. And, I said, I don't
have anything else for you.
As to that point, Penny Jeffrey testified: "][ heard Ron
tell him that he didn't have another place to put him that
day, another job to put him on that day."
From the above, it appears that Superintendent Samp-
son made a comment to Piper along the lines of either,
"are you telling me you're quitting," or, "that he guessed
that I quit." Piper, Sampson, and Jeffrey all recalled that
Sampson also said either that he did not have anything
else for Piper, or that he did not have anything else for
Piper on that day.
It is apparent from an examination of the above that
all the witnesses had similar recollections as to the sub-
jects covered in the December 14 phone conversation
between Piper and Sampson. As to demeanor, I was im-
pressed during the hearing with one particular point.
When he was testifying about what he told Piper as to
not having any other work available, Sampson's demean-
or changed. The written transcript shows that Sampson
testified: "I said, Ralph, that's all I have for you that
day, or this day."
I noticed what appeared to be discomfort with that
particular testimony. At the time Sampson made that
comment I had the distinct feeling that he was uncom-
fortable with that particular testimony. Sampson's testi-
mony differs from that of Piper as to that point. Accord-
ing to Piper: "And, he said, well, that's all I've got for
you, I guess you quit."
Despite the fact that Sampson's testimony was cor-
roborated by Penny Jeffrey, I am convinced that Piper's
version is correct. I was impressed with Piper's demean-
or.
As to the phone conversation between Piper and
Sampson on December 14, I credit the testimony of
Piper which, as noted above, is similar in most respects
to that of Jeffrey and Sampson. As to the question of did
Respondent terminate Piper during that conversation,
Piper's credited testimony shows:
So, I told him, you know, that I didn't feel like it
was the thing for me to do.
Q. What did Mr. Sampson say?
A. Well, he told me he didn't give a shit about
the union and he'd been over there earlier that day,
if I didn't go over there to that job that he guessed
that I quit. And, I told him that I didn't quit, I
just-he could send me to another job if he had it.
And, he said, well, that's all I've got for you, I
guess you quit, and he hung up the phone on me.
Additionally, I credit the testimony of Penny Jeffrey
on another key point, the matter of Piper being taken off
the payroll. Jeffrey testified that after Ron Sampson
hung up after talking to Piper on December 14: "Ron
told me that Ralph just quit and to take him off the pay-
roll."
That testimony by Penny Jeffrey is, in my opinion,
critical to the issue of termination. That testimony of
Penny Jeffrey was not disputed.
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jeffrey's testimony in that regard is critical in the fol-
lowing regard. Normally in questions of this type, the
first inquiry must be: what action did the Employer take;
i.e., did the Employer take action to terminate the em-
ployee?
By turning to Jeffrey and telling her to take Piper off
the payroll, Respondent, through Ron Sampson, was ter-
minating Piper's employment. It is true, however, that
the inquiry cannot stop at that point because the question
of whether Piper quit, remains unanswered.
However, now the focus must shift from an inquiry
into what did Respondent, the Employer, do, to one of
what did Piper do, i.e., did Ralph Bruce Piper quit?
The evidence in that regard is as follows:
Piper testified: "if I didn't go over there to that job
that he guessed that I quit. And, I told him that I didn't
."q u i t , ! . . .
Sampson testified: "Are you telling me you're quitting
or what? And, he said, well, whatever, and which he
slammed the phone down, and that ...."
Penny Jeffrey testified as to that point: "[T]hen I
heard Ron ask, he asked Ralph, he said does this mean
you're-are you telling me you're quitting."
I am unable to fmd anything in the credited evidence
which illustrates that Piper actually quit. The credited
testimony of Piper shows that although Sampson said he
guessed Piper was quitting, Piper replied that he was not
quitting.
The credited testimony of Piper, and the testimony of
Penny Jeffrey showing that she was told by Sampson to
remove Piper from the payroll, shows that Respondent
terminated Piper on December 14 and that Piper did not
quit.
The business justification question
The facts show that the picketing on December 14
was "stranger" picketing as it related to Piper.
As to Respondent's contention, in its brief, that Piper
was replaced on the day after he quit, I am unable to
fmd support in the record for that contention. The
record, as shown above, shows that an additional em-
ployee, Daren Roland, was assigned to the Central Soya
job. However, Respondent's records showed, as stipulat-
ed by the parties, that Roland worked on the Central
Soya job on December 14 as well as during the remain-
der of the week. The record did not show that Piper was
replaced by Roland nor did it show that any other em-
ployee replaced Piper. The testimony of Joe Silver illus-
trates that he did not recall Roland replacing Piper.
Silver, as shown above, recalled that Roland first
worked on December 13. While that testimony was not
supported by Respondent's records, it does show that
Silver does not associate Roland's appearance on the job,
with the replacement of Piper.
In view of the fact that Roland worked the Central
Soya job on December 14-the day Piper was terminat-
ed-it appears that Roland was assigned that job before
Piper was terminated.
Findings
The picket line question
The Board found in Dave Castellino & Sons, 277
NLRB 453, 454 (1985).
It is well established that nonstriking employees
who refuse to cross a picket line their fellow em-
ployees maintain , make common cause with the
strikers, and may not be lawfully discharged for
their activities . Ashtabula Forge, 269 NLRB 774,
774-775 (1984). In Ashtabula Forge, the Board spe-
cifically held that the Act protects an employee's
refusal to cross a picket line even where the em-
ployee's sole reason is a fear of personal bodily
injury . The Board reasoned that the "focal point of
the Board 's inquiry is the nature of the activity
itself; the employee's motives for engaging in the
activity are irrelevant."
Applying the above-stated principles, we fmd
that Spriggins ' 17 March walkout , occurring in re-
sponse to a protected employee picket line at the
Respondent 's jobsite , was itself protected concerted
activity even though motivated solely by personal
fear.
In Dave Castellino & Sons, the discharged employee
left work after expressing fear about crossing a picket
line of local citizens that were complaining about the em-
ployer's failure to hire more local citizens. See also West-
ern Stress, Inc., 290 NLRB 678 (1988); Torrington Con-
struction Co., 235 NLRB 1540 (1978); ABS Co., 269
NLRB 774 (1984).
The record in this case indicated that the picket line
involved a labor dispute with another employer, Central
Soya. The dispute involved Central Soya's lockout of its
employees.
As shown above, the credited evidence shows that the
picket line was up when Piper drove up to the gate on
December 14. He inquired to the picketing employees
and was told that they preferred that he not cross the
picket line. Subsequently, Piper expressed to Sampson
that he feared crossing the picket line.
I find that the record shows that the picket line exist-
ed, that the picketing constituted protected activity, and
that Piper engaged in protected activity by refusing to
cross the picket line on December 14, 1988. Dave Castel-
lino & Sons, supra.
The termination issue
The credited evidence shows that Superintendent
Sampson terminated Ralph Bruce Piper on December 14
when he told Penny Jeffrey to remove Piper from the
payroll because Piper had quit.
The evidence showed that Piper had not quit. Samp-
son's directive to remove Piper from the payroll origi-
nated in Piper's refusal to cross the Central Soya picket
line.
I find that Sampson effectively discharged Piper by di-
recting his removal from the payroll. Dave Castellino &
Sons, 277 NLRB 453 (1985): NLRB v. Cer Inc., 762 F.2d
482, 486 (5th Cir. 1985): Serendippity-Un-Ltd., 263 NLRB
ANACONDA INSULATION CO. 1111
768 (1982); Quality Pallet Systems, 287 NLRB 1192
(1988); cf. Carriage Ford, 272 NLRB 318 (1984), where
the Board reversed the administrative law judge, in ford-
ing that six employees quit rather than -being discharged.
On December 21, Piper reinforced to Sampson that he
had not quit . By continuing to insist that Piper had quit,
Sampson did nothing to correct the actions of Respond-
ent in unlawfully terminating Piper on December 14,
There was testimony by Penny Jeffrey and Rhonda
Grona that Piper told them on December 14 that he
would quit rather than cross a picket line. I find that tes-
timony, which was disputed by Piper, does not show
that Piper had actually quit. Even if credited, that testi-
mony illustrates an expression of how strongly Piper felt
about a picket line. He did not, according to Jeffrey's
and Grona's testimony, say that he had quit. Rather, ac-
cording to their testimony, Piper said, in effect, that he
felt so strongly about picket lines that if necessary he
would quit before crossing one. In this case, the credited
evidence shows that he never told Ron Sampson or
anyone else that he quit. As shown above, the credited
evidence shows that Piper specifically told Ron Sampson
that he was not quitting.
Moreover, the credited evidence shows that Respond-
ent caused Piper reasonably to believe that he had been
discharged when Sampson made the following comments
to Piper:
Q. What did Mr. Sampson say?
A. Well, he told me he didn't give a shit about
the union and he'd been over there earlier that day,
if I didn't go over there to that job that he guessed
that I quit. And, I told him that I didn't quit, I
just- he could send me to another job if he had it.
And, he said, well, that's all I've got for you, I
guess you quit, and he hung up the phone on me.
By the above language, Sampson was giving Piper a
"Hobson's choice" of crossing the picket line and report-
ing to the Central Soya job or "quitting."
A constructive discharge in violation of the Act can
be found, for example, when an employer informs
his employees that they must choose between union
activity and continued employment, and employees
faced with this "choice" decided to terminate their
employment. NLRB v Cer Inc., 762 F.2d 482, 487
(5th Cir. 1985)
After presenting Piper with the "Hobson's choice" of
crossing the picket line or "quitting," Sampson directed
that Piper be removed from the payroll when Piper re-
fused to agree to cross the picket line. See Pennypower
Stropping News v. NLRB, 726 F.2d 626 (10th Cir. 1984);
Trident Recycling Corp., 282 NLRB 1255, 1260 (1987);
Dave Castellino & Sons, 277 NLRB 453 (1985).
The business justification question
Respondent argues that in any event it would have
been justfied in discharging Piper because of business
reasons. In citing Business Services by Manpower v.
NLRB, supra, Respondent argues (1) that the picketing
at the Central Soya gate was, at best, "stranger picket-
ing," and that (2) the circumstances, as illustrated in the
record, shows that it was necessary for business reasons
to take whatever action required regarding the termina-
tion of Piper.
Judge Posner discussed those questions in NLRB v.
Browning-Ferris Industries, 700 F.2d 385 (7th Cir. 1983):
A natural reading of section 7 leads to the con-
clusion that refusing to cross a picket line at the
premises of an employer 's customer is protected ac-
tivity, and when we consider, in addition, the pro-
union ambience of the Wagner Act, and the Su-
preme Court's frequent rejection, as in Eastex Inc.,
supra, 437 U.S. at 565-67, 98 S.Ct. at 2512-13, of a
narrow reading of section 7, we conclude that the
natural reading is also the legally correct one.
We are not alone in so concluding. For the last
twenty years the Board has held that refusing to
cross a picket line at the premises of an employer's
customer is protected activity, see, e.g., Redwing
- Carriers Inc., 137 N.L.R.B. 1545 (1962), enforced
sub nom. Teamsters, Etc., Local Union 79 v. NLRB,
325 F.2d 1011 (D.C. Cir.1963); Overnite Transport
Co., 212 N.L.R.B. 515 (1974), and its view, so stead-
ily maintained through several changes of Adminis-
tration, is entitled to consideration. Most circuits
that have considered the issue have agreed with the
Board.... [700 F.2d at 387.]
Judge Posner found that "stranger picketing" does
constitute protected activity. Judge Posner went on to
consider the distinction between permanently replacing
an employee or employees for refusing to cross a picket
line, and discharging an employee or employees for the
same conduct:
It could not lawfully go further and discharge, as
distinct from permanently replacing, the balking
drivers. Discharge severs the employement [sic] re-
lationship entirely; and should the discharged
worker apply for reemployment he would have to
take his turn in the queue with any other apppli-
cants . In contrast , a worker who has been perma-
nently replaced jumps to the head of the queue; in
addition, he is entitled to notice of Job openings;
most important, he retains his seniority. If an em-
ployer can protect the reasonable needs of his busi-
ness by permanently replacing a worker he has no
right to go further and discharge him. That would
unnecessarily burden the exercise of section 7
rights . [NLRB v. Browning-Ferris Industries , supra at
389.]
In Browning-Ferris, Judge Posner found that the em-
ployer did not discharge the employees, and for that
reason , the Board 's fording of a violation was reversed.
Here , I have difficulty rationalizing Respondent's argu-
ments in light of Browning-Ferris. It appears to be Re-
spondent's contention that it was forced to either dis-
charge or permanently replace Ralph Bruce Piper for
business reasons.
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Unfortunately , from Respondent 's standpoint, the
record does not support a business justification for Re-
spondent's action against Piper on December 14.
As to the question of permanent replacement, as
shown above , the record does not support Respondent's
claim, in its brief, that Piper was replaced on the day
after he quit or was terminated.
Respondent's records show that Joe Silver worked on
job 88 - 1111 through out the week of December 16, i.e.,
December 12, 13, 14 , 15, and 16 . The only other employ-
ees shown to work on job 88 - 1111 during that week was
Darren Rowland (spelled Roland in the transcript).
Rowland was shown working on job 88-79 on Monday,
December 12, and Tuesday , December 13. On Wednes-
day, December 14, Rowland worked a full day on job
88-1111 , which was the Central Soya job . Respondent's
"superintendent daily report" forms show that job
number 88- 1111 was the Central Soya job.
Rowland worked a full day at Central Soya on both
Wednesday , December 14, and the following day. On
Friday, December 16, Rowland worked 6-1/2 hours at
the Central Soya job.
Respondent , in dispute with Piper , contends through
both Joe Silver and Ron Sampson , that Piper was not
authorized to miss work on Monday and Tuesday, De-
cember 12 and 13.
The above illustrates that (1) both Joe Silver and
Darren Rowland were assigned to the Central Soya job
before Piper's termination on December 14. Rowland
was assigned , as per the superintendent daily report, for
a full day at that job on December 14. He worked other
jobs but not on that day . His last previous assignment
was at "Dow" job 88-79, on December 13. Therefore,
he was shown not to have been transferred from another
job after Piper 's termination on the morning of Decem-
ber 14. He was already at the Central Soya job . Silver
worked Central Soya throughout the week . Obviously,
Silver did not replace Piper.
In view of the fact that no other employees worked at
Central Soya during the week of Piper's termination, I
find that there was no showing on the record ' that Piper
was replaced because he refused to cross a picket line on
December 14.
Moreover, by alleging that Piper was not authorized
to miss work on Monday and Tuesday , December 12
and 13, Respondent calls into question whether any
action was necessary, on business grounds, regarding
Piper's absence on December 14. If, as Respondent
argues, its ability to perform the job and its reputation
for reliability were affected by Piper's action on Decem-
ber 14, one must ask why were those same two factors
not affected by Piper's frequent absences , including his
absences on December 12 and 13.
In view of the above , I find that Respondent failed to
prove that action against Ralph Bruce Piper was justified
on business grounds . The record shows no basis to distin-
guish between Piper 's absence on December 14, and his
numerous absences , according to Respondent's witnesses,
before that date . However, in regard those earlier ab-
sences Respondent took no action against Piper . In fact,
even though he was frequently absent after first being
employed in October 1988 , and even though Piper quit
in early November, Respondent requested Piper to
return to work.
Respondent did not show why its business justified dis-
charging Piper because he refused to cross a picket line
when it actions demonstrated that no action was justified
because of absence from work . The cases cited by Re-
spondent in support of its argument in this regard, espe-
cially Business Services by Manpower v. NLRB, supra,
turn on the issue of absentism , i.e., the employee by his
absence created a difficult situation for the employer.
Here, the absence itself, did not appear to cause difficul-
ty for the Employer as evidenced by his tolerant practice
regarding the numerous absences of Piper.
I am convinced , and find , that this contention by Re-
spondent must be rejected.
Misconduct
The above findings show that Respondent engaged in
conduct which violates the law. The normal remedy
would require Respondent to offer reinstatement to Piper
as well as paying Piper for wages lost because of Re-
spondent's discrimination against Piper and for Respond-
ent to post a notice to its employees . However, under
certain circumstances an employee may lose the right to
reinstatement if he engages in misconduct at some point
in time after his discharge but before he is reinstated.
Here, there appears to be a question as to whether Ralph
Bruce Piper engaged in misconduct which was sufficient-
ly serious to bar him from reinstatement entitlement.
There is record testimony to the effect that Ralph
Piper cursed- Ron Sampson and drove recklessly out of
the parking lot on December 20 or 21.
Rhonda Grona and Ron Sampson testified in that
regard.
Grona testified:
[A]s he went out the door , he called Ron a s.o.b.
He didn 't say s.o.b. He ... .
Q. He used the real-the words.
A. Yeah.
Q. And , then what did he way?
A. He told him he'd get him and slammed the
door. You could still hear him outside the door, and
got in his car and stormed out of the driveway and
slung gravel all over our cars.
Rhonda Grona admitted that Piper did not damage
any cars when his car threw gravel.
Ron Sampson recalled:
As he was going out the door , there was a com-
ment made, like you son of a bitch , I'll get you for
this , and which he slammed the door. When he left
the parking lot, he threw gravel all over the truck
and everything else, other vehicles that were in the
parking lot.
Ralph Piper admitted that he was kind of mad when
Sampson refused to give him a pink slip but he denied
that he called Sampson a son of a bitch . Piper admitted
that his tires "may have spun a little bit in that car be-
ANACONDA INSULATION CO. 1113
cause it's a four speed, and I mean it may have kicked up
some when I left."
Discussion
Both Rhonda Grona and Ron Sampson recalled Piper
saying something like son of a bitch. In view of the juris-
prudence and the evidence, I find it unnecessary to de-
termine credibility in this regard. For purposes of consid-
ering this issue, I shall consider, for the sake of that con-
sideration only, that the testimony of Grona and Samp-
son is credible. In view of Piper' s admission and the tes-
timony of Grona and Sampson, I find that Piper did spin
his tires as he left, throwing gravel.
Findings
Despite the above assumptions of fact in this regard, I
find nothing here which would excuse Respondent the
obligation of offering reinstatement to Piper. Piper was
justifiably angry after being refused a termination slip.
Moreover, his conduct was not of the type to make him
ineligible for reinstatement. See Matlock Truck Body &
Trailer Corp., 248 NLRB 461 (1980); cf. J. W. Microelec-
tronics Corp., 259 NLRB 327 (1981), where the Board
found that reinstatement was not barred when employees
"exceed the bounds of lawful conduct in a moment of
exuberance" and cf. Lima v. NLRB, 819 F.2d 300 (D.C.
Cir. 1987), where the court discussed the issue of miscon-
duct sufficient to preclude a reinstatement order, in re-
versing the Board's finding that an employee's action
during a strike constituted misconduct sufficient to justi-
fy dismissal of the complaint.
Here the conduct of Piper, assuming he said "son of a
bitch, I'll get you for this," and that "he spun his tires in
the parking lot," falls short of any action found to justify
loss of reinstatement rights. There was no threat of im-
mediate harm to anyone. There was no damage caused
by Piper spinning his tires and the language used by
Piper, assuming that he used the language recalled by
Grona, was not such that would justify loss of reinstate-
ment rights.
CONCLUSIONS OF LAW
1. Anaconda Insulation Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent, by discharging and refusing to reinstate
Ralph Bruce Piper, violated section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges.
In regard to the issue of reinstatement, I note from the
file that an offer of reinstatement was apparently ex-
tended to Ralph Piper on March 31, 1989. Perhaps that
offer does constitute a valid offer of reinstatement. If so,
and I make no findings in that regard in view of the fact
that that issue was not fully litigated and may need litiga-
tion in compliance proceedings, it may be that no further
reinstatement offer is necessary.
I shall further recommend that Respondent be ordered
to make Piper whole for any loss of earnings he suffered
as a result of the discrimination against him. Backpay
shall be computed in the manner described in F W.
Woolworth Co., 90 NLRB 289 (1950), with interest, as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).'
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Anaconda Insulation Company,
Chattanooga, Tennessee, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging, refusing to reinstate, and otherwise
discriminating against employees because of their union
or other protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.2. Take
the following affirmative action necessary to effectuate
the policies of the Act
(a) Offer its employee, Ralph Bruce Piper, immediate
and full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent job without
prejudice to his seniority or other rights or privileges
previously enjoyed, and make Piper whole for any loss
of earnings, plus interest, suffered because of its illegal
action.
(b) Remove from its files any reference to the termina-
tion of Piper and notify Piper in writing that this has
been done and that evidence of his unlawful termination
will not be used against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, and time-
cards, personnel records, reports, and all other records
necessary to analyze the amount of backpay due under
the terms of this Order.
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that Respondent unlawfully discharged
Ralph Bruce Piper , I shall recommend that Respondent
be ordered to offer Piper immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
1 Under New Horizons, interest is computed at the "short -term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective
date of the amendment), shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977).
2 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 purposes.
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Post at its facility in Chattanooga, Tennessee,
copies of the attached notice.3 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activites.
WE WILL NOT discharge, refuse to reinstate, and other-
wise discriminate against employees because they refuse
to cross a union's picket line or because they engage in
other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer Ralph Bruce Piper immediate and full
reinstatement to his former job or, if that job no longer
exists, to a sustantially equivalent job without prejudice
to his seniority or other rights or privileges previously
enjoyed.
WE WILL make Ralph Bruce Piper whole for any loss
of earnings, plus interest, suffered because of the discrim-
ination we practiced against him.
WE WILL expunge form our records any reference to
the discharge of Piper and WE WILL notify Ralph Bruce
Piper in writing of our action in that regard.
ANACONDA INSULATION COMPANY
MINE WORKERS (MOUNTAIN MINERALS) 1115
DECISION
STATEMENT OF THE CASE
STEPHEN J. GROSS, Administrative Law Judge. The
Charging Party, Mountain Minerals, Inc., is in the coal
mining business in West Virginia.2 None of its employees
are represented by either UMWA Local 5948 or the
UMWA International.3
The General Counsel claims that the Respondents vio-
lated Section 8(b)(7) (C) of the Act in that they have
picketed Mountain Minerals, that they have done so
without filing a 9(c) petition within a reasonable period
of time, and that the Respondents' purpose in picketing
Mountain. Minerals has been to force Mountain Minerals
to recognize the Respondents as the collective-bargaining
representative of the Company's employees and to
compel the Company to employ the Respondent's mem-
bers.4
1. DID LOCAL 5948 VIOLATE SECTION 8(B)(7)(C)
THE FACTS
This proceeding centers around a West Virginia coal
mine the parties refer to as "No. 4 Mine." A company
called Milburn Collieries mined coal there until October
1984. The mine's employees were represented by the
UMWA International (the International), and the em-
ployees were members of Local 5948.
In October 1984 Milburn refused to sign the then new
national agreement between the UMWA and the Bitumi-
nous Coal Operators Association. The International
called a strike against Milburn. Picketing began both at
No. 4 Mine and at Milburn's office, which was 5 miles
away from the mine. The strike completely shut down
Milburn's coal production.
The UMWA is still on strike against Milburn. Milburn
has never presumed production at No. 4 Mine.
On May 16, 1989, Michael Brooks and Thomas Busch
formed Mountain Minerals with a view to leasing No. 4
Mine from Milburn and mining coal there.5 Two days
later Mountain Minerals did lease No. 4 Mine from Mil-
bum and, in addition, purchased various coal mining
equipment from Milburn.
Apart from the lease and purchase agreements there is
no connection between Mountain Minerals and Milburn.
The Respondents do not here contend that Mountain
Minerals is either a successor to or an alter ego of Mil-
bum.
In the meantime picketing continued both at Milburn's
office and at No. 4 Mine. (When I refer to "No. 4 Mine"
I refer to the property on which the actual mine is locat-
ed, not just the mine itself. The property is entered
2 P. III of this Decision, below, deals with the Respondents' contention
that Mountain Minerals is not engaged in commerce within the meaning
of the National Labor Relations Act (the Act).
3 The parties agree that both Local 5948 and the UMWA International
are labor organizations within the meaning of the Act.
4 Mountain Minerals filed its unfair labor practices charges against
Local 5948 and the UMWA International on June 21 , 1989. The com-
plaint issued on July 10.
8 The transcript refers to "Thomas Bush," rather than "Busch." But
the General Counsel's brief uses the latter spelling.
through a gate that's about 30 feet from a public thor-
oughfare. The pickets stationed themselves just outside
the gate. An access road, entirely on the property of No.
4 Mine, leads to the entrance to the mine.)
The persons who maintained a presence at the gate
leading to No. 4 Mine did not carry signs. But the rela-
tionship of such persons to the strike was clear. And
signs relating to the strike against Milburn were visible
nearby. Thus such persons were "pickets" as that term is
used in Section 8(b)(7)(C). See, in this respect, Mine
Workers District 12, 177 NLRB 213, 218 (1969). In any
case, the Respondents do not dispute that such persons
were "picketing." As will be discussed, however, until
May 23, and perhaps until June 1, the pickets at No. 4
Mine could have reasonably believed that they were
picketing Milburn or an entity intimately connected to
Milburn.
The first conversation between a Mountain Minerals
agent and the persons picketing No. 4 Mine occurred in
the afternoon of May 22. As Brooks was leaving the
property a picket asked him if he was one of "the people
that had [taken] over the property up there." Brooks said
he was. A picket then asked Brooks if he was going to
employ UMWA members to do the mining. (The picket
worded his question in terms of whether Brooks "was
going to honor the panel.") Brooks told him to talk to
his (Brooks') attorney.
Signs hanging from trees a few feet from the gate bore
messages along the lines of "Local 5948," "UMWA
Country," and "Keep Out Scabs."
Brooks and the other owner of Mountain Minerals,
Thomas Busch, went back to No. 4 Mine early the next
morning , May 23. Apparently the pickets had not been
altogether satisfied by Brooks' proposal that they speak
to his attorney since just after Brooks and Busch got to
the property, about eight men, in five or six vehicles, ar-
rived on the scene . The visitors parked their vehicles in a
manner that kept Brooks and Busch from driving off the
property and kept anyone else from driving onto it.
Brooks and Busch briefly conversed with some of the
men, proceeded to a shack on the mine's property from
which they called the state police, and subsequently had
a further conversation with the men at the gate in the
presence of a police officer.
The president of Local 5948, Harrison Williams, was
one of the eight men whose vehicles blocked the en-
trance to No. 4 Mine. Williams spoke to Brooks both
before and after the police arrived. In the course of the
first discussion between Williams and Brooks, Williams
told Brooks that "if anybody mines coal up there it's
going to be our people." In the course of the second
conversation Brooks for the first time uttered the name
of his Company, Mountain Minerals; and, according to
Brooks, Williams said that the previous evening someone
named Green told Williams "to block all entrances to the
mine." (As noted earlier, Howard Green is an agent of
the International. His work included matters pertaining
to the strike against Milburn Collieries.)
Others in the group with Williams uttered remarks to
Brooks and Busch along the lines of. (1) if Mountain
Minerals would "sign a contract you wouldn't have
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these problems"; (2) "we don't care if we have to go to
jail, we're not going to move because this is our mine";
and (3) Mountain Minerals was nothing more than a part
of Milburn. In that last respect Brooks tried to assure the
group that Mountain Minerals was "totally separate from
Milburn."
The upshot of the conversation between Williams'
group, on the one hand, and Brooks and Busch on the
other (with a police officer mediating), was that Brooks
and Busch would be permitted to enter and leave No. 4
Mine, because "they were owners, not workers."
Clearly Williams and the members of his group were
"pickets," and their presence at the entrance to No. 4
Mine amounted to "picketing" of Mountain Minerals by
Local 5948. (The Respondents point out that the record
is silent about the identity of any of the pickets other
than Williams. But the facts compel the conclusion that
they were members of Local 5948 who had gone out on
strike against Milburn.)
The picketing of Mountain Minerals continued without
substantial change through June 2. In addition, the tele-
phone lines on the property of No. 4 Mine were repeat-
edly cut and the access road to the mine was strewn
with nails. Moreover none of Mountain Minerals' newly
hired employees showed up for work in the period fol-
lowing May 23.
All that led Mountain Minerals to seek an injunction
from a state court. The hearing in the matter was held
on June 1 and 2. Both Local 5948 and the International
were represented by counsel. For our purpose the most
significant facet of that hearing was that the connection
between Mountain Minerals and Milburn was explored
there. Brooks testified to the lack of any connection be-
tween the two companies apart from the lease and sales
agreement (discussed above). No one introduced any
contrary evidence.
But the state court action didn't improve the circum-
stances facing Mountain Minerals. Rather, the only
changes to occur in the situation after the state court
hearing were a substantial increase in the number of
pickets at,No. 4 Mine, round-the-clock picketing (com-
pared to the previous daytime patrolling), barrages of
curses aimed at Brooks and Busch every time they en-
tered or left the mine, and the pickets' construction of a
shack next to the entrance to No. 4 Mine. Signs on the
shack read "UMWA Forever" and "Keep Out Scabs."
All that began on June 3 (the day following the state
court hearing). The mine's telephone lines remained cut,
and nails kept showing up on the mine's access road.
That state of affairs continued for about 6 weeks, not
stopping until July 22, 2 days after a United States Dis-
trict Court issued a restraining order addressed to the
International and Local 5948. Since July 22 there has
been no picketing of No. 4 Mine. (In its stead signs read-
ing "strike" can be seen a mile or two in each direction
from the mine, with parked vehicles nearby, next to the
public highway that leads to No. 4 Mine.) Work at
Mountain Minerals has proceeded normally.
Mountain Minerals was associated with Milburn Collier-
ies. After that date, however, there could be no such rea-
sonable belief. Nonetheless, Local 5948 continued to
picket Mountain Minerals for about 50 days, until July
22. The object of that picketing: to have Mountain Min-
erals limit its hiring to the persons who had previously
worked at the mine when it was operated by Milburn-
i.e., the members of Local 5948. That, in turn, is a recog-
nitional objective: "It is well established that picketing
which has its object the requirement that an employer
hire union members exclusively has a recognitional
object." Mine Workers Local 1329 (Alpine Construction),
276 NLRB 415, 434 (1985), enf. denied on other grounds
812 F.2d 741 (D.C. Cir. 1987).6
Thus Local 5948 violated Section 8(b)(7)(C). The
Union picketed Mountain Minerals, it did so with a re-
cognitional objective, it picketed for more than 30 days
without filing a 9(c) petition, and the picketing was not
for the purpose of advising the public.
II. DID THE INTERNATIONAL VIOLATE SECTION
8(B)(7)(C)
It was the International that called the strike against
Milburn in the first place. And the International paid
strike pay and provided health benefits to the striking
employees of Milburn. Throughout the course of the
strike acknowledged agents of the International routinely
visited the two picketing sites-Milburn's office, and No.
4 Mine. The purpose of those visits was to hand out
strike pay, deal with problems associated with the
Union's health benefits, check on strike "activity," and
handle such matters as picket line behavior. As Interna-
tional Agent Mark March testified, "if a guy was drink-
ing up there [on the picket line] . . . I could take him
off" strike pay.
Those visits by agents of the International, to both
sites, continued at least until the hearing in this proceed-
ing. Thus the International had to have been aware of
the picketing of Mountain Minerals and of the signs on
the pickets' shack at No. 4 Mine that read "UMWA For-
ever" and "Keep Out Scabs."
There is no evidence that the International made any
effort to stop the picketing.
In sum, agents of the Union that was providing strike
pay and benefits to the members of Local 5948, that
monitored the picket line behavior of the members of
Local 5948, and that was aware at least as early as June
1 that the mine was being operated by an employer not
associated with Milburn, witnessed the post-June 1 pick-
eting of No. 4 Mine, and knew or should have known
that a purpose of the picketing was to preclude Moun-
tain Minerals' employment of non-UMWA employees.
That, it seems to me, is enough to deem the Interna-
tional jointly responsible with Local 5948 for picketing
Local 5948's Violation of Section 8(b)(7)(C)
I will assume, for present purposes, that until as late as
June 1 Local 5948 could have reasonably believed that
6 Compare Mine Workers Local 5926 (Sunrise Mining), 291 NLRB 644
(1988), in which the picketing of a mine concerning management's em-
ployment policies was found to be a "community protest independent of
any union direction and control."
MINE WORKERS (MOUNTAIN MINERALS) 1117
that violated Section 8(b)(7)(C). See Service Employees
Local 87, 291 NLRB 708 (1988).7
III. THE BOARD'S JURISDICTION
Mountain Minerals is a nonretail company. The
Board's jurisdictional standard for nonretail companies is
$50,000 in outflow or inflow across state lines, directly
or indirectly. Siemons Mailing Service, 122 NLRB 81, 85
(1958). In circumstances in which the employer is just
getting underway, jurisdictional determinations are predi-
cated on projections of the employer's annual revenues.
E.g., New London Mills, 91 NLRB 1003, 1004 (1950).
Two affiliated companies in the coal supply business,
Mountain Carbon and Valley Carbon, have a contractual
arrangement with Mountain Minerals whereby Mountain
Minerals will ship all of its output to them. Mountain
Minerals planned to begin shipping coal in mid-July and
reach full production of 20,0D0 tons of coal per month
by mid-August. The Company failed to meet that time-
table, at least in part because of the picketing. But Moun-
tain Carbon and Valley Carbon, as well as Mountain
Minerals, continue to contemplate shipments from No. 4
Mine of 20,000 tons per month, 240,000 tons per year.
Mountain Minerals will receive about $3 million from
Mountain Carbon, and Valley Carbon for that 240,000
tons . Mountain Minerals, Mountain Carbon, and Valley
Carbon are all located in West Virginia. But Mountain
Carbon resells virtually all of the coal it purchases to
customers located in States other than West Virginia.
And Valley Carbon sells much of its coal to non-West
Virginia customers. The persons who own both Moun-
tain Carbon and Valley Carbon expect that Mountain
Carbon will purchase 10 percent of Mountain Minerals'
output, or 24,000 tons per year. Just focusing on that
coal, Mountain Minerals will receive more than $300,000
for it, and just about all of that coal will be crossing state
lines.
I conclude, therefore, that Mountain Minerals is an
employer engaged in commerce for purposes of the Act.
REMEDY
Where the Board finds that a union's picketing of an
employer violated Section 8(b)(7)(C), the usual order re-
quires the union to cease and desist from violating that
provision in respect to that employer. E.g., Teamsters
Local 554 (Better Home Deliveries), 274 NLRB 164, 171
(1985). Here, however, the General Counsel urges that
the Board require both the International and Local 5948
"to cease and desist from future violations of Section
8(b)(7)(C) with respect to any employer" (emphasis
r Howard Green is an agent of the International whose responsibilities
included the Milburn strike. Mountain Minerals Officer and Owner
Brooks testified that Local 5948 President Williams told Brooks that on
May 22 someone named Green had told Williams to block the entrance
to No. 4 Mine . But that may have been before anyone had advised either
the International or Local 5948 that Mountain Minerals was an entity
separate from Milburn . Because of that, because of the hearsay issues in-
volved in Brooks ' testimony, and, because there is sufficient other evi-
dence of the International's involvement in the picketing of Mountain
Minerals, I have not taken this testimony of Brooks into account in deter-
mining whether the International violated Sec. 8(b)(7)(C).
added).8 The Unions, of course, object to any such
broad order.
The issue is whether the record in this case together
with any matters of which I may take official notice
demonstrate a proclivity on the part of the International
and Local 5948 to violate Section 8(b)(7). See Operating
Engineers Local 12 (Associated Engineers), 270 NLRB
1172 (1984).
My conclusion is that there has been no such demon-
stration.
For one thing, the issue was not litigated at the hear-
ing.
Turning to the facts of this case, the record here
shows that, in the very least, the pickets sometimes
blocked access to Mountain Minerals' No. 4 Mine, they
uttered threats, and they damaged Mountain Minerals'
property (vehicle tires flattened by nails strewn by the
pickets). But that kind of conduct, while unacceptable,
would not seem to be sufficiently egregious as to warrant
a broad cease-and-desist order.
As for other comparable violations of the Act by
either Local 5948 or the International, the General
Counsel has not suggested that Local 5948 ever previ-
ously violated Section 8(b)(7). As regards the Interna-
tional, the only instances of other 8(b)(7) violations by
the International that the General Counsel cites occurred
no less than 3 years ago.9
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed10
ORDER
The Respondents, International Union, United Mine
Workers of America, and Local 5948, United Mines
Workers of America, their officers, agents, and repre-
sentative, shall
1. Cease and desist from picketing, or causing to be
picketed, Mountain Minerals, Inc., where an object
thereof is forcing or requiring Mountain Minerals to bar-
gain with the Respondents as the collective-bargaining
representative of its employees, or forcing or requiring
employees of Mountain Minerals to accept or select the
Respondents as their collective-bargaining representative
at a time when the Respondents are not certified as such
representative and where such picketing has been con-
ducted without a petition under Section 9(c) being filed
Br. at 16.
9 Appended to the General Counsel 's brief are settlement stipulations
and Decisions and Orders of the Board in four 8(b)(7)(C) cases in which
the International was a Respondent : (1) 9-CP-287-1; (2) 9-CP-292-3; (3)
9-CP-290-3; and (4) 9-CP-280-1,-2,-3,-4. Judgments of United States
courts of appeals enforcing the Board 's orders in the latter three cases are
also appended . The Respondents have moved to strike those appended
materials on the ground that they are not a part of the record in this case.
But all of the appended documents are officially noticeable . Having those
materials attached to the General Counsel's brief is thus merely a matter
of convenience for me and the Board . I accordingly hereby deny the Re-
spondent's motion to strike
10 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.
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
within a resonable time not to exceed 30 days from the
commencement of such picketing.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at their business offices copies of the attached
notice marked "Appendix A," in the case of the Interna-
tional Union, and "Appendix B," in the case of Local
5948.11 Copies of the notices, on forms provided by the
Regional Director for Region 9, after being signed by
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
the Respondents' authorized representative, shall be
posted by the Respondents immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of the notices to the
Regional Director for posting by Mountain Minerals,
Inc., if willing, at all places where notices to employees
are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
* U.S. GOVERNMENT PRINTING OFFICE: 1992 312-470/60005