District 30, UMW

National Labor Relations Board - Board Decisions

Mar 22, 1967

163 N.L.R.B. 562 (N.L.R.B. 1967)

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. In the circumstances of this matter , I find no merit to
the contention of Preformed that a pattern of illegal
conduct is shown by the Board 's cases which would justify
a broad order against the Respondent here . I therefore
recommend the following:
ORDER
Upon the basis of the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended , it is hereby ordered that International
Association of Heat and Frost Insulators and Asbestos
Workers, Local 8, AFL-CIO, its officers, agents, and
representatives , shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by
Baldwin -Ehret -Hill, Inc ., Daugherty Company, Inc., or
Campbell, Deboe, Giese , and Weber, to engage in a work
stoppage with an object of forcing or requiring said
persons to cease doing business with Preformed Metal
Products Company, Inc., or to cease using , selling,
handling , transporting , or otherwise dealing in the
products of Preformed.
(b) Threatening , coercing , or restraining Baldwin,
Daugherty , or Campbell, where an object thereof is to
compel said persons to cease doing business with
Preformed, or to cease using , selling, handling,
transporting , or otherwise dealing in the products of
Preformed.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Post at its office and meeting hall copies of the
attached notice marked "Appendix." " Copies of said
notice, to be furnished by the Regional Director for Region
9, after being duly signed by an official of the Respondent,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all other places where
Respondent customarily posts its notices . Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any other
material.
(b) Furnish said Regional Director for Region 9 signed
copies of the aforesaid notice for posting by Baldwin,
Daugherty , and Campbell , if they are willing , at places
where they customarily post notices to employees.
(c) Notify said Regional Director, in writing, within 20
days from the date of receipt of this Decision and
Recommended Order, what steps the Respondent has
taken to comply therewith.12
In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
ix In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify the
Regional Director for Region 9 , in writing, within 10 days from the
date of this Order, what steps Respondent has taken to comply
herewith."
APPENDIX
Notice to all Members
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our members
that:
WE WILL NOT cause or encourage a work stoppage
with a purpose of requiring Baldwin -Ehret -Hill, Inc.,
Daugherty Company, Inc., or Campbell, Deboe,
Giese, and Weber to stop doing business with
Preformed Metal Products Company, Inc., or to stop
using products made by Preformed.
WE WILL NOT threaten , coerce , or restrain Baldwin,
Daugherty, or Campbell with a purpose of requiring
them to stop doing business with Preformed, or to
stop using products made by Preformed.
INTERNATIONAL
ASSOCIATION OF HEAT AND
FROST INSULATORS AND
ASBESTOS WORKERS, LOCAL
No. 8, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building , 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.
District 30, United Mine Workers of America
and Terry Elkhorn Mining Company, Inc.
United Mine Workers of America and Terry
Elkhorn Mining Company, Inc. Cases
9-CP-51-1 and 9-CP-51-2.
March 22,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 2, 1966, Trial Examiner George
Turitz issued his Decision in this proceeding, finding
that Respondents had engaged in and were engaging
in certain unfair labor practices and recommending
that they cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial
Examiner also found that Respondents had not
engaged in certain other unfair labor practices, and
recommended that those allegations of the
complaint be dismissed. Thereafter, Respondents
and the General Counsel filed exceptions to the Trial
Examiner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
163 NLRB No. 81
DISTRICT 30, UMW 563
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, with the modifications noted
below.'
CONCLUSIONS OF LAW
The Trial Examiner 's conclusions of law are
hereby amended by substituting the following
paragraph for paragraph 7:
7. Respondents , District 30, United Mine
Workers of America , and United Mine Workers
of America , by picketing , or causing to be
picketed , the places of business of Terry
Elkhorn Mining Company, Inc., and Marshall
Mahan , doing business as Mahan Coal
Company , for an object of forcing or requiring
said employers to recognize or bargain with
Respondents , or either of them, as the
representative of their employees , no petition
having been filed within a reasonable time from
the commencement of such picketing, have
engaged in unfair labor practices within the
meaning of Section 8 (b)(7)(C) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondents,
District 30, United Mine Workers of America, and
United Mine Workers of America, their officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete paragraph 1 of the Trial Examiner's
Recommended Order and substitute the following:
"1. Cease and desist from picketing, or causing to
be picketed, Terry Elkhorn Mining Company, Inc.,
or Marshall Mahan, doing business as Mahan Coal
Company, where an object thereof is to force or
require said employers, or either of them, to
recognize or bargain with Respondents, or either of
them, as the representative of their employees, or to
force or require employees of said employers to
accept or select Respondents, or either of them, or
any other labor organization, as their collective-
bargaining representative, in circumstances
violative of Section 8(b)(7)(C) of the Act."
2. In the notice attached to the Trial Examiner's
Decision and marked "Appendix," delete the
indented paragraph and substitute the following:
WE WILL NOT picket, or cause to be picketed,
Terry Elkhorn Mining Company, Inc., or
Marshall Mahan, doing business as Mahan Coal
Company, where an object thereof is to force or
require said employers, or either of them, to
recognize or bargain with us, or either of us, as
representative of their employees , or to force or
require employees of said employers to accept
or select us , or either of us, or any other labor
organization , as their collective -bargaining
representative , in circumstances violative of
Section 8(b)(7)(C) of the Act.
I
The Trial Examiner concluded that an object of the picketing
by Respondents was to organize the employees of Terry Elkhorn
Mining Company , Inc , and Marshall Mahan , d/b/a Mahan Coal
Company We agree He further concluded , however, that
Respondents did not picket for an object of forcing or requiring
those employers to recognize or bargain with Respondents as the
representative of their respective employees The General
Counsel excepts to this conclusion, and we find merit in these
exceptions . In our opinion, the nature of the picketing herein
indicates it was not limited to organizational purposes . The total
employment of both employers was approximately 60, there were
as many as 500 pickets on a given day of picketing. Some
employees were entreated to "go home ," others were entreated to
refuse to work and join the picket line, which some did Even after
Mahan's employees all refused to work, Mahan himself was
harassed and picketed so long as he attempted to operate his
tipple Akers told Wright, one of Terry Elkhorn's haulers "If this
coal is dumped here, it's going to be union coal " Newberry
remarked to Terry Elkhorn's chief officer "By God we're going to
force you to sign a union contract one way or another " Davis
asked Mahan why he "wasn't a good fellow and go ahead and sign
a United Mine Workers contract " Akers and Davis are admitted
agents of Respondents Although , the agency of Newberry is-
denied , the record shows him to have been very active in soliciting
union membership , to have presented himself to employees as
"representing the United Mine Workers ," and as "an organizer "
Some of his activities were carried on in the presence of admitted
agents of Respondents , without disavowal Accordingly, we find
that Newberry 's remarks are attributable to Respondents
In these circumstances we cannot agree with the Trial
Examiner that the Respondents ' purpose in picketing was merely
organizational. In this connection we do not view Davis ' comment
to Mahan as isolated , nor do we regard it as significant that Akers'
statement was made to Wright , an employer who was not picketed
and who was asked to join the Union On the basis of Davis',
Newberry's, and Akers' statements, and the record as a whole, we
find that Respondents had a recogmtional object in picketing
Mahan and Terry Elkhorn
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ , Trial Examiner : On charges filed by
Terry Elkhorn Mining Company, Inc., herein called Terry
Elkhorn, and respectively served on April 18, 1966, upon
District 30, United Mine Workers of America, herein
called District 30, and upon United Mine Workers of
America , herein called the UMW International , both at
times herein collectively called Respondents or the Union,
the General Counsel of the National Labor Relations
Board, herein called the Board , through the Regional
Director for Region 9, on May 26, 1966 , issued an order
consolidating cases, consolidated complaint, and notice of
hearing against Respondents. The complaint alleges that
Respondents picketed Terry Elkhorn and/or Mahan Coal
Company, herein called Mahan , or caused them to be
picketed , with an object of requiring them to recognize or
bargain with Respondents or one of them as the bargaining
representative of the employees of Terry Elkhorn or
295-269 0-69-37
564 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mahan, and/or requiring the employees of Terry Elkhorn
and/or Mahan to accept or select Respondents or one of
them as collective-bargaining representative; that
Respondents were not certified as bargaining
representatives of said employees, and that the picketing
had been conducted by Respondents for more than 30
days without a petition having been filed under Section
9(c) of the National Labor Relations Act, as amended,
herein called the Act, involving the employees of Terry
Elkhorn or Mahan. Respondents filed their "Joint
Answers" in which, inter alia, they admitted that they
were not certified as collective-bargaining representatives
of said employees but otherwise denied all allegations of
unfair labor practices. A hearing on the complaint was
held in Pikeville, Kentucky. At the opening of the hearing
on July 12, 1966, Respondents made a motion to postpone
the hearing indefinitely and to hold it in abeyance until
disposition by the United States Court of Appeals for the
Sixth Circuit of a certain petition for adjudication in civil
contempt of Respondents and of C.E. Beane, the president
of District 30, and of five individuals named in the present
complaint as field representatives and agents of
Respondents. The Trial Examiner denied the motion.' The
hearing was held on July 12-15, on which last date the
General Counsel rested. Counsel for Respondents having
requested a continuance before proceeding, the hearing
was adjourned to September 20, 1966. On September 14,
1966, counsel for Respondents wrote to the Chief Trial
Examiner as follows:
In Re: Case Nos. 9-CP-51-1 and 9-CP-51-2
customers located outside Kentucky. At the time of the
events here in question Terry Elkhorn had approximately
50 employees.
Marshall Mahan is an individual doing business under
the name Mahan Coal Company. At all times material to
this proceeding he was engaged in operating a tipple for
the processing and shipping of coal. Mahan's tipple was
located at Auxier, Kentucky, on land leased by a railroad
company to Terry Elkhorn. Mahan had built it at his own
expense at a cost of $50,000. By agreement with Terry
Elkhorn it was used exclusively for processing Terry
Elkhorn's coal and loading it on the railroad cars in which
it was transported to its destination. Mahan was paid by
Terry Elkhorn on a tonnage basis and received in excess of
$80,000 per year for his services. At the time of the events
here in question Mahan had six employees on his payroll.
As Terry Elkhorn annually sells and ships coal valued in
excess of $50,000 from points in Kentucky to customers
located outside Kentucky, and as Mahan annually
performs services valued in excess of $50,000 for Terry
Elkhorn, it is found that Terry Elkhorn and Mahan are
each an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It. THE LABOR ORGANIZATIONS INVOLVED
District 30, United Mine Workers of America, and
United Mine Workers of America are each a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Gentlemen:
With reference to the above numbered cases in
which a hearing has been scheduled at Pikeville,
Kentucky for September 20, 1966 at the hour of 10:00
A.M. (EST), this is to advise that the respondents do
not wish to make any offer of proof therein, and that it
will not be necessary for the hearing to be resumed on
that date.
This notice is being given in order that the Trial
Examiner will not have to make the trip.
Please confirm the receipt of this notice by your
office.
Subsequently counsel for the General Counsel and for
Terry Elkhorn informed the Trial Examiner that they
consented to the closing of the hearing. On September 19,
1966, the Trial Examiner issued an order closing the
hearing and giving the parties time until October 25, 1966,
to file briefs with the Trial Examiner, which order was
served upon all parties. None of the parties filed a brief.
Upon the entire record, and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Terry Elkhorn is a Virginia corporation, licensed to do
business in Kentucky, where it is engaged in mining,
processing, and selling coal. Its annual production in
Kentucky is valued in excess of $900,000, approximately
90 percent of which represents coal shipped to its
' On July 19, 1966, Respondents' request to the Board for leave
to file an intermediate appeal from the Trial Examiner's ruling
was denied by the Board in a telegraphic order on the ground that
it had been rendered moot by the General Counsel's withdrawal of
A. Background
At the end of March 1966,2 Terry Elkhorn was engaged
in mining coal at two sites near Prestonsburg, Kentucky, a
strip mine on Lick Branch, and an auger mine on Long
Branch of Johns Creek, some 5 mines from the strip mine.
The strip mine was located 1-1/2 miles up a private road
from its entrance just off US Route 23. This coal was
hauled by truck from both mines to several tipples, where
it was processed and loaded for shipment. Some of the
trucks were operated by Terry Elkhorn employees, others
by independent contractors and their employees. One
tipple, Mahan's, was located at Auxier, a community some
6 or 7 miles from the Lick Branch mine, across the Big
Sandy River from Route 23 and accessible by a single
bridge which was a half mile from the tipple. Two of the
tipples were located at Hager Hill, approximately 11 miles
from the Lick Branch mine, one operated by Terry
Elkhorn and the other by an independent contractor.
Neither Terry Elkhorn nor Mahan had collective-
bargaining relations with any labor organization.
B. The Alleged Picketing and its Object
On or about March 25 Larry Dale Miller, one of Terry
Elkhorn's truckdrivers, was waiting in line for his
truckload of coal to be dumped into Mahan's tipple in
Auxier when he was approached by J. D. Newberry.
Newberry introduced himself and said that he represented
the United Mine Workers Union and was trying to organize
the men prior to calling a strike and picketing. Miller
refused to join. Newberry had previously spoken to the
certain subpenas directed to Beane and the five other individuals
referred to
2 All dates, unless otherwise specified, are in 1966.
DISTRICT 30, UMW
drivers ahead of Miller in the line and it is inferred that
Newberry had also solicited them to join the Union.
The following Thursday, March 31, 15 to 20 men entered
upon Terry Elkhorn's Lick Branch mining property and
approached Terry Elkhorn's bulldozer operators.
Early that same day large groups of men assembled at
the Route 23 end of the bridge into Auxier. During the
morning 60 to 75 men entered upon the tipple premises,
roamed around, and asked various employees of Mahan to
join the Union. Among those solciting the employees were
Joe Castle and Nobel Hobbs, both field representatives of
Respondents, Newberry, and Estill Newsome. The men
crowded around the trucks, which were thus unable to
proceed to the ramp from which the coal was to be
dumped. In addition Castle and Newsome parked their
cars on the driveway over which the trucks drove to and
from the ramp, so that the trucks could not get in or out.
Castle refused Mahan's request that he remove his car and
when Mahan wrote the license number down, Castle, in
the presence of employee truckdrivers of Terry Elkhorn,
grabbed his wrist and attempted to take Mahan's notebook
away. Newsome "dared" Mahan to take his license
number; Mahan wrote it down after walking away. Mahan
and Charles Hovatter, owner and chief officer of Terry
Elkhorn, after verifying that Castle and Newsome owned
the two cars, obtained warrants for their arrest and
returned to the tipple. By that time all the men had left.
Mahan's employees, however, refused to operate the
tipple, claiming that they had promised not to. Mahan
therefore himself processed the coal on hand and loaded it
into the railroad cars.
The next day, April 1, the tipple was not operated, but a
restraining order as to picketing directed to Castle,
Newsome, Newberry, and other individuals was issued by
the Circuit Court of Floyd County. On April 2 Mahan's
employees operated the tipple without incident.
On Monday, April 4, large groups of men stationed
themselves at Mahan's tipple in Auxier, on Route 23 at the
bridge into Auxier, and in the area between Route 23 and
the entrance to the Lick Branch mine.3 Some of the same
individuals appeared at all three locations. Among those
with the group at the Auxier tipple were Castle, Hobbs,
Joe Davis, Walter Akers, Newberry, and Newsome. Davis
and Akers, like Castle and Hobbs, were field
representatives of Respondent. At least Castle was also
with the group across the Auxier Bridge. At one point the
group at the Auxier tipple left and proceeded to the Lick
Branch mine entrance.
On April 4, a number of pickets followed Harry Wright,
a contract hauler for Terry Elkhorn, from the strip mine
entrance to Auxier, where he dumped his coal at the
tipple. As pickets hemmed his truck in, he parked it along
with other trucks, driven by Terry Elkhorn employees,
which were similarly blocked. Hobbs, accompanied by
Newberry, approached Wright and asked him to stop
hauling for Terry Elkhorn, saying that if he took his trucks
away, the Company would quit; and Newberry asked
Wright to sign a United Mine Workers membership card.
After a time Hobbs advised Wright not to make another
trip, saying, "I wouldn't want to see you get hurt, Harry."
Two Terry Elkhorn employees were sitting with Wright at
the time. Akers came up and also asked Wright to join the
Union, saying, "If this coal is dumped here, it's going to be
' The question of whether these and other activities described
in this Decision constituted picketing within the meaning of
Section 8(b)(7) of the Act is discussed below To avoid undue
complication of phrase the individuals engaged in the activities
565
union coal, to be dumped." George Green, a driver for
Terry Elkhorn, did sign a card on April 4 presented to him
at the Auxier tipple by Hobbs, who told him that the
employees had to organize or not work. Green could not
leave for some time, as the pickets remained standing in
front of the trucks until the sheriff came and served them
with some papers. On April 4 Henry Stricklin, driving a
truckload of coal for Terry Elkhorn, encountered 75 to 100
pickets at the Auxier tipple. Newsome approached him
and said, "We represent-the United Mine Workers. We'd
like you to join the Union." When Stricklin refused,
Newsome pointed out certain advantages if he joined then
rather than later. When Stricklin still refused to join,
Newsome summoned Field Representative Hobbs, who
came over and explained to Stricklin the various benefits
the Union could give him. Stricklin still refused to join.
That same day, driving from the Auxier tipple back to the
Lick Branch mine, Stricklin passed a group of 50 to 75
pickets at the Route 23 end of the Auxier Bridge. Field
Representative Castle was among them. As Stricklin
passed the pickets, one of them, Mack Rose, tossed some
tacks into his path and a few minutes later he had a flat
tire.
On April 4 Davis approached Mahan at the Auxier tipple
and introduced himself as a field representative of the
United Mine Workers. He asked Mahan why he "wasn't a
good fellow and go ahead and sign a United Mine Workers
contract." Mahan said he could not. Mahan, observing that
pickets prevented his men from moving a coal car to the
loading point, went to do it himself, taking with him a
pinch bar with which to start the car rolling down the
incline to the loading point. Hobbs stood between the cars,
preventing Mahan from reaching the uncoupling lever.
Mahan pushed Hobbs, who pushed back. It is inferred that
Mahan's employees witnessed the incident. The man with
Hobbs tried to take the pinch bar from Mahan, but Hobbs
ordered it returned. The man complied, asking Mahan how
he would like it if he "beat hell out of" Mahan with the bar.
The trucks stopped bringing coal to the tipple that day
and Mahan and Hovatter left Auxier to consult their
lawyer. They decided not to operate the tipple until after a
hearing scheduled for the next day before the Circuit
Court of Floyd County on the restraining order which had
been issued Mahan returned to the tipple, where he found
100 to 150 of the pickets still there. He asked to speak to
Hobbs and 5 minutes later Hobbs came over. Mahan asked
Hobbs for permission to dump the eight or nine loaded
trucks standing near the ramp, promising to stop further
work until after the hearing the following day. Hobbs
spoke to the men around him and they agreed to permit
Mahan to dump the coal. Mahan pointed to half a keg of
nails strewn on the road leading to the ramp and asked
Hobbs how the trucks were going to go over the nails.
Hobbs replied that they could go round the side. However,
when Mahan came back later, the nails were gone. As
Mahan's question to Hobbs implied an accusation that
Hobbs' fellow pickets were responsible for the nails and
Hobbs did not disclaim such responsibility, it is inferied
that the pickets placed the nails in the roadway.
About 7 carloads of coal were processed and loaded that
day at the Auxier tipple; normally Mahan ran 30 to 32
carloads. Wright's trucks made 3 runs of coal to the tipple
that day; normally they made 14.
will be referred to for the present as pickets Such reference
standing alone shall not be deemed to constitute a finding they
were engaged in picketing within the meaning of Section 8(b)(7)
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Aprils Mahan made no attempt to operate the
tipple
On April 5 the Circuit Court of Floyd County issued an
order modifying the restraining order issued on April 1 by
providing, inter alia , that the defendants named and
persons acting in concert with them should have the right
to engage in peaceable picketing by specified numbers of
persons at the Auxier tipple, at the Lick Branch mine
entrance, and at a third location which apparently was
near Terry Elkhorn' s auger mine . It further provided that
they could talk with and solicit employees "of the
defendants"-an obvious inadvertence-"to join labor
organization in a peaceable manner." The order also
provided, "Except as hereinabove modified and amended,
the original restraining order entered herein shall remain
in full force and effect until further orders of the court."
Starting on April 64 an automobile belonging to one
"Slim" Mann stood off Route 23 near the entrance to the
Lick Branch mine with a large sign draped over it reading,
"UMW of A pickets."5 The car, with the sign on it, was at
that place every workday until May 10. Varying numbers
of pickets came in cars and stood or sat around the
automobile with the sign and the mine entrance, including,
from time to time, Castle, Davis, Akers, Hobbs, and
Newberry. Castle was there virtually every day.6 A
substantial number of the pickets were identified by
witnesses as workers in the coal mining industry or as
members of the United Mine Workers.
On April 6 pickets at the Lick Branch mine entrance
threw rocks at Terry Elkhorn trucks driven by employees
Witten and Harless. On April 7, near the Auxier Bridge,
one of the pickets drove his small pickup truck in front of
the Terry Elkhorn truck being driven by Harless,
deliberately causing a collision in the presence of some
150 pickets. On April 8, as Harry Wright, his son whom he
employed, and Miller, a Terry Elkhorn driver, were driving
their respective trucks off Route 23 to the Lick Branch
mine entrance, Castle, who was there with some 100 to 150
pickets, threw a rock at Wright's truck. A number of the
other pickets then threw rocks at Wright. Akers, who was
across the road, drew back to throw a rock which he had in
his hand at Wright' s son , but he desisted when he saw that
he was being observed by Wright. The rock throwing,
including Castle's participation, was observed by Miller.
On Monday, April 11, Stricklin and Rice, passing in a
Terry Elkhorn truck on Route 23 near the Lick Branch
mine entrance, one driving and the other "riding
shotgun"7 were attacked with rocks by a dozen or two
pickets at close range. Both men were struck by the rocks
and Stricklin got splinters of glass in his eye, which started
to bleed. He required medical attention. On April 19
Wright was driving his empty truck on the road leading
from Route 23 to the Lick Branch mine entrance. He was
following his son, who was driving his other truck. About
20 pickets were hidden behind a hill, lying in wait. As the
trucks came over the crown of the hill, the pickets let fly a
' This date was fixed by Hovatter, on the basis of his diary
5 See G C Exhs 7D and 2E
R H B Rainer , a businessman in the area, testified that on or
about April 8, on his way to a conference with Hovatter, he saw C
E Beane, president of District 30 and a member of the UMW
International's executive board , sitting with Castle in a car near
the Lick Branch mine entrance He stated that he had known
Beane for some 8 years but that he and Castle were sitting with
their backs to him and he was driving at 60 to 65 miles an hour, so
that he could not be sure it was they, that he had been expecting
Beane to get in touch with him and therefore asked Hovatter if
that had been Beane whom he had observed near the Lick Branch
barrage of rocks, breaking the windshield and door glass
on Wright's truck and putting holes and large dents in the
son's. Solid steel ball bearings were also projected at the
trucks. Wright was struck by a stone, and when he stood
on the running board to escape the brunt of the barrage, he
was struck again and thrown off. Witten, a Terry Elkhorn
driver, came up while the pickets were speaking to
Wright. He observed the broken glass on Wright's truck
and extracted a solid steel three-quarter inch ball bearing
embedded in one of the windows of the door. He also found
a fork-type slingshot lying on the ground near Wright's
truck. Rice, another Terry Elkhorn driver, emerging with a
truckload of coal from the entrance to the mine, observed
the two trucks with the glass broken out and a group of
some 50 pickets standing on the bank with rocks in their
hands. A picket demanded that he sign a union card, but
he replied that he was not interested in such an
organization. On that same day when Rice was returning
to the mine entrance with his empty truck, a picket threw
a rock which broke his windshield.
Stones were thrown at the trucks by pickets on many
occasions other than those described above. Often they
would hit the bed of the truck and no damage was done.
Flat tires, caused by nails, were a daily occurrence during
the entire 5-week period up to May 10, but, except for the
Mack Rose incident and Mahan's conversation with Hobbs
at the Auxier tipple, both on April 4, there is no direct
evidence connecting Respondents or the pickets with the
nails. Pickets threatened employees and called them
scabs, yellow dogs, and similar epithets, often driving
alongside them on the highway to do so.
At the end of the workday on May 10 "Slim" Mann told
Music, a State trooper on duty with a picketing detail
assigned to the area at the time, that there was to be no
further picketing. Thereafter no further activity occurred
at the Lick Branch mine entrance so far as is disclosed by
the testimony.
On the morning of April 6 some 100 or more men came
to Terry Elkhorn's Hager Hill tipple, many, among them
Newberry and Castle , entering the tipple premises. Four
persons employed by Terry Elkhorn were working there at
the time , including Dale Lynch , the tipple foreman . Castle,
accompanied by the other intruders, approached Lynch
and ordered , "Shut this tipple down and keep it shut
down." When Lynch demurred Castle said he would have
to "that's an order from me." Castle warned that if Lynch
tried to run the tipple , "there would be some one come
after you and bring you out." He also asked Lynch to sign
a union card and said that he would have to before he
could work any more, but Lynch refused. Finally Castle
ordered Lynch, "Take your ass and get out of here, and
don't you never come back ." One of the employees signed
a union card and joined the pickets.
At the Auxier tipple Mahan resumed operations on
April 6 at 6 o'clock in the morning. Within an hour and a
half 400 or 500 men appeared, among them Joe Davis.
mine entrance Rainer 's identification of Beane was admittedly
uncertain Moreover, although many witnesses testified that they
had been in the area of the entrance to the Lick Branch mine or
the Auxier tipple numerous times during the 5 weeks of activities
here in question , Rainer was the only one who testified that Beane
appeared at any of the allegedly picketed areas during that entire
period Even though Rainer impressed the Trial Examiner as a
truthful witness and his testimony stands uncontradicted,
therefore , no finding is made that Beane was near the mine
entrance on the occasion testified to by Rainer
' "Riding shotgun" did not necessarily mean that the person so
riding carried a shotgun or any other weapon
DISTRICT 30, UMW 567
About 25 or 30 of the pickets , including Davis, advanced to
the loading point and asked to speak to Mahan's
employees . Davis told Mahan that he was there to help
keep the men with him peaceful . He warned , however,
that if the tipple was started up again there would be
trouble. On that day , when Harless was at the Auxier
tipple, rocks were thrown at his truck from the railroad
above the road leading to the tipple. On April 7 Mahan
started to operate the tipple once more . The pickets came
back . About 9 o'clock in the morning his employees told
him that they could not work under those conditions and
he therefore shut the tipple down.
Hovatter testified that about April 17 he saw a group of
pickets gathered near the Auxier tipple and that one of
them was holding a cardboard sign , about 2 feet square
and apparently "home - made," reading "UMW pickets."
He stated that that was the only occasion when he saw a
picket sign at the Auxier tipple . 8 Mahan testified that he
never saw a picket sign near his tipple.
The tipple remained shut down until May 8 when Mahan
started to operate again . Within an hour 25 or 30 pickets
were on the scene. The tipple ran for 4 consecutive days
and the pickets were present each day , roaming about on
the promises . On one of those days they blocked the
roadway leading to the loading ramp . When it was
confirmed that the owner of the roadway had given the
pickets authority to block the road , the drivers were
instructed by Hovatter to go round through an alley, which
they did . A picket followed the trucks in through the alley
with his car and blocked the trucks in there. Hovatter went
to the point where the roadway was blocked and found
Newberry and 8 or 10 other pickets standing there.
Newberry shook his hand at Hovatter and said , " By God
we're going to force you to sign a union contract one way or
another." At the end of the fourth day Mahan 's employees
told him that they were afraid they would be killed and
could not work under those conditions . Mahan then closed
the tipple down again.
Mahan next attempted to operate his tipple on May 16.
Pickets appeared who threw rocks and broke the
windshields of several trucks. Mahan 's own car was struck
and a hole made in it. As a result of the rock throwing
Mahan stopped operating the tipple by 8:30 a.m.
The next day , May 17 , Mahan again operated the tipple
and processed some coal . When he attempted to leave
Auxier to go to Hager Hill, his car was blocked by a large
number of school children and women . He called the State
Police, who pushed the children little by little so that
Mahan could move his car . It took the police 15 minutes to
enable him to move his car one block . Holly Sturgill who
had frequently been among the pickets ,9 walked alongside
the car holding in his hand a knife with a 4-1/2 inch blade.
Shortly after 6 that evening , when Williams and Griffin,
Mahan 's night watchmen , approached the tipple, they
found the way blocked by some 200 women and children.
The women called the men scabs and told one he was "a
right good -looking man" and they wanted him to stay that
way and go home . The men called Mahan , who instructed
them to go home. That night Mahan 's tipple was destroyed
and thereafter he made no attempt to return to Auxier.
C. Evidence as to Respondents ' Responsibility for the
Alleged Unfair Labor Practices
The complaint alleges, inter alia, that Akers , Castle,
Davis, and Hobbs have been at all times material field
representatives of District 30 and/or the UMW
International , and agents of both acting on their behalf.
Respondents ' joint answer admits that those four
individuals have been field representatives as alleged in
the complaint.
Counsel for the General Counsel placed in evidence
certified copies of the annual reports for the year ended
December 31, 1965 , of District 30 and of the UMW
International filed with the Office of Labor-Management
and Welfare -Pension Reports . 10 The UMW International's
report states that it covers the financial transactions of the
UMW International and of all its districts . Both reports
include on "Schedule 9-Disbursements to Employees"
payments of salaries and expenses to Castle, Davis, and
Hobbs, and two other individuals , each designated as
"representative " on the District 30 report and as "district
representative" on the UMW International 's report. The
UMW International 's report states for each of the five
persons so listed the identical amounts for salary and
expenses stated for him on the District 30 report , and it is
inferred that the two reports duplicate each other with
respect to the disbursements to the five field
representatives listed . Four of the salaries listed are in
excess of $ 10,000 ; the fifth is in excess of $8,000. The
expenses range from about $2,800 to $3,800. The UMW
International 's report also shows, on "Schedule 8-
Disbursements to Officers ," payments of salary and
expenses to C. Edward Beane as a member of the UMW
International Executive Board , and to Matt Combs as
district secretary -treasurer. Schedule 8 on District 30's
report lists Beane as president and Combs as secretary-
treasurer but shows no disbursements to either. The
District 30 report was signed by W. A. Boyle and John
Owens, president and treasurer , respectively , of the UMW
International , and by Beane and Combs as trustees. It
includes a sheet entitled "Information and Signature
Sheet for Financial Report of Labor Organization under
Trusteeship ," which includes the following printed
matter:
Section 301 requires that , during the continuance of a
trusteeship , the labor organization which has
assumed trusteeship over a subordinate labor
organization shall file the annual financial report on
behalf of the subordinate labor organization. A
terminal financial report must also be filed after the
termination of a trusteeship . The use of Form LM-2 is
required for the annual financial and terminal
financial reports of labor organizations under
trusteeship .. . . The financial report for a labor
organization under trusteeship must be signed by the
" On cross - examination Hovatter stated, in response to
counsel 's leading question , that he had seen "this sign" daily from
March 31 up to May 10 . However , the witness apparently
confused the Auxier sign with the sign at Lick Branch, about
which he had testified a moment before
" Sturgill was one of the men named as defendants in the
injunction proceeding brought in the Circuit Court of Floyd
County.
10 Forms LM-2, G.C Exhs 13 and 14 . The District 30 report was
filed with the Department of Labor on April 8 , 1966 . The UMW
International 's report was executed on April 15,1966 Pursuant to
the Trial Examiner 's order at the hearing , certified copies of the
two reports were substituted for the uncertified copies received in
evidence at the hearing
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president and treasurer ... of the organization which
has assumed trusteeship as well as by the trustees of
the subordinate labor organization.
Under Section 301(e) of the Labor Management
Reporting and Disclosure Act of 1959, each individual
required to sign this report is personally responsible
for the filing of such report and for any statement
therein which he knows to be false.
* * * * *
Each of the undersigned, trustees of the above labor
organization declares, under the applicable penalties
of law, that all information contained in the attached
financial report (LM-2) ... has been examined by him
and is to the best of his knowledge and belief, true,
correct and complete.
The UMW International's constitution " contained the
following provisions:
"under the direction of the International President or the
International Executive Board ...." The constitution
contained no reference to "representatives " or "field
representatives ." One witness testified that he had been
informed that individuals identified as field
representatives were "organizers ." The record contains no
explicit evidence of field representatives ' duties,
functions, or authority or of the manner of their
appointment.
D. Concluding Findings
1. Responsibility of the Respondents
The Labor-Management Reporting and Disclosure Act
of 195914 contains the following provisions:
§ 402.
For purposes of this chapter-
* * *
ARTICLE III
JURISDICTION
Section 1. The International Union shall be
composed of workers eligible for membership in the
United Mine Workers of America, and may be divided
into Districts, Sub-Districts and Local Unions. The
International Union shall have supreme legislative,
executive and judicial authority over all members and
subordinate branches , and shall be the ultimate
tribunal to which all matters of importance to the
welfare of the membership and subordinate branches
shall be referred for adjustment. Between
International Conventions the supreme executive and
judicial powers of the International Union shall be
vested in its Executive officers and Executive Board
in accordance with and subject to the provisions of
this Constitution.
Sec. 2. All Districts, Sub-Districts and Local Unions
must be chartered by, and shall be under the
jurisdiction of and subject to the laws of the
International Union and rulings of the International
Executive Board. Charters of Districts, Sub-Districts
and Local Unions may be revoked by the
International President, who shall have authority to
create a provisional government for the subordinate
branch whose charter has been revoked. This action
of the International President shall be subject to
review by the International Executive Board upon
appeal by any officers deposed or any members
affected thereby. Until such review is had and unless
said order of revocation is set aside, all members,
officers, and branches within the territory affected by
the order of revocation shall respect and conform to
said order. An appeal may be had from the decision of
the Executive Board upon such order of revocation, to
the next International Convention.
The constitution provided 12 that the UMW International
president might appoint "such organizers , field and office
workers" as might "be necessary to conduct the affairs of
the International Union"; and it further provided13 that
"Organizers' Commissions were to be signed by the
International President and attested by the International
Secretary-Treasurer" and that organizers were to work
" G C Exit 15
1d Article IX, section 5
*
(h) "Trusteeship " means any receivership,
trusteeship , or other method of supervision or control
whereby a labor organization suspends the autonomy
otherwise available to a subordinate body under its
constitution or bylaws.
* * *
§ 461.
(a) Every labor organization which has or assumes
trusteeship over any subordinate labor organization
shall file with the Secretary within thirty days after
September 14, 1959 or the imposition of any such
trusteeship, and semiannually thereafter, a report,
signed by its president and treasurer .... as well as
by the trustees of such subordinate labor
organization , containing the following information
.... During the continuance of a trusteeship the labor
organization which has assumed trusteeship over a
subordinate labor organization shall file on behalf of
the subordinate labor organization the annual
financial report required by section 431(b) of this title
signed by the president and treasurer . . . of the labor
organization which has assumed such trusteeship and
the trustees of the subordinate labor organization.
* * * * *
§ 462.
Trusteeships shall be established and administered
by a labor organization over a subordinate body only
in accordance with the constitution and bylaws of the
organization which has assumed trusteeship over the
subordinate body ....
The action of the UMW International and of District 30
in filing the annual financial report of District 30 as the
report of a "labor organization under trusteeship"
constitutes an admission by both Respondents that such a
trusteeship was in existence at the end of 1965. In the
absence of evidence to the contrary it is presumed that
such trusteeship continued at least up to the date of the
hearing.
The only provision in the UMW International's
constitution for a "method of supervision or control
whereby ...." the UMW International was empowered to
suspend "the autonomy otherwise available to ...."
District 30 is article III, section 2, with respect to
"provisionalism," quoted above in section III, C, of this
'1 Article XVII
14 29 U S C A §§ 402(h), 461 (a), and 462 , 73 Stat 519
DISTRICT 30, UMW 569
Decision. 15 It is found, therefore, that the UMW
International's president has revoked District 30's charter
and that its present government was created by him as
provided in article III, section 2 of the constitution.
It is significant that Akers, Castle, Davis, and Hobbs, all
of whom participated fully in the activities at issue in this
case, are paid field representatives not only of District 30
but also of the UMW International. It is also significant
that District 30's principal officers, namely its president
and secretary-treasurer, are paid solely by the UMW
International. In view of this fact, and of the further fact
that as trustees they have been appointed by the UMW
International, it is reasonable to assume, and it is found,
that they were made president and secretary-treasurer by
the UMW International.
It is found that the UMW International exercises such
control over the policies and operations of District 30 that
it shares with District 30 responsibility for the latter's
activities.16
Starting on March 31 Respondents' agents, Akers,
Castle, Davis, and Hobbs, were frequently with the groups
of men stationed at the Auxier tipple, across the Auxier
bridge on Route 23, and at the entrance to Lick Branch
mine. They were aware that the UMWA sign was always
on display at the last location and they witnessed and
participated in many of the activities of the pickets at all
three places. Castle accompanied the 100 men who visited
the Hager Hill tipple on April 6 and acted as their
spokesman, and there are several other instances where
the testimony establishes that the field representatives,
especially Castle and Hobbs, acted as leaders and
spokesmen for the men. The record contains no
explanation of the prolonged presence of these
substantially paid employees of Respondents at the
picketed areas or of their active participation in the events
that occurred other than that they were present in their
official capacity as agents of Respondents . It is found that
their actions and statements were actions and statements
of Respondents. 17 Except for Hobbs' order to return the
pinch bar to Mahan, described above, which, significantly,
was promptly complied with, there was no instance where
any of the four field representatives in any way repudiated
or attempted to restrain any action of the pickets.
Moreover, they all themselves engaged in violence or
threats of violence. It is, accordingly, found that the
presence and all the activities of the groups of men at the
Auxier tipple, across the Auxier bridge, at the Lick Branch
mine entrance, and at the Hager Hill tipple were instigated
by Respondents or, if not so instigated, were ratified and
adopted by Respondents.
2. The alleged picketing
From April 4 to May 10 Respondents' agents and groups
of men were regularly stationed near the entrance to the
Lick Branch mine, where they confronted Terry Elkhorn
employees and attempted to persuade them to join the
United Mine Workers of America. From April 6 on a large
sign was always present identifying them as "UMW of A
pickets." It has been established that such activity, even
without ambulatory patrolling, constitutes picketing within
the meaning of Section 8(b)(7) of the Act.18
The activities at the Auxier tipple, where no picket sign
was displayed except on a single day, raise the question of
whether the presence of a sign or some equivalent device
is an essential ingredient of picketing within the meaning
of Section 8(b)(7). The scope of the word "picket" as used
in the 1959 amendments to the Act is not delineated in the
Act.19 By using the word "picket" in Section 8(b)(7), as
opposed to more general language, such as is used in
subparagraphs (i) and (ii) of Section 8(b)(4), and by
referring to "publicity other than picketing" in the second
proviso to Section 8(b)(4) Congress seems to have
indicated that it regarded "picketing" as a "specific kind
of publicity, focusing, it would seem, on the form rather
than the result of such publicity. 1120 Thus, Senator
Goldwater, one of the Senate floor managers of the bill
providing for the amendments, stated during the
debates:21
Our liberal friends argue that the union needs the
picket line .... [in] order to organize the sweatshop
or the shop of the substandard employer. The answer
is obvious: The employees of an employer of that type
can be organized quickly and easily by the traditional
method of handbills, meetings, and home visits.
Picket as applied to labor relations apparently derives,
by extention, from the military term '22 although it
connotes a hostile rather than a friendly attitude towards
the place picketed. It is true that it now conjures up the
image of men with signs, and members of Congress so
visualized it during the debates.23 However, what
15 A trusteeship may not be established over a subordinate
branch of a labor organization unless the constitution or bylaws of
the parent organization makes provision therefor United
Brotherhood of Carpenters and Joiners v Brown, 343 F 2d 872,
881, Flight Engineers International Association, AFL-CIO, CAL
Chapter v Continental Airlines, Inc , 297 F 2d 397, 402 (C A 9),
cert. denied 369 U S. 871
is International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO (E G Delia &
Sons Construction Corp), 117 NLRB 1401
1' Distinguish Local Unions Nos 8505, 8915, 5899, 7788 and
8161, District 30, United Mine Workers of America (Harold Fuel
Company, Inc), 146 NLRB 652, 658, where no picket signs were
used and where union officials expressly announced that they
were acting as individuals, and not in their official capacity
" N L R B v Local 182, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Woodward Motors), 314 F 2d 53, 57, enfg. 135 NLRB 851,
distinguish N L R B v United Furniture Workers of America
(Jamestown Sterling Corp), 337 F.2d 936 (C A.2), remanding 146
NLRB 474
14 See Service and Maintenance Employees Union, Local 399,
AFL-CIO (The William J Burns International Detective Agency,
Inc), 136 NLRB 431, 436
20 See Duffy, Picketing by an Uncertified Union The New
Section 8(b)(7), 69 Yale L J 1393, 1395-98 (1960), see also William
J Burns International Detective Agency, Inc , supra, 437, 442, fn
12, and N L.R B v United Furniture Workers of America, supra
21 105 Cong Rec 5969 (daily ed April 24, 1959), II Leg Hist.
(LMRDA),1192(1)
22 See Webster's New International Dictionary, first edition,
1933, definition 4
23 See, for example, the following remarks of prominent
proponents and opponents of the amendments reported in 105
Cong Rec
5971, April 24,1959 (I1 Leg Hist. (LMRDA), 1194)
MR MCCLELLAN .. In addition, the merchant's
customers would be embarrassed . They would see the
picket sign
15901, August 28, 1959 (II Leg. Hist 1378)•
MR. DIRKSEN the pickets show up at the customers'
plant in St Louis. We spend the day discussing what shall
appear on the signs. .
16398, Sept 3,1959 (II Leg Hist 1427)
MR MORSE. . Certainly, Mr President, public
knowledge of labor practices on the part of an employer, as
disclosed by picket signs, sometimes proves to be very
embarrassing to the employer
14193, August 11, 1959 (II Leg. Hist 1566)
MR. SHELLEY They want to tell me I cannot carry a
sign in front of a department store saying. .
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Congress aimed at in Section 8(b)(7) was the utilization,
with an organizational or recognitional object, of a type of
organized activity which appeals for action and which does
so independently of any message conveyed concerning the
dispute.24 The fact that such an appeal is usually brought
home through the use of signs does not mean that
Congress intended so to delimit the unfair labor practice
described in Section 8(b)(7).
It is unnecessary to meet the question of whether the
presence at the Auxier tipple of a number of men
appropriate for mere organizing and not displaying signs or
other devices proclaiming their identity or purpose would
be an activity aimed at in Section 8(b)(7). The presence at a
place of employment of Respondents' field representatives
and groups of men all out of proportion to a purpose
limited to organizing, their remaining on watch while work
was carried on, and their reappearance whenever
operations were attempted after a shutdown were plainly
calculated to make an appeal of the type described above
for action against Mahan. As these activities were fairly
within the general concept of the word "picketing" and
were of such a nature as to appeal for action independently
of any message as to the dispute, it is found that they
constituted picketing of Mahan within the meaning of
Section 8(b)(7) of the Act.25
Neither the U1vIW International nor District 30 was
currently certified as the representative of Terry Elkhorn's
nor Mahan's employees at the time of the picketing; and
Respondents conceded that no petition had been filed
under Section 9(c).
The picketing at the Lick Branch mine entrance was
conducted every workday for more than 30 days, thus
plainly exceeding the "reasonable period of time" allowed
by Section 8(b)(7)(C) for picketing to be conducted without
a petition being filed.
With respect to the Auxier tipple the evidence
establishes that picketing took place at least on March 31,
April 4, 6, and 7, and on May 3, 4, 5, 6, and 16,26 and that
the tipple was shut down on the intervening workdays
because of such picketing. The evidence further
establishes that all the picketing was in furtherance of a
single, uninterrupted campaign by Respondents to
organize the employees of Terry Elkhorn and of Mahan
and that, while the pickets may have withdrawn when the
tipple was shut down, they always reappeared promptly
upon resumption of operations. It is found that
Respondents conducted picketing of Mahan for a period of
more than 30 days without a petition under Section 9(c)
being filed.27
3. The object of the picketing
On the basis of uncontradicted evidence so ample and
24 Building Service Employees International Union, Local 262
v. Gazzman, 339 U S. 532, 537, where the Court said:
picketing is more than speech and establishes a locus in
quo that has far more potential for inducing action or
nonaction than the message the pickets convey
25 In view of the facts already found, no finding need be made
as to whether the activity of the groups on Route 23 across the
Auxier bridge, which was half a mile from the tipple and was the
means of access from Route 23 to the entire Auxier community,
constituted picketing of Mahan, see Alden Press, Inc. (Chicago
Typographical Union No. 16), 151 NLRB 1666, or whether the
visit by Castle and a large group of men to the Hager Hill tipple
constituted picketing of Terry Elkhorn.
21 The incidents on May 17, when women and children blocked
the tipple, would not affect this aspect of the case and it is
unnecessary to decide whether they constituted picketing by, or
caused by, Respondents
clear as to require no discussion it is found that the
picketing of both Terry Elkhorn and of Mahan had an
object of forcing or requiring their respective employees to
accept and select District 30 and the UMW International
as their collective-bargaining representative.
The complaint alleges that the picketing of both Terry
Elkhorn and of Mahan also, or in the alternative, had an
object of forcing or requiring them to recognize and
bargain with Respondents or one of them. Apart from the
obvious fact that organizational picketing normally has as
an ultimate purpose bargaining and a collective
agreement, the only evidence offered by the General
Counsel tending to prove that the picketing had a
recognitional object was Akers' statement to Wright on
April 4 that if coal was to be dumped at the tipple it was to
be union coal, Newberry's remark to Hovatter, "By God
we're going to force you to sign a union contract one way or
another," and Davis' remark to Mahan asking him why he
"wasn't a good fellow and go ahead and sign a United Mine
Workers contract." Newberry was not proved to be an
agent of District 30 or the UMW International except,
possibly, to sign up members. Notwithstanding his
zealousness on the picket line, his statement to Hovatter is
not sufficient to establish a recognitional object of the
picketing on the part of Respondents. While Akers and
Davis were agents of Respondents, their statements were
isolated and contrast sharply with the plenitude of
evidence establishing Respondents' unconcealed
organizational object. No reason appears why
Respondents, if they were picketing with an object of
forcing Terry Elkhorn or Mahan to recognize them, would
fail to make that fact clear to those employers. In this
connection it is noted that Akers' statement was made to
Wright, who was not a picketed employer and who, in fact,
was asked to join the Union. It is found that the General
Counsel has failed to prove that Respondents' picketing
had a recognitional object.
It is found that by its picketing of Terry Elkhorn and
Mahan under the circumstances and with the object
described in the foregoing findings, and by causing such
picketing, Respondents, and each of them, engaged in
unfair labor practices in violation of Section 8(b)(7)(C) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth above in section
III, occurring in connection with the operations of Terry
Elkhorn and of Mahan described above in section I, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
2' See Butchers' Union, Local No 120, Meat Cutters (Moniz
Portuguese Sausage Factory), 160 NLRB 1465 It may be noted
that in view of the extensive violence, including the blocking of
ingress and egress, which accompanied the picketing at the tipple
and which occurred in the presence of Mahan's employees, and of
the acts of violence which occurred elsewhere but must have
come to the attention of his employees, a fair election under
Section 9(c) could not have been conducted among them In view
of this impossibility the picketing would have been conducted for
more than a reasonable period even if the period of picketing were
to be computed on the basis of days of actual picketing See
District 65, Retail, Wholesale & Department Store Union,
AFL-CIO (Eastern Camera & Photo Corp), 141 NLRB 991,
999-1000, see also Cuneo v United Shoe Workers of America,
AFL-CIO, Joint Council No 13 (Q T Shoe Mfg Co ), 181 F Supp
324,326
DISTRICT 30, UMW 571
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
As it has been found that Respondents have engaged in
certain unfair labor practices, it is recommended that the
Board issue the Recommended Order set forth below
requiring Respondents to cease and desist from said unfair
labor practices and to take certain affirmative action
which will effectuate the policies of the Act.28
Upon the basis of the foregoing findings of fact and of
the entire record in this case, the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
1. Terry Elkhorn Mining Company, Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
2. Marshall Mahan , doing business under the name of
Mahan Coal Company , is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and is, and at all
times material has been , an employer within the meaning
of Section 2(2) of the Act.
3. United Mine Workers of America and District 30,
United Mine Workers of America, are, and at all times
material have been , each a labor organization within the
meaning of Section 2(5) of the Act.
4. Neither the UMW International nor District 30 is, or
at any material time has been , certified as the
representative of any employees of Terry Elkhorn or of
Mahan within the meaning of Section 8(b)(7) of the Act.
5. Respondents UMW International and District 30, by
picketing Terry Elkhorn and Mahan , and by causing said
employers to be picketed , with an object of forcing or
requiring their respective employees to accept or select
such labor organization , or one of them, as their collective-
bargaining representative , no petition under Section 9(c) of
the Act having been filed within a reasonable time from
the commencement of such picketing , have engaged in
unfair labor practices within the meaning of Section
8(b)(7)(C) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondents UMW International and District 30
have not picketed Terry Elkhorn or Mahan with an object
of forcing or requiring said employers or either of them to
recognize or bargain with Respondents or either of them as
the representative of their respective employees within the
meaning of Section 8(b)(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is hereby ordered that
Respondents, United Mine Workers of America, and
District 30, United Mine Workers of America, and each of
them, and their respective officers, agents, and
representatives, shall:
1. Cease and desist from picketing, or causing to be
picketed, Terry Elkhorn Mining Company, Inc., or
Marshall Mahan doing business as Mahan Coal Company,
where an object thereof is to force or require employees of
said employers to accept or select the Respondents, or
either of them, or any other labor organization, as their
collective-bargaining representative, in circumstances
violative of Section 8(b)(7)(C) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Post at the business offices and meeting places, if
any, of United Mine Workers of America located within
the territorial jurisdiction of District 30, and in all business
offices and meeting places of District 30 copies of the
attached notice marked "Appendix."29 Copies of said
notice, to be furnished by the Regional Director for
Region 9, after being duly signed by an official
representative of each Respondent, shall, be posted by
said Respondents immediately upon receipt thereof and
be maintained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to members of District 30 are customarily posted.
Reasonable steps shall be taken by the Respondents to
ensure that said notices are not altered, defaced, or
covered by any other material.
(b) Furnish to the Regional Director for Region 9 signed
copies of said notices for posting by Terry Elkhorn Mining
Company, Inc., and by Marshall Mahan doing business as
Mahan Coal Company, if willing, in places where notices
to their respective employees are customarily posted.
Copies of said notice, to be furnished by the Regional
Director, after being signed by official representatives of
the Respondents, shall, be forthwith returned to the
Regional Director for disposition by him.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of the receipt of this Decision
and Recommended Order, what steps Respondents have
taken to comply herewith.30
Z" The Trial Examiner does not interpret the Floyd County
Circuit Court' s order dated April 5, 1966, as authorizing picketing
which would conflict with this Recommended Order The April 5
order was a modification of the original restraining order issued
April 1 , 1966, apparently on the basis of mass picketing and
violence As such, and in view of the well-established state of the
law with respect to preemption-see San Diego Building Trades
Counsel v Garmon , 359 U S 236, Joseph Garner and A Joseph
Garner, tin Central Storage and Transfer Company v Teamsters,
Chauffeurs, and Helpers , Local Union No 776, 346 U S 485-the
order must be read as merely limiting the reach of the April 1
order , and not as an affirmative authorization of picketing with an
organizational object
d1 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board ' s Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
91 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 9, in writing , within 10 days from the
date of this Order, what steps Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS OF
AMERICA AND OF DISTRICT 30, UNITED MINE WORKERS
OF AMERICA
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, we hereby notify you that:
WE WILL NOT picket, or cause to be picketed, Terry
Elkhorn Mining Company, Inc., or Marshall Mahan
doing business as Mahan Coal Company, where an
object thereof is forcing or requiring employees of
said employers to accept or select us or any other
labor organization as their collective-bargaining
representative, in circumstances violative of Section
8(b)(7)(C) of the Act.
UNITED MINE WORKERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
DISTRICT 30, UNITED MINE
WORKERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3663.
Pascoe Steel Corporation and United
Steelworkers of America , AFL-CIO. Case
10-CA-6519.
March 23,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On September 28, 1966, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take - certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
' Azalea Meats, Inc , 159 NLRB 585, next to last paragraph of
part III, D, of the Trial Examiner's Decision
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent with our
decision herein.
The complaint herein alleged, and the General
Counsel argued before the Trial Examiner, that
Respondent's discharge of employees Dowdney and
Earnest for allegedly threatening a fellow employee
was a pretext to cloak a discharge for union activity.
The Trial Examiner stated that, although the facts
created a suspicion, he was of the view that the
General Counsel had not established that Dowdney
and Earnest were discharged because of their union
sympathies or activities in violation of Section
8(a)(3).
The Respondent's knowledge of the enthusiastic
support which these employees gave to the Union is
clear. Lee's questioning of, and threats to, them was
persistent and constituted continued violations of
the Act which are without dispute attributable to the
Respondent. And, Lee was deeply involved in the
reports of the alleged employee misconduct and the
subsequent discharge of the two. Lee was, in fact,
present when they were told they were terminated,
instructed them to punch out, and refused to permit
Earnest to discuss the situation with Murner. Under
all the circumstances, it is apparent that Lee's
antiunion bias carried over and played a part in his
activities in the discharges of Dowdney and Earnest,
and such bias was also attributable to the
Respondent. In this situation, it is immaterial that
Lee may have threatened and interrogated the
employees in direct disregard of Respondent's prior
instructions.' Rather, in view of Lee's unlawful
conduct, the timing of the discharges shortly after
the unlawful interrogation and threats, Respondent's
failure to secure their version of the alleged incident
from Dowdney and Earnest, and the precipitate
discharge of two competent and efficient welders,
although this was a category in which satisfactory
employees were in short supply, without even
granting Earnest's request to discuss the matter with
higher management, we are persuaded that the
General Counsel has established that the
Respondent discharged Dowdney and Earnest
because they were ardent union supporters rather
than because of their alleged threats to employee
Murner concerning the effects of a picket line if the
Union were selected and a strike ever occurred.2
Accordingly, we find that the record establishes that
I See Azalea Meats, supra, TXD re Edward Chandler.
163 NLRB No. 70