Local No. 7463, United Mine Workers

National Labor Relations Board - Board Decisions

Oct 4, 1966

160 N.L.R.B. 1589 (N.L.R.B. 1966)

LOCAL NO. 7463, UNITED MINE WORKERS 1589
thereof, and be maintained by it for 60 consecutive days, thereafter in such con-
spicuous places. Reasonable steps shall be taken by Respondents to insure that the
said notices are not altered, defaced, or covered by any other material.
(b) Forthwith mail to the aforesaid Regional Director for Region 9, signed
copies of said notices for posting by Seagraves Coal Company, Inc., if it so chooses,
in places where notices to its employees are customarily posted.
(c) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondents have taken to comply
herewith.'°
io In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps respondents have taken to comply lierem ith "
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT 19, UNITED MINE WORKERS OF AMERICA
AND LOCAL 6074, UNITED MINE WORKERS OF AMERICA, AND TO ALL EMPLOYEES
OF SEAGRAVES COAL COMPANY, INC.
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 Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT under conditions prohibited by Section 8(b)(7) of the Act,
picket, or cause to be picketed, or threaten to picket, Seagraves Coal Company,
Inc., where an object thereof is to force or require Seagraves Coal Company,
Inc., to recognize or bargain with us as the representatives of its employees, or
to force or require the employees of Seagraves Coal Company, Inc., to accept
or select us as their collective-bargaining representative.
DISTRICT 19, UNITED MINEWORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LOCAL 6074, 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 pro-
visions, they may communicate directly with the Board's Regional Office, Room
2023 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone
684-3627.
Local No. 7463, United Mine Workers of America (Harlan Fuel
Company ) and Southern Labor Union Local No. 206
District 19, United Mine Workers of America ( Harlan Fuel Com-
pany ) and Southern Labor Union Local No. 206. Cases 9-CP-
40-1 and 0. October 4.1960
DECISION AN!) ORDER
On July 1, 1966, Trial Examiner Phil Saunders issued his Decision
in the above-entitled proceeding, finding that the Respondents had
engaged in and Were engaging in certain unfair labor practices within
160 NLRB No. 129.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of the National Labor Relations Act, as amended, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondents filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 these cases, and hereby adopts the findings,, conclusions, and rec-
ommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'In agreeing with the Trial Examiner 's conclusion that the majority status of the
incumbent bargaining representative may not be placed in issue or litigated in this pro-
ceeding, we rely upon our decision in Roman Stone Construction Co . 153 NLRB 659,
and the fact that , in the instant case, the hearing commenced more than 6 months after
execution of the subsisting collective-bargaining agreement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Cases 9-CP-40- 1 and 9-CP-40-2, proceedings under Section 10(b) of the
National Labor Relations Act, as amended , herein called the Act, were heard before
Trial Examiner Phil Saunders in Harlan, Kentucky, on April 5, 1966, with all par-
ties participating pursuant to due notice on a consolidated complaint ,' alleging
violations of Section 8(b)(7)(A) of the Act by District 19, United Mine Workers
of America and Local 7463, United Mine Workers of America, hereinafter jointly
referred to as Respondents.
The consolidated complaint , in substance , alleges that although Harlan Fuel
Company, hereinafter called Harlan, had lawfully recognized the Charging Union
as the exclusive bargaining representative of its employees in an appropriate unit
and entered into a collective -bargaining agreement with the Charging Union,
Respondents picketed its coal mining operations , an object thereof being to force
or require Harlan to recognize and bargain with Respondents as the bargaining
representative of its employees . Respondents deny the commission of the alleged
unfair labor practices . All parties were afforded full opportunity to be heard, to
introduce relevant evidence , to present oral argument and to file briefs. General
Counsel and Respondents filed briefs which have been duly considered.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. COMMERCE
At all times material herein, C. S. Guthrie , trustee; Charles S. Guthrie , trustee
for estate of Clyde Guthrie ; Charles S. Guthrie , trustee for the estate of Cecil
Guthrie; Charles S. Guthrie , trustee for the estate of Elzo Guthrie , Jr.; Hobson
1 Based on charges filed in the respective cases herein on August 4, 1965, by Southern
Labor Union Local 206 , hereinafter referred to as the Charging Union . Said cases were
consolidated for hearing and the complaint is dated December 13, 1965.
LOCAL NO. 7463, UNITED MINE WORKERS 1591
Guthrie, trustee; Geneva Guthrie Gentry, trustee; and Mary Guthrie Miller,
trustee, are, and have been, copartners, doing business under the trade name and
style of Harlan Fuel Company, Harlan has been engaged at all times material
herein in the mining of coal at and near Yancy, Kentucky.
During the past 12 months, which is a representative period, Harlan had a direct
outflow of its coal products, in interstate commerce, of a value in excess of $50,000
which it sold and shipped from its said location at Yancey, Kentucky, directly to
points outside the State of Kentucky. During that same period, Harlan had a
direct inflow of material, goods and products, in interstate commerce, of a value
in excess of $50,000 which, in the course and conduct of its business operations, it
purchased and caused to be transported to its place of business at Yancey, Ken-
tucky, directly from points outside the State of Kentucky. I find that Harlan is
engaged in commerce within the meaning of the Act, and that it would effectuate
the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATIONS INVOLVED
At all times material herein, Local 7463 and District 19, herein the Respondents,
and each one of them, are and have been labor organizations as defined in Section
2(5) of the Act, and, at all times material, the Charging Party is and has been
a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The primary issue for consideration in this case is as follows: Whether Respond-
ents, in picketing the premises of Harlan, after Harlan executed a contract with
the Charging Union, violated Section 8(b) (7) (A) of the Act 2
This record shows that on July 13, 1964, the United Mine Workers, parent
organization of Respondents, canceled its contract with Harlan, and its employees,
who were members of Respondent Local 7463, ceased work and went on strike.
On or about July 15, 1964, the Respondents began picketing Harlan and picketed
until the parties entered into a stipulation filed in the United States District Court
on January 27, 1966, under the injunction procedure of the Act, and which pro-
vided that all picketing at Harlan would cease pending final disposition of this
case by the Board. On August 7 and October 23, 1964, in Cases 9-RC-6003 and
9-RC-6107, petitions were filed by United Mine Workers involving Harlan and
other employers, and these petitions were dismissed on the grounds of inappropriate
unit. On August 8, 1964, the Harlan circuit court entered an order (Respondent's
Exhibit 2) permitting and allowing picketing of Harlan and Scott Darby Coal
Company with 10 pickets at a common situs.
Harlan both owns and leases coal properties in the same general area near
Yancey, Kentucky, and for purposes here Scott Darby Coal Company, herein
Scott, leased a mine from Harlan and produced coal from such mine up to the
end of 1964. The lease was then terminated, and Charles S. Guthrie, general
manager of Harlan, purchased the stock of Scott and since January 1, 1965,
Harlan has owned and operated this mine. However, Guthrie did not dissolve
Scott, and the company name (Scott Darby Coal Company) is still in existence,
but without any functions or employees since January 1965.
This record further shows that in June 1965, Henry Manning and Ted Lewis
met with the Charging Union's second vice president, Noah Harris, to discuss
organizing Harlan employees. Lewis was provided with authorization cards and
.employee signatures were then obtained with Local 206 for the Charging Union
also being established. On July 19, 1965, the Charging Union's field representative,
Richard Davis, along with three employees, met with Charles Guthrie, general
manager of Harlan, and requested recognition as collective-bargaining representative
on behalf of the Charging Union. Guthrie had his office manager, Joe Sims,
check the signatures on the 76 signed union authorization cards presented on this
,occasion. Sims found 65 valid cards out of a maximum appropriate unit of 114
employees. Sims checked the signatures on the authorization cards against the
signatures of the employees on the personnel records maintained in the Harlan
office and who were employed by Harlan on this date. Harlan then granted rec-
ognition to the Charging Union, and following negotiating sessions on July 20
2 George Martin, Louis Branson, and Herbert Goodin are officers of Respondent Local
7463, and that Clarence Floyd and Noah Doss are field representatives of Respondent
District 19
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 29, 1965, the parties agreed to a contract. On July 29, 1965, the employees
ratified and the parties signed the collective-bargaining agreement which was effec-
tive August 2, 1965, for a 3-year period.
The Respondents mainly contend that their Local 7463 engaged in picketing in
conformity with the Harlan circuit court order as to Harlan and Scott until Janu-
ary 1966, at which time all picketing of Harlan ceased, and that after January
1966, following the Federal court order, the Respondents merely engaged in the
picketing of Scott. The Respondents further argue that the evidence in the record
fails to show that Respondents' District 19 engaged in the picketing at either Har-
lan or Scott, and that their Local 7463 had a right to engage in picketing as to
Scott by informing the public that Scott was not under contract.
Louis Branson , secretary of Respondents' Local 7463, testified that after can-
cellation of their contract with Harlan in 1964-they engaged in picketing as "we
wanted a contract." Branson admitted that the strike and picketing continued until
January 1966, and that they then picketed to get a contract with Scott. Branson
also testified that field representatives for Respondent District 19, Clarence Floyd
and Noah Doss, would check on the picket line "about every day" to see if the
pickets were complying with the orders issued by the Harlan circuit court. Branson
specifically identified Clarence Floyd and Noah Doss as representatives of Respond-
ents District 19, United Mine Workers of America, and that they were assigned
by District 19 to service the particular area in and around Harlan Kentucky.
Branson further testified that "officially" he had no knowledge that the Charging
Union had signed a contract with Harlan, but admitted that members of the
Respondent Local had heard about it and that they talked about it.
The office manager at Harlan, Joe Sims, testified that since July 19, 1965, he had
noticed or seen on many occasions pickets around the property of Harlan, and
stated that he had specifically seen Louis Branson, Robert Scott, Herbert Goodwin,
George Martin, and Clarence Floyd. Sims further stated that the picket signs used
by the pickets read: "United Mine Workers Local 7463 On Strike Against Yancey,"
but that after the direction or issuance of the Federal court decree in January 1966,
as aforestated, the picket sign read: "Scott Darby not under contract with UMWA,
Local 7463." Sims also verified the fact he found 67 valid authorization cards for
the Charging Union out of a unit of 114 employees.
Ted Lewis testified that after the contract was signed between Harlan and the
Charging Union (August 2, 1965), one of the pickets, Clarence Vannover, asked
Lewis if he would "stand out there with them" if they paid him "$25 a week."
Under Section 8(b)(7)(A) of the Act it is an unfair labor practice for a union
or its agents:
to picket or cause to be picketed, . . . any employer where an object thereof
is forcing or requiring an employer to recognize or bargain with a labor
organization as the representative of his employees, or forcing or requiring
the employees of an employer to accept or select such labor organization as
their collective-bargaining representative, unless such labor organization is
currently certified as the representative of such employees:
(A) where the employer has lawfully recognized in accordance with this
Act any other labor organization and a question concerning representation
may not appropriately be raised under section 9(c) of this Act.
I find no merit in Respondent's contention that District 19 was not engaged in
the picketing admittedly carried on by Local 7463. The credited evidence establishes
that Clarence Floyd and Noah Doss did participate to some extent in the picketing,
and furthermore it is admitted that they supervised the picketing to insure its
compliance with the State court orders. In these circumstances it is obvious that
District 19 engaged in the picketing and also bears responsibility for it, United
Mine Workers of America, 145 NLRB 247, 253.
Respondents' reliance on the State court orders to protect their picketing is also
misplaced. As has been pointed out in former cases, the Supreme Court has
repeatedly held that the Board has exclusive jurisdiction of labor disputes insofar
as they are subject to Section 7 or 8 of the Act. Thus, in San Diego Building
Trades Council v. Garman, 359 U.S. 236, 245, the Court stated "when an activity
is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts
must defer to the exclusive competence of the National Labor Relations Board if
the danger of state interference with national Policy is to be averted . . . . If the
LOCAL NO. 7463, UNITED MINE WORKERS 1593
Board decides , subject to appropriate federal judicial review, that conduct is pro-
tected by § 7, or prohibited by § 8, then the matter is at an end, and the states are
ousted out of all jurisdiction ." I accordingly conclude that the State court orders
are not binding on the Board , and afford no protection to Respondents ' picketing
insofar as the Board is concerned.
The Respondents also argue that there appeared to be little opposition by Harlan
to the successful efforts of the Charging Union, and that there were very few
"adversary features" in the recognition and negotiation between these parties. The
evidence in this record, however, shows that Harlan recognized the Charging Union
upon the basis of union authorization cards signed by a majority of the employees
in an appropriate unit , and thereafter entered into a collective -bargaining agree-
ment with it. No substantial evidence was presented to refute its valid majority
status at the time it was recognized or thereafter . Furthermore , no persuasive evi-
dence was introduced establish conclusion in its execution. Therefore, I can find
no substance in Respondents' contention that Harlan could not or cannot lawfully
recognize the Charging Union . Moreover , in view of the Board 's decisions it would
also appear that the majority status of the Charging Union could not be placed
in issue or litigated in this proceeding. Shamrock Dairy, Inc., 119 NLRB 998,
1001 . Also in view of the fact that the representation petitions filed and dismissed
by the Board for inappropriateness of the unit , or aforestated , is an additional
reason why no question concerning representation can be raised.
Respondents ' picketing in violative of the Act if it can be established that an
object thereof was proscribed by Section 8(b)(7)(A) of the Act. From the wording
of the picket sign, "Local 7463 on strike against Yancey," and with the filing of the
petitions-it is clear that the object of the picketing is for recognition . Moreover,
there is specific and direct testimony and admissions from Branson , as previously
detailed herein , that the Respondents were picketing Harlan for a contract. Nor is
it material that the picketing began prior to the recognition of the Charging
Union , and may at that time have been lawful . Further , even assuming that the
picketing at Harlan was also for information purposes-such may not be raised as
a defense to a Section 8(b) (7) (A) violation . It has been well settled by the Board
that such picketing would be permissible only where the provisions of Section
8(b)(7)(C) were applicable. The Act does not require that the sole object of the
picketing be recognitional, but only that an object be such.
In accordance with my findings herein Respondents' reliance and its contentions
as to Scott also becomes untenable. This record clearly shows that at the end of
1964-the coal mining operation of this employer ceased , and thereafter there
were no employees of Scott to be picketed as this former employer no longer had
any employees. Since the picketing of Scott and Harlan had gone on at the same
common location and both properties being almost adjunct to the other-with only
one highway leading into the area-it becomes obvious that the alleged picketing
of Scott , at all times subsequent to 1964 , could have only been directed to the
employees of Harlan , and these factors were all prevailing subsequent to the rec-
ognition of the Charging Union by Harlan in July 1965. Whether or not the
Respondents had actual knowledge as to the liquidation of Scott and their former
employees does not in any way materially effect the conclusions herein-as, in the
final analysis, the Respondents were admittedly picketing both Scott and Harlan
for a contract-and regardless of their legal or illegal actions against Scott, know-
ingly or unknowingly, they cannot vindicate, under these factual circumstances,
their otherwise violative conduct against Harlan.
In summation, the record establishes that the Respondents picketed Harlan with
an object to force or require Harlan to recognize or bargain with Respondents,
or to force or require Harlan employees to accept Respondents as their collective-
bargaining representative when Harlan has lawfully recognized the Charging Union.
For all the reasons stated above, I find that Respondents picketed Harlan for
recognition and a collective-bargaining contract in violation of Section 8(b) (7) (A)
of the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following conclusions of law:
1. Harlan is engaged in commerce and in an industry affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Southern Labor Union Local 206; District 19, United Mine Workers of Amer-
ica; and Local 7463, United Mine Workers of America, are labor organizations
within the meaning of Sections 2(5) and 8 (b) (7) (A) of the Act.
3. By picketing Harlan Fuel Company with an object of forcing or requiring
Harlan to recoginze and bargain with them as the collective-bargaining representa-
tive of its employees, and with a further object of forcing or requiring Harlan's
employees to accept or select Respondents as their collective-bargaining representa-
tive, at a time when Respondents were not certified as such representatives and'
Harlan had lawfully recognized Southern Labor Union Local 206 as the collective-
bargaining representative of its employees, and a question concerning representa-
tion could not be raised under Section 9(c) of the Act, Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section
8(b)(7)(A) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain unfair labor , practices,
it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies 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, it is recommended that Respondents District 19, United
Mine Workers of America, and Local 7463, United Mine Workers of America,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from picketing or causing to be picketed or threatening to
picket Harlan Fuel Company under conditions prohibited by Section 8(b)(7) of
the Act, where an object thereof is forcing or requiring such employer to recognize
or bargain with them as the collective-bargaining representatives of its employees,
or forcing or requiring said employees to select or accept Respondents as their
collective-bargaining representatives.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post in conspicuous places at their business offices, meeting halls and all
places where notices to their members are customarily posted, copies of the attached
notice marked "Appendix." 3 Copies of the said notice, to be furnished by the
Regional Director for Region 9, after being signed by duly authorized representa-
tives of the Respondents, shall be posted by Respondents immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in such con-
spicuous places. Reasonable steps shall be taken by Respondents to insure that
the said notices are not altered, defaced, or covered by any other material.
(b) Forthwith mail to the aforesaid Regional Director for Region 9, signed'
copies of said notices for posting by Harlan Fuel Company, if it so chooses, in
places where notices to its employees are customarily posted.
(c) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondents have taken to comply
herewith?
3In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order is enforced by a
degree 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"
In the event this Recommended Order is adopted by the Board, this provision shall'
be modified to read : "Notify said Regional Director, in writing, within 10 days from the-
date of this Order, what steps Respondents have taken to onmply herewith."
R. B. BUTLER, INC. 1595
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT 19, UNITED MINE WORKERS OF AMERICA
AND LOCAL 7463, UNITED MINE WORKERS OF AMERICA, AND TO ALL EMPLOYEES
OF HARLAN FUEL COMPANY, INC.
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 Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT under conditions prohibited by Section 8(b)(7) of the Act,
picket, or cause to be picketed , or threaten to picket , Harlan Fuel Company,
where an object thereof is to force or require Harlan Fuel Company, to rec-
ognize or bargain with us as the representatives of its employees , or to force
or require the employees of Harlan Fuel Company, to accept or select us as
their collective -bargaining representative.
DISTRICT 19, UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
LOCAL No. 7463, 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 pro-
visions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building , 550 Main Street , Cincinnati , Ohio 45202, Telephone
684-3627.
R. B. Butler, Inc. and Laborers International Union of North
America, Local Union No. 18 , AFL-CIO, Petitioner . Case 23-
RC-2647. October 4, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, hearings were held before Hearing Offi-
cers John W. Bowlin and Clayton Corley. The Hearing Officers' rul-
ings made at the hearings are free from prejudicial error and are
hereby affirmed. The Employer and Texas Highway-Heavy Branch
of the Associated General Contractors filed briefs in support of the
Employer's position. The Petitioner and Building and Construction
Trades Department, AFL-CIO, filed briefs in support of the Peti-
tioner's position.
Upon the entire record in this case, the National Labor Relations
Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act, and it will effectuate the purposes of the Act to assert juris-
diction herein.
160 NLRB No. 131.