Local No. 8280, UMW

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 271 (N.L.R.B. 1967)

LOCAL NO. 8280, UMW 271
Local No. 8280, United Mine Workers of America
(Leatherwood No. 1 Mine of Blue Diamond Coal
Company) and Southern Labor Union Local No.
188
District 30, United Mine Workers of America
(Leatherwood No. 1 Mine of Blue Diamond Coal
Company) and Southern Labor Union Local No.
188. Cases 9-CP-46-1 and 46-2
June 29, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On November 29, 1966, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in certain unfair labor practices within the
meaning of Section 8(b)(7)(A) of the National
Labor Relations Act, as amended, and recommend-
ing that the consolidated complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, the Charging Party
(SLU) filed a brief in support of the General Coun-
sel's exceptions, and the Respondents filed a brief
in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 and the entire record in
the case, including the exceptions and briefs, and
finds merit in the exceptions of the General Coun-
sel. The relevant findings of fact made by the Trial
Examiner, but not his conclusions or recommenda-
tions, are, as indicated below, hereby adopted.
The basic facts are not in dispute. Briefly, the
Respondent Unions are a local and a district or-
ganization of the United Mine Workers of America.
The UMW had been the recognized representative
of the Employer's employees since about 1945 and
was certified January 17, 1964. On February 24,
1964, the Employer served a 60-day notice of ter-
mination of the existing contract. Negotiations for
a new contract were initiated by an Employer letter
of March 16, 1964. The parties quickly reached an
impasse on economic issues. When the contract ex-
pired on April 27, 1964, the 180 employees then on
the payroll ceased work, but apparently no picket-
ing ensued. Bargaining continued until June 25,
1964. Neither party requested a meeting after that
date.
On August 11, 1964, the Employer informed the
employees by letter that it intended to reopen the
mine and that employees who had not returned to
work by August 24 would be permanently replaced.
Except for a reference to "the same production
schedule" that obtained on April 27, the letter did
not set forth the terms or conditions of employment.
Shortly after receipt of the letter, the nonworking
employees decided "for the local officers to go in
and talk to Mr. Earl Forrest (mine superintendent)
on the conditions of the letter he'd sent and to come
back to work." About 200 employees appeared at
the company premises shortly after receipt of the
letter, and the Local's president and three commit-
teemen left the group and told the mine superin-
tendent they wished to talk about their jobs and the
possibility of returning to work. The superintendent
replied that he would "talk to them as individuals
but not as a group." After reporting to the group,
the union representatives returned, advised the su-
perintendent they could talk with him only as a
group, and were informed that in that case he would
not talk with them. The group then broke up.
Mining operations were resumed on about
November 1, 1964. At a meeting of the Respondent
Local shortly after January 19, 1965, and after it
was learned that the mine was in operation, it was
decided that a picket line should be instituted.
Picketing commenced on January 19 and con-
tinued, with one interruption, until it was enjoined
in a 10(1) proceeding on July 13, 1965. The picket
signs stated, inter alia, that UMWA and Local 8280
had no contract. Meanwhile, on April 30, 1965,
representatives of Southern Labor Union, the
Charging Party, herein called SLU, demanded
recognition and bargaining on the basis of 120
authorization cards from the unit employees, which
then numbered about 120, of whom 28 had been
employed previous to November 1, 1964. The Em-
ployer's office manager testified that he compared
the signatures on the cards with those in the person-
nel files and, after rejecting about 5 as possibly not
authentic, reported to the Employer that the SLU
had presented 115 valid cards. The mine superin-
tendent thereupon advised the SLU that it was
recognized as collective-bargaining agent and
proposed a May 5 meeting to negotiate a contract.
On the same day the Employer notified the Respon-
dent District that it was convinced UMW no longer
represented the employees. The Employer and
SLU representatives met as scheduled on May 4
and, after 14 to 16 hours of negotiations, reached
agreement on a contract, which was signed on May
5.
The complaint is limited to picketing which took
place after the Employer recognized SLU as bar-
gaining representative of the employees at the Em-
ployer's Leatherwood No. 1 mine on April 30,
166 NLRB No. 8
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1965. The Trial Examiner found, inter alia, that the
Employer engaged in an unfair labor practice when
its mine superintendent refused to meet and deal
with the local union committee shortly after August
11, 1964, and, instead, insisted upon individual
bargaining with the striking employees.I He then
reasoned that upon the commission of this unfair
labor practice, the economic strikers in Respondent
District's bargaining unit became unfair labor prac-
tice strikers and were thus entitled to reinstatement
and to inclusion in the bargaining unit for the pur-
pose of ascertaining whether any union represented
a majority therein. Since he found that Respondent
District had a presumptive majority in such unit on
the basis of the Board's certification of the District
in January 1964, and that such presumption was not
rebutted, the Trial Examiner concluded that on
April 30 SLU was a minority union which was not
validly recognized.2 Accordingly, the Trial Ex-
aminer held that although recognition and bargain-
ing may have been one object of the picketing,3 the
Respondent District was a currently certified union
whose picketing was in part to protest against unfair
labor practices, and hence the picketing did not vio-
late Section 8(b)(7)(A) of the Act. We cannot agree
with the Trial Examiner's view of the case.
Contrary to the Trial Examiner, we deem it un-
necessary and improper to pass upon the Em-
ployer's conduct which occurred more than 6
months prior to the filing of the charges herein, and
we do not adopt the Trial Examiner's statement of
the applicable statutory and decisional law. Rather,
we view this case as controlled by our decision in
Roman Stone ,4 in which we held that the term
"lawfully recognized" in Section 8(b)(7)(A) "was
meant to include all bargaining relationships im-
mune from attack under Sections 8 and 9 of the
Act."
Here, as in Roman Stone, the legality of the Em-
ployer's recognition of the incumbent union cannot
be challenged in an 8(b)(7)(A) proceeding because
no timely charge was filed thereon, and because the
contract, being valid on its face and of reasonable
i The strike began on April 27, 1964, but there was no picketing until
January 19, 1965.
2 The Trial Examiner noted, incidentally, in his In. 25, that because
SLU was a minority union , its contract would not bar a petition for an
election.
3 The Trial Examiner did not specifically find that an object of the
picketing was to secure recognition and bargaining, but in his view
of the case this object could be lawfully pursued by picketing. How-
ever, since the Respondents argue, and the Trial Examiner found,
that the Respondents were presumed to be the majority representative
and entitled to recognition , and since Respondents contend that this was
not a proscribed objective because they were not seeking "initial recog-
nition." such object is implicitly conceded as one aim of the picketing
in any event, we have held that a statement on a picket sign that an
employer does not have a contract with a labor organization clearly
implies a recognitional and bargaining objective Local Joint Executive
Board of Hotel and Restaurant Employees and Bartenders, etc (Leonard
Smitley, et al., d/b/a Crown Cafeteria), 135 N LRB 1183. Here, the strike
in its origin was over the failure of the Employer to sign a contract and
the picket signs protested the lack of a contract We find, accordingly,
duration, would be a bar to a representation peti-
tion? Accordingly, in the absence of a timely and
meritorious charge, the Respondents are not enti-
tled to assert any alleged invalidity in the Em-
ployer's recognition of SLU as a defense herein.
Therefore, as we have found that the Respondents6
picketed the Employer after April 30, 1965, at least
partially for the purpose of securing recognition and
bargaining, we conclude that they thereby violated
Section 8(b)(7)(A) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth above,
occurring in connection with the operations of
Leatherwood No. 1 Mine of Blue Diamond Coal
Company set forth in the attached Trial Examiner's
Decision, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, we shall order that
they cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies
of the Act.
CONCLUSIONS OF LAW
1. Blue Diamond Coal Company is engaged in
commerce and in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Southern Labor Union Local No. 188; Dis-
trict 30, United Mine Workers of America; and
Local 8280, United Mine Workers of America, are
labor organizations within the meaning of Sections
2(5) and 8(b)(7)(A) of the Act.
that one object of the picketing of Leather-wood No. 1 Mine was for
recognition and a collective-bargaining contract
' International Hod Carriers', et al. (Roman Stone Construction Com-
pany), 153 NLRB 659.
5 See District 19, United Mine Workers of America (Seagraves Coal
Company), 160 NLRB 1582, and Local No 7463, United Mine Workers
ofAmerica (Harlan Fuel Company), 160 NLRB 1589.
' The Trial Examiner's approach to this case did not require that he
consider Respondent District's denial of responsibility for the conduct of
the Respondent Local in picketing the premises of the Employer. It ap-
pears from the record, however, that payment received by the pickets
from the District was disbursed on the picket line by a field representative
of the District. Both the president of the Local and the president of the
District testified that the latter attended meetings of the Local at which he
discussed the conduct of the picketing. The president of the District also
testified that Local's officers visited the District's offices on more than
one occasion to discuss the conduct of the picketing. It is thus established
on the record that the picketing was a joint venture of the Respondent
District and Respondent Local. Accordingly, we shall direct our Order
herein to both Respondents.
LOCAL NO. 8280 , UMW 273
3. By picketing Leatherwood No. 1 Mine of
Blue Diamond Coal Company at Harlan, Ken-
tucky, with an object of forcing or requiring Blue
Diamond to recognize and bargain with them as the
collective-bargaining representative of its em-
ployees, and with a further object of forcing or
requiring Blue Diamond's employees to accept or
select Respondents as their collective-bargaining
representative, at a time when Blue Diamond had
lawfully recognized Southern Labor Union Local
No. 188 as the collective-bargaining representative
of its employees, and a question concerning
representation 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 commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondents, Dis-
trict 30, United Mine Workers of America, and
Local 8280, United Mine Workers of America,
their officers, agents, and representatives, shall:
1. Cease and desist from picketing or causing to
be picketed or threatening to picket Leatherwood
No. 1 Mine of Blue Diamond Coal Company under
conditions prohibited by Section 8(b)(7)(A) of the
Act, where an object thereof is forcing or requiring
such employer to recognize or bargain with them as
the collective-bargaining representative of its em-
ployees, or forcing or requiring said employees to
select or accept Respondents as their
collective-bargaining representative.
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."7 Copies
of said notice, on forms provided by the Regional
Director for Region 9, after being signed by an
authorized representative of each Respondent, shall
be posted by 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 are
customarily posted. Reasonable steps shall be taken
by the Respondents to insure that 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 Blue Diamond Coal Company, if it
be willing, in places where notices to its employees
are customarily posted.
(c) Notify the Regional Director for Region 9,
in writing, within 10 days from the date of this Deci-
sion, what steps have been taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT 30,
UNITED MINE WORKERS OF AMERICA, AND
LOCAL No. 8280, UNITED MINE WORKERS OF
AMERICA, AND TO ALL EMPLOYEES OF
LEATHERWOOD No. I MINE OF BLUE DIAMOND
COAL COMPANY
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations 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, Leather-
wood No. 1 Mine of Blue Diamond Coal Com-
pany, where an object thereof is to force or
require Leatherwood No. I Mine of Blue
Diamond Coal Company, to recognize or bar-
gain with us as the representative of its em-
ployees, or to force or require the employees
of Leatherwood No. 1 Mine of Blue Diamond
Coal Company to accept or select us as their
collective-bargaining representative.
DISTRICT 30, UNITED
MINE WORKERS OF
AMERICA
(Labor Organization)
Dated By
(Representative)
(Title)
Dated By
LOCAL 8280 , UNITED
MINE WORKERS OF
AMERICA
(Labor Organization)
(Representative)
(Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If you have any question concerning this notice
or compliance with its provisions, you may commu-
nicate directly with the Board's Regional Office,
Room 2023, Federal Office Building, 550 Main
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Street, Cincinnati, Ohio 45202, Telephone
684-3627.
TRIAL EXAMINER'S DECISION
LOWELL GOERLICH, Trial Examiner: Upon charges
filed by Southern Labor Union Local No. 188, herein
referred to as the Charging Party, the General Counsel of
the National Labor Relations Board, herein called the
Board, on behalf of the Board by the Regional Director
for Region 9 on June 7, 1966, issued an order consolidat-
ing cases, consolidated complaint and notice of hearing.
Local No. 8280, United Mine Workers of America,
herein referred to as Respondent Local No. 8280, and
District 30, United' Mine Workers of America, herein
referred to as Respondent District 30, were named
Respondents. The consolidated complaint alleged that
the Respondents had committed unfair labor practices
within the meaning of Section 8(b)(7)(A) of the National
Labor Relations Act, as amended, herein referred to as
the Act. Respondents filed a timely joint answer to the
consolidated complaint, denying that they had engaged or
were engaging in the unfair labor practices alleged.
The case came on for hearing before me in Harlan,
Kentucky, on August 16. 17, and 18, 1966. At the close
of the General Counsel's evidence, the Respondents
moved to dismiss the consolidated complaint as against
the Respondents and each of them in that the General
Counsel had failed to establish proof to sustain the
charges against the Respondents. The Trial Examiner ex-
pressed "serious doubt as to whether or not a prima facie
case [had] been established"; however, Respondents'
motion was overruled subject to renewal. At the close of
all the evidence, the Respondents renewed their motion
to dismiss.' The Trial Examiner reserved ruling upon
such motion in order to enable the General Counsel to
submit a brief.
The General Counsel, the Charging Party, and the
Respondents have submitted briefs supporting their
respective positions. The briefs have been carefully con-
sidered by the Trial Examiner.
The issue before the Trial Examiner on the Respond-
ents' motion to dismiss is whether the evidence adduced
by the General Counsel supports a finding that the picket-
ing which continued at the premises of the Blue Diamond
I In stating Respondents ' grounds for their motion Respondents' coun-
sel said among other things'
... The evidence shows that at the time when United Mine Workers
of America was a lawfully chosen bargaining agent of the employees
of Blue Diamond Coal Company immediately after August 11, 1964,
the Blue Diamond Coal Company refused , and this appears as a
matter of law , to talk with the employees who had chosen the United
Mine Workers of America as their bargaining agent, and was mein-
bets of Respondent's Local 8280, refused to talk with them as a group
and was told by an official of the Blue Diamond Coal Company that
said Company would converse and talk with them individually. It
therefore is contended that this action , that is undenied in this record,
constitutes an unfair labor practice upon the part of Blue Diamond
Coal Company and that the Blue Diamond Coal Company having
committed same cannot now come here before this Board.. without
this unfair labor practice being considered as a defense to the charger
[sic] and against the Respondents.
s Section 8(b)(7)(A) provides-
It shall be an unfair labor practice for a labor organization or its
agents-
Coal Company's Leatherwood No. I Mine after the Blue
Diamond Coal Company's recognition of the Southern
Labor Union on April 30, 1965, without an election, and
while the United Mine Workers remained the ostensible
collective-bargaining agent, was in violation of Section
8(b)(7)(A) of the Act.2
The essential facts which are not in dispute are as fol-
lows:
Blue Diamond Coal Company (sometimes referred to
herein as the Employer or Blue Diamond) is a Delaware
corporation engaged in the mining , processing and sale of
coal at its Leatherwood No. I Mine located near Leather-
wood, Kentucky. It also operated the Blair Fork Mine
and the Scotia Mine.3 The Southern Labor Union during
the period covered by this Decision maintained labor
contracts with the Blue Diamond Coal Company at such
establishments. It is admitted that the Blue Diamond
Coal Company is engaged in commerce as defined in Sec-
tion 2(6) and (7) of the Act, and Trial Examiner so finds.
On January 17, 1964,' the Regional Director for
Region 9 certified the United Mine Workers of
America as the collective-bargaining agent for a unit of
"all production and maintenance employees employed at
the employer's Leatherwood, Kentucky mine, excluding
all office clerical employees, professional employees,
guards, foremen and supervisors as defined in the Act."
The certification resulted from an election in which 338
ballots were cast for the United Mine Workers of Amer-
ica and none against it. There were 367 eligible voters; 11
ballots were challenged. Thereafter on February 24,
1964, Blue Diamond served on the Respondents a 60-
day notice to terminate the contracts which covered the
Leatherwood No. 1 Mine. Bargaining for a new contract
commenced on March 16, 1964. On April 27, 1964, the
contract expired and work ceased at the mine. "[A]bout
180" employees were on the payroll in the contract unit
on April 27, 1964. None continued working.
On May 25, 1964, Blue Diamond Coal Company's
vice president, V.D. Toler, wrote C.E. Beane, president
of District 30, a letter summarizing the results of the bar-
gaining sessions to date. Attached to the letter was a
"proposition" offered by the Company on May 15, 1964.
The letter ended with the paragraph:
On May 21, 1964, I telephoned you for the purpose
of ascertaining your reaction to the last proposal. You
informed me that you would be unable to accept our
(7) to picket or cause to be picketed, or threaten 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 organiza-
tion 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 or-
ganization is currently certified as the representative of such em-
ployees-
(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, .. .
The alleged unlawful picketing occurred only at the Leatherwood No
I Mine.
4 The petition for an election had been filed on November 20, 1962, and
an election was conducted on September 26, 1963.
5 According to counsel for the General Counsel prior to November
1962, "United Mine Workers of America ... the parent organization of
both the district and the local, was for more than 10 years recognized as
collective bargaining representative of Blue Diamond Mine employees in-
volved herein."
LOCAL NO. 8280, UMW 275
proposal and you again suggested that we execute
the new United Mine Workers of America's contract
that was effective April 2, 1964, which for economic
reasons was not acceptable to us. During this con-
versation, I believe it was mutually understood that
further meetings would be fruitless in view of
economic conditions at the Leatherwood Mine and
the national policy of the United Mine Workers of
America. If I am in error about this understanding,
please advise.
President Beane without contradiction testified that he
answered Toler's letter and advised Toler that he did not
intend to leave the impression that negotiations had been
broken off but that he was "ready to meet again at any
time that could mutually be arranged." The final meeting
between the parties took place on June 25, 1964; since
that date the employer has not engaged in collective bar-
gaining with any of the representatives of the United
Mine Workers Union.
On August 11, 1964, Earl Forrest, superintendent of
Leatherwood No. I Mine, directed the following letter to
each employee who had ceased work on April 27, 1964:
This is to give you formal notice that work is availa-
ble for you at the Leatherwood Mine if you wish to
return to work. It is planned to re-open the mine
upon the same production schedule, two shifts, as
was being pursued on April 27, 1964. Jobs will be
given to those first returning to work, regardless of
whether laid off or working just prior to that date.
We hope that you will return to work, but if you have
not done so by August 24, 1964, we shall assume
that you do not intend to return, and after that date
we will employ permanent replacements for such of
our employees, as continue to refuse this offered em-
ployment.
We want to assure you that there will be no dis-
crimination against you, and even if you remain on
strike after August 24, we will be glad to give you
employment unless your job has been filled by a
replacement. However, it is only fair to advise you
that in the event your job is filled by a replacement
before you offer to return to work, that replacement
will not be discharged in order to make place for you.
We would much prefer that you return to work,
rather than be forced to replace you with someone
else for we would rather have our present employees
on the job.
Shortly after the letter was received, the nonworking
employees of the Company (no employees in the certified
unit were working at the time) decided "for the local of-
ficers to go in and talk to Mr. Earl Forrest on the condi-
tions of the letter he'd sent and to come back to work."
[Emphasis,. supplied. ]6 About 200 employees appeared
at the Company's premises. Local Union President Willie
Couch, with whom Forrest had dealt on employee
grievances and other collective-bargaining matters, and
Committeemen John Blair, Raymond Tiptons, and Rus-
sel Schrader left the group to talk to Forrest. According
to Forrest, "they told [him] they wanted to talk to [him]
concerning their job or going back to work or something
along that line." Forrest responded that he "would talk to
them as individuals, but not as a group." Reference was
made to Forrest's letter Qf August 11, 1964.
After Forrest's communication the committee rejoined
the group observing to Forrest before they left that
"they'd find out about it." They returned within 10
minutes and "told [Forrest] they'd talk to [him] as a
group, but they couldn't talk to him as individuals." For-
rest testified, "I told them we couldn't talk then. So they
must have told the men. They broke up pretty soon and
got to leaving."7 According to Forrest, he was following
Vice President Toler's instructions.
Toler testified that he knew about the incident and was
aware that Forrest had informed the union committee
that "he would not talk to them as a group, but as in-
dividuals." Toler said that it was upon his instructions
that Forrest refused to discuss "reemployment of these
former employees with a collective group or committee."
Toler had instructed Forrest to meet only with the em-
ployees "individually" and not to bargain with them as a
"committee collectively." Such instructions were pur-
suant to the Company's policy which Toler described,
"Well, the policy I tried to establish, which was my inten-
tion of establishing, was that we thought there would be
some employees return to work, and that whenever they
did come to work they would have to be talked to indi-
vidually . . . . About the conditions of employment .. .
wages, hours of work, general conditions of employ-
ment." The policy" remained in effect on April 30, 1965.
The record discloses that the policy was applied to em-
ployees who returned to work.
Following August 11, Blue Diamond commenced
operations. Shortly prior to January 19, 1965, the Local
Union met and, according to President Couch whose
testimony is credited, decided to "put a picket line up and
see if they'd recognize the picket line." Couch testified,
"Well, they started back to work up there, the company
did. We found out they had a stock pile of coal that we
had, that we had loaded and they dumped it up there, that
they hadn't paid any royality on at that time. And they
started loading the stockpile of coal up and they were hir-
ing outside men to come in there to do this job and taking
our jobs that we were on. We had a meeting, the men did
of Local 8280 and we decided that we had jobs. That we
was the bargaining agent up there. We had an election and
we had chosen the United Mine Workers to bargain for
us. And then them was our jobs up there when the con-
tract expired and if anybody worked up there we wanted
our job. And the Company refused to talk to us on the
letter. We went back to talk to them. We had a meeting
and we decided that's the only choice we had to hold up
e Other than reference to the "same production schedule" the letter did as he was pulling the door together he said that I will not see you, the men
not mention the terms or conditions of employment offered . as a committee , but I will see each individual , if they want to talk to me
' John Blair testified, "... Earl Forrest come down and opened the that way."
door and he asked Willie what he was wanting Willie told him that the 8 The policy was applicable to employees who had ceased work on
men had sent us up there as a committee to talk to him to see what he had April 27, 1964.
to offer in this letter. And Earl Forrest pulled the door back together and
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for our rights was to put a picket line up and to see if they
recognized a picket line."9 [Emphasis supplied.]
Peaceful picketing10 commenced at Blue Diamond's
premises on January 19, 1965. The picketing was con-
ducted by employees who "stood around or sat in cars."
Picket signs were set beside the road which noted among
other things that Local 8280 was on strike.
In the latter part of January or early February 1965, the
Southern Labor Union demanded recognition for em-
ployees at the Leatherwood No. 1 Mine. The Employer
denied the request on the ground that the Southern Labor
Union" at the time did not represent a majority of its em-
ployees.
On March 4, 1965, the Perry County Circuit Court of
the State of Tennessee granted a temporary restraining
order which could be interpreted as prohibiting all
pickets. Picketing ceased thereafter until March 31,
1965, at which time the temporary restraining order was
modified permitting four pickets to appear at each en-
trance of the plant making eight pickets in all. The picket-
ing continued until July 13, 1966, at which time a 10(1) in-
junction was granted by the District Court for Eastern
District of Kentucky, which is still in force. During the
entire period of picketing, the picketing was conducted in
the same manner and picket signs were carried which
noted among other things that Local 8280 was on strike.
On April 30, 1965, representatives of the Southern
Labor Union appeared at the offices of Blue Diamond
and made a demand on Vice President and General
Manager Toler and Superintendent Earl Forrest for bar-
gaining. Representatives of the Southern Labor Union
presented approximately 120 authorizations. At the time
there were 119 employees in the unit, 28 of whom had
been employees who had worked for the Company prior
to November 1, 1964. The authorization cards were
turned over to Fred Keen, the Employer's office
manager, for the purpose of authenticating the signatures
of the employees appearing on the authorization cards.
Keen checked the signature on each card with the signa-
ture of the employee appearing in the Employer's person-
nel file. After checking all the cards Keen reported to
Forrest that there were about 115 valid cards. Dates on
the cards were not checked. Forrest immediately con-
tacted the Southern Labor Union representatives and ad-
vised them that Blue Diamond was recognizing the
Southern Labor Union as its employees' collective-bar-
gaining agent and would meet with it for the purpose of
negotiating a collective-bargaining agreement on May 4,
1965.
On the same date, April 30, 1965, Toler directed a
letter to C. E. Beane, president of District 30, as follows:
You are hereby notified that Blue Diamond Coal
Co. is convinced that United Mine Workers of
America no longer represents a majority of our em-
ployees at our Leatherwood Mine, Leatherwood,
Perry Co., Ky.
Negotiations were commenced between Blue Diamond
and the Southern Labor Union at the Union's office in
Cumberland, Kentucky. A contract was signed on May
5. In all the parties negotiated between 14 and 18 hours.
The contract contained the same hours, the same vaca-
9 According to C. E. Beane, president of District 30, the Local Union's
officers reported to him that "they had not picketed until the Company
reopened the mine and started luring men and that since the Company had
refused to meet with them down there, and were hiring men, they were up
there to see if they could protect their jobs and asked the men not to go on
tions, the same welfare fund, and the same wages as that
which had been negotiated and executed at the Em-
ployer's Blair Fork Mine between the same parties.
Toler testified that during the period of the strike the
Respondent did not disqualify any of the employees by
reason of any strike violence which they may have com-
mitted during the strike.
Conclusions
The General Counsel contends that the above
described picketing which continued on and after the Em-
ployer's recognition of Southern Labor Union Local No.
188 on April 30, 1965, constituted an unfair labor prac-
tice within the meaning of Section 8(b)(7)(A) of the Act.
Section 8(b)(7)(A) provides:
It shall be an unfair labor practice for a labor or-
ganization or its agents -
(7) to picket or cause to be picketed, or threaten
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 or-
ganization as the representative of his employees, or
forcing or requiring the employees of an employer to
accept or select such labor organization as their col-
lective bargaining representative, unless such labor
organization is currently certified as the representa-
tive of such employees:
(A) where the employer has lawfully recognized
in accordance with this Act any other labor organiza-
tion and a question concerning representation may
not appropriately be raised under section 9(c) of this
Act. . . . [Emphasis supplied.]
The General Counsel does not contend that the picket-
ing described above prior to the Employer's recognition
of the Southern Labor Union on April 30, 1965, was in
violation of Section 8(b)(7)(A) but asserts that thereafter
the picketing was converted into unlawful picketing in
violation of Section 8(b)(7)(A) of the Act by the Em-
ployer's recognition of the Southern Labor Union and its
contemporaneous withdrawal of recognition from the
Respondents. According to the General Counsel the
picketing which continued without substantial change
after the Employer's recognition of the Southern Labor
Union was "clearly for the purpose of regaining recogni-
tion for the District and/or the International." Thus,
reasons the General Counsel, the picketing continued as
unprotected concerted activity and the sanctions of Sec-
tion 8(b)(7)(A) became applicable.
First: In International Hod Carriers Building, etc. (C.
A. Blinne Construction Co.), 135 NLRB 1153, 1156, the
Board said in reference to Section 8(b)(7) of the Act:
The section as a whole, as is apparent from its
opening phrases, prescribes limitations only on
picketing for an object of "recognition" or "bargain-
ing" (both of which terms will hereinafter be sub-
sumed under the single term "recognition") or for an
the jobs there that belonged to them."
10 When President Beane attended the Local's meeting he "told them if
they continued to picket to do it peacefully .. .
11 Local 188 is an affiliate of the Southern Labor Union It was char-
tered May 5, 1965.
LOCAL NO. 8280, UMW 277
object of organization. Picketing for other objects is
not proscribed by this section. Moreover, not all
picketing for recognition or organization is
proscribed. A "currently certified" union may picket
for recognition or organization of employees for
whom it is certified. And even a union which is not
certified is barred from recognition or organization
picketing only in three general areas. The first area,
defined in subparagraph (A) of Section 8(b)(7), re-
lates to situations where another union has been law-
fully recognized and a question concerning represen-
tation cannot appropriately be raised...."
[Emphasis supplied.]
The Board further opined at 1159:
However, at the risk of laboring the obvious, it is im-
portant to note that structurally, as well as grammati-
cally, subparagraphs (A), (B), and (C) are subor-
dinate to and controlled by the opening phrases of
Section 8(b)(7). In other words, the thrust of all the
Section 8(b)(7) provisions is only upon picketing for
an object of recognition or organization, and not
upon picketing for other objects. [Emphasis sup-
plied.]
In National Packing Company, Inc., 158 NLRB 1680,
1685, the Board reaffirmed its position taken in the
Blinne case , supra, the Board said:
Section 8(b)(7) is concerned specifically with
limitations on the right to picket. We are convinced,
however, that the right to picket and the right to
strike in the instant case are inextricably part of the
same conduct. Therefore, as the Supreme Court
stated in Curtis Bros., supra [362 U.S. 274], an
order "against peaceful picketing would obviously
`impede' the right to strike," and can be sustained
only if "specifically provided for" in the Act. With
regard to the types of picketing that were "specifi-
cally provided for," we stated in the Blinne case [135
NLRB 1153] that Section 8(b)(7) "as a whole, as is
apparent from its opening phrases, prescribes limita-
tions only on picketing for an object of `recognition'
or `bargaining' ... or for an object of organization.
Picketing for other objects is not proscribed by this
section." [Emphasis supplied.]
The Board held that, in that the strike was to protest
the employer's "broken promises," the picketing was not
for the purpose of obtaining recognition or bargaining;
hence the employees did not picket for an object violative
of Section 8(b)(7) of the Act. In reaching this conclusion
the Board said, "We have held that Section 8(b)(7)(B)
does not preclude picketing to protest an employer's un-
fair labor practice." The Board pointed out that one of the
elements to be proved in order to establish a Section
8(b)(7) violation is that "the object of the picketing is to
force the Respondent `to recognize or bargain with a
labor organization."' Thus the "object of the picketing"
becomes pertinent in this proceeding for, if the "object of
the picketing" was other than one proscribed by Section
8(b)(7)(A) of the Act, the picketing was lawful.
The Respondents maintain that such "picketing ...
was engaged in, not with the intent of violating the Act,
but in protest to the violation of the Act by the Blue
Diamond Coal Company...."
It is clear that an object of the picketing was to protest
the Employer's insistence upon individual bargaining
with the employees who had ceased to work. The policy
which was announced and followed during the certifica-
tion year interfered with, restrained and coerced em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act and the Employer thereby violated Sec-
tion 8(a)(1) of the Act.12 Such are the teachings of the
Supreme Court in Medo Photo Supply Corporation v.
N.L.R.B., 321 U.S. 678, 684. The Supreme Court said:
That it is a violation of the essential principle of
collective bargaining and an infringement of the Act
for the employer to disregard the bargaining
representative by negotiating with individual em-
ployees, whether a majority or a miniority, with
respect to wages, hours and working conditions was
recognized by this Court in J. I. Case Co. v.
N.L.R.B., 321 U.S. 332 .... The statute guarantees
to all employees the right to bargain collectively
through their chosen representatives. Bargaining car-
ried on by the employer directly with the employees,
whether a minority or majority, who have not
revoked their designation of a bargaining agent,
would be subversive of the mode of collective bar-
gaining which the statute has ordained, as the Board,
the expert body in this field, has found. Such conduct
is therefore an interference with the rights guaran-
teedby §7 and a vir^tion of §8(1) of the Act.
It follows, therefore, since an object of the picketing
was in protest of the Employer's unfair labor practices,
the picketing for such object was not proscribed by Sec-
tion 8(b)(7)(A). However, the General Counsel, relying
on the Blinne case, supra, but without reference to any
specific language therein, argues that the Trial Examiner
may not consider the unfair character of the picketing
because a "meritorious charge alleging same" has not
been filed.
Unfair labor practice strikers "do not lose their status
and are entitled to reinstatement with backpay, even if
replacements for them have been made." Mastro Plastics
Corp. v. N.L.R.B., 350 U.S. 270, 278. Moreover, where
an economic strike has been converted into an unfair
labor practice strike as in the instant case an employer is
likewise obligated to reinstate "unfair labor practice strik-
ing employees upon their unconditional offers to return
to work."13 Philip Carey Manufacturing Co.,,Miami
Cabinet Division v. N.L.R.B., 331 F.2d 720, 729 (C.A.
6).
The Trial Examiner finds nothing in the Act or in the
legislative history of the Act where the intent is expressed
that unfair labor practice strikers shall be ousted from
their right to continue peaceful picketing against un-
remedied unfair labor practices or that they shall lose
their status as unfair labor practice strikers because a
"meritorious charge" alleging unfair labor practice has
not been filed with the Board where, as here, competent
and undisputed evidence established that unfair labor
practices have been committed against which the picket-
ing is directed. Indeed in National Packing Company,
18 Had the Employer not instituted this policy it seems likely that all the Supreme Court said: "Within this definition [Section 2(3) of the Act]
employees may have returned to work by April 30, 1965, since their pur- the strikers remained employes for the purpose of the Act and were pro-
pose in approaching Superintendent Forrest was "to come back to work." tected against the unfair labor practices denounced by it."
13 In N L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345,
308-926 0-70-19
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., supra, the respondent employer was allowed to urge
an 8(b)(7) defense against an alleged 8(a)(1) violation
although it did not appear that a meritorious charge had
been filed alleging a violation of Section 8(b)(7).
The General Counsel's theory leads to the specious
conclusion that employees striking against the unfair
labor practices of their employer, even though such unfair
labor practices are provable, are not permitted the protec-
tion afforded to unfair labor practice strikers unless and
until a "meritorious charge" has been filed. The em-
ployees in the instant case were unfair labor practice
strikers by reason of their strike against their Employer's
unfair labor practices and remained unfair labor practice
strikers even though a "meritorious charge" was not filed
with the Board.14 The Trial Examiner finds nothing in the
Act which limits the period during which unfair labor
practice strikers may continue to strike or picket or bars
them from a return to work upon an unconditional offer.
Unfair labor practice strikers are apparent favorites of the
law whose rights are not to be cut off except upon specific
statutory direction. (See Mastro Plastics Corp. v.
N.L.R.B., supra.) The Trial Examiner finds none. "Nor
may we forget that the interests to be protected are
primarily those of employees ...." Philip Carey Mfg.,
Co., Miami Cabinet Division v. N.L.R.B., supra, 735.
Under the circumstances of this case the failure of the
Union to file unfair labor practice charges ought not to
work a forfeiture of employees' statutory rights.
An employer's refusal to reinstate unfair labor practice
strikers is an unfair labor practice. Rangaire Corporation,
157 NLRB 682, footnote 11. Blue Diamond's employees
continued as unfair labor practice strikers throughout the
periods herein involved and as unfair labor practices
strikers exercised a protected right to picket in protest of
the unfair labor practices against which they were striking
until such time as the unfair labor practices were
remedied. Picketing for such purpose does not fall within
the proscription of Section 8(b)(7)(A) and may not be
enjoined.
Second: In addition to proving that an objective of the
picketing was for recognition or organization, the General
Counsel must also prove, in order to establish a
8(b)(7)(A) violation, that the picketing was not on behalf
of a labor organization "currently certified as the
representative of such employees." The General Counsel
concedes that the picketing was on behalf of "the District
and/or International." 15
The International was certified as bargaining represent-
ative on January 16, 1964. Blue Diamond's employees
left their jobs on April 27, 1965. Had the strike been an
14 President Beane testified that charges were not filed with the Board.
15 It is alleged in the consohdated complaint that " . Respondents
have picketed , and caused to be picketed..
16 The General Counsel apparently recognized this proposition of law
since he cited the following language from the case: "However, after the
first year if the certificate has elapsed, though the certificate still creates
a presumption as to the fact of majority status by the union, the presump-
tion is at that point rebuttable even in the absence of unusual circum-
stances."
17In this regard the General Counsel has not brought to the Trial Ex-
aminer's attention the specific evidence on which he may rely for
rebutting the presumption.
economic strike these employees, who exceeded the
returned strikers and striker replacements in number,
would have been included with those employees eligible
to determine the majority status of the International until
April 28, 1965, pursuant to Section 9(c)(3) of the Act.
Thus, prior to April 29. 1965, the International's certifi-
cation was current and valid. The General Counsel does
not claim otherwise but asserts that the International
"was not `currently certified' on April 30, 1965 within the
meaning of 8(b)(7)(A)." Whether the International lost its
current certification, of course, depends upon whether
the presumption as to the fact of its continued majority
status created by the certification is rebutted by "com-
petent evidence." See Celanese Corporation ofAmerica,
95 NLRB 664, 672.16 It becomes pertinent therefore to
examine the record to determine whether the evidence
adduced rebuts the presumption. 17
The Trial Examiner is of the opinion that the presump-
tion as to the fact of the majority status by the Interna-
tional created by the certification has not been rebutted
by competent evidence. Of controlling importance in
reaching this conclusion are the following factors.
(a) On April 30, 1965, the unfair labor practice
strikers referred to above exceeded the number of
returned strikers and striker replacements.
(b) Competent credible evidence is lacking to prove
that a majority of the working employees of Blue
Diamond had designated a labor union other than the In-
ternational as their bargaining agent on April 30, 1965.
Dewey Goodson, a member of the Southern Labor
Union, obtained two or three packages of the blank
designation cards from the Southern Labor Union at
Cumberland, Kentucky, sometime in January 1965.
These cards were distributed to Blue Diamond em-
ployees. Goodson testified that cards were signed on the
job. In soliciting signatures Goodson told the employees
that "if there wasn't a union in the plant they would have
to quit."18
Designation cards for the Southern Labor Union which
were offered into evidence were identified by Blue
Diamond's Office Manager Keen as cards which were
submitted to the Employer on April 30, 1965. Relying on
these cards, Blue Diamond recognized the Southern
Labor Union.19 For the purpose of authenticating the
cards Keen testified that he "checked each individual
signature against the signatures that were in the personnel
file of each individual." Out of the 120 cards submitted he
rejected 4 or 5 "because their signature didn't appear to
be authentic according to their signature in the personnel
file."20 Keen testified that he possessed no "special train-
18 While there is some ambiguity in Goodson 's testimony he gave em-
ployees the impression that if they did not choose the Southern Labor
Union they would lose their jobs. Thus there is an unresolved question in
the record as to whether the cards represented the uncoerced desires of
the signatories
19 The fact that Blue Diamond may have recognized the Southern
Labor Union in good faith is immaterial as proof of the loss of Interna-
tional 's majority status See International Ladies' Garment Workers'
Union, AFL-CIO [Bernhard Altmann] v N.L.R.B., 366 U.S. 731,738
E0 Keen did not recall which cards he had considered bore authentic
signatures.
LOCAL NO. 8280, UMW
'ing as far as handwriting, reading handwritting and so
forth is concerned. " 21 Keen testified that he did not check
the dates appearing on the cards.22 Some of the cards
bore dates later than April 30, 1965; some cards were of
employees whose names did not appear on the Em-
ployer's April 30 payroll. After Keen checked the
cards they did not remain in his custody or control. While
Keen identified the cards as those which he had examined
on April 30, 1965, he did not, at the hearing, pass upon
the authenticity of the signatures appearing upon them.
The General Counsel offered no other proof of the validi-
ty of the signatures appearing on the cards.23 It is clear
that the cards were not self-authenticating; but proof was
required to establish the validity of the signatures appear-
ing on them. Indeed, Keen's apparent confusion on the
witness stand in reference to the cards, the dispatch with
which the cards were validated by the Employer and the
speedy execution of the contract with the Southern Labor
Union manifested a prior determination to recognize such
Union rather than a desire to carefully consider the validi-
ty of the signatures. Moreover, the Employer made no in-
vestigation at all to ascertain whether the cards, which on
their faces disclosed that a majority of them were ex-
21 Keen was asked under what circumstances-would his job have
required him to review the authenticity of an employee 's signature He an-
swered , "... I sign most of them up . Of course , I have seen them there
sign their name at the time they signed up. Of course , if there is any
question that conies up regarding the pay day , the pay day the man might
have gotten , or the endorsement on a check I would always check it, and
several times I've done that ; checked the signature against the signature
of the man at the time he signed up."
22 A substantial majority of the cards produced at the hearing were
dated January 21, 1965.
23 The record is barren of any authentic specimen signatures with which
the Trial Examiner could have compared the signatures on the cards
279
ecuted in January, expressed the employees' desires on
April. 30. It seems clear that the record as a whole does
not disclose that the Employer engaged in careful
crosschecking of well-analyzed employer records with
the union authorizations. Moreover, the fact that the
General Counsel produced no witnesses to authenticate
the signatures, although it is apparent that such witnesses
were available, raises doubts as to whether a majority of
the signatures on the cards were in fact valid designations
on April 30.24
Viewing the record as a whole the Trial Examiner finds
that the proof adduced by the General Counsel is insuffi-
cient to rebut the presumption as to the fact of majority
status by the International created by the certification
and that the International was "currently certified as the
representative" of Blue Diamond's employees on April
30,1965 .25
RECOMMENDED ORDER
The Respondent's motion to dismiss is granted and the
consolidated complaint is dismissed.
24 " .. where the party on whom rests the burden of evidence as to a
particular fact has the evidence within his control and withholds it, the
presumption is that such evidence is against his interest and insistence "
N.L.R.B. v. Ohio Calcium Company, 133 F.2d 721,727 (C.A 6)
25 The Trial Examiner has considered immaterial any reference to the
contract executed on May 5, 1965, between the Southern Labor Union
and Blue Diamond since the claim is that the picketing became unlawful
on April 30 , 1965. Moreover , the contract which was , on the basis of the
record , executed by a minority union other than the certified union could
not constitute a bar to a representation proceeding . CE Meadowsweet
Dairy Farms, Inc., 158 NLRB 1044