Mine Workers District 17 (Dehue Coal)

National Labor Relations Board - Board Decisions

Jun 18, 1985

275 N.L.R.B. 715 (N.L.R.B. 1985)

MINE WORKERS DISTRICT 17 (DEHUE COAL) 715
District 17, United Mine Workers of America, and
its Local 5869 and Dehue, Coal Company, and
Big Foor Coal Company, Inc. Cases 9-CC-
1215-1, -2, 9-CC-1216-1, -2, 9-CB-5854-1,
-2, and 9-CB-5860-1, -2
18 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 16 August 1984 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondents filed cross-exceptions and a
supporting brief. Charging Party Dehue Coal Com-
pany also filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified."
While agreeing with the judge that the Respond-
ents violated Section 8(b)(1)(A) and 8(b)(4)(i)(B) of
the Act, 2 we also find merit in two of the General
Counsel's exceptions . We find that the judge's fac-
tual findings support the conclusion that the Re-
spondents, through the activity of their agents at
the Dehue facility, not only induced and encour-
aged employees of Dehue to engage in a strike in
furtherance of the Respondents' labor dispute with
Big Foot in violation of Section 8(b)(4)(i)(B), but
also threatened , coerced, and restrained Dehue
from conducting business in furtherance of the
same dispute in violation of Section 8(b)(4)(ii)(B) of
the Act.3 We also find that the Respondents,
through the activity of their agents at the Dehue
facility, blocked work areas at Dehue thereby pre-
venting Big Foot employees from entering the
Dehue facility to perform assigned tasks and
blocked ingress and egress at the Dehue facility in
violation of Section 8(b)(1)(A) of the Act.4
' While adopting the judge as modified below , we correct his inadvert-
ent reference to Sec . 8(bX4XiXA), in his first paragraph . The complaint
alleges, and the judge found, a violation of Sec . 8(b)(4XiXB). In addition,
the heading of sec . A,2, should refer to violations of Sec . 8(6X1), not Sec.
8(aXl).
' In adopting the judge 's recommended dismissal of the 8(bX2) allega-
tion, Member Hunter agrees with the finding of single employer status,
but finds it unnecessary to rely on fn . 3 in the judge's decision.
® Plumbers Local 274 (Stokely- Van Camp), 267 NLRB 1111 (1983).
4 Railway Carmen Local 543 (North American Car), 248 NLRB 285
(1980).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, District 17 , United Mine Workers of
America, and its Local 5869, their officers, agents,
and representatives, shall take the action set forth
in the Order as modified.
1. Insert the following as paragraphs 1(c), (d),
and (e).
"(c) Picketing the premises of Dehue Coal Com-
pany so as to physically prevent entry by employ-
ees or others with business with the Company or
otherwise blocking entry into the premises of that
Company.
"(d) Threatening , coercing, or restraining Dehue
Coal Company to force or require it to cease doing
business with Big Foot Coal Company.
"(e) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT picket the premises of Big Foot
Coal Company so as to physically prevent entry by
employees or otherwise block entry into that prem-
ises.
WE WILL NOT picket the mining premises of
Dehue Coal Company so as to physically prevent
entry by employees or others with business with
the Company or otherwise block entry into that
premises.
WE WILL NOT picket the premises of Dehue
Coal Company, or cause the employees of that
company to strike, with an object of forcing and
requiring the Dehue Coal Company to cease doing
business with Big Foot Coal Company.
WE WILL NOT threaten , coerce, or restrain
Dehue Coal Company to force or require it to
cease doing business with Big Foot Coal Company.
275 NLRB No. 101
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise, of the
rights guaranteed them by Section 7 of the ct.-
DISTRICT 17, UNITED MINE WORK-
ERS OF AMERICA; AND ITS LOCAL
5869
DECISION .
STATEMENT OF THE CASE
,THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held on May 16 and 17, 1984,
at .Charleston, West Virginia, on complaint of the Gener-
al Counsel against District 17, and its Local 5869, of the
United Mine Workers of America (Respondents or the
Union). The complaint issued on May 4, 1984, upon
charges filed by Dehue Coal Company and Big Foot
Coal Company, Inc. (the Charging Parties). The-issues to
be decided are whether the- Respondents violated. Sec-
tions 8(b)(1), 8(b)(2), and 8(b)(4)(i)(A) of the statute.
Briefs were filed by all parties.
On the entire record, and from my observation of the
witnesses, I make the following .
FINDINGS OF FACT
I. JURISDICTION
There are two employers involved in this proceed-
ing-, Dehue Coal Company and Big Foot Coal Co., Inc.
Dehue Coal Company, a West Virginia corporation, is
engaged in the mining, processing, and sale of bitumi-
nous coal During the 12-month period preceding issu-
ance of the complaint, in the course of its business it
shipped, from its West Virginia facility, products, goods,
and materials valued in excess of $50,000 directly to
points outside the State of West Virginia. I find that
Dehue Coal Company is an employer within the mean-
ing of the Act. -
Big Foot Coal Co. is an integral part of a number of
other mining operations, which use different names but
are all commonly owned and operated. Together, all of
these constitute- a single employer. One of these compa-
nies alone, Baron Coal Corporation, which does the pur-
chasing for all-of the component parts of the overall op-
eration, annually. purchases in excess of $50,000 of nonca-
pital equipment from suppliers located outside the State
of West Virginia. I find that Big Foot Coal is an employ-
er within: the meaning of the Act. See' also Plumbers
Local ,460 (L, J. Construction); 236 NLRB 1435 (1978).
II. THE LABOR ORGANIZATIONS INVOLVED
I find that District 17 and Local 5869 of the United
Mine. Workers of America are labor organizations within
the meaning of Section 2(5) of the Act:
III. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
Lucky Compton, an individual, is in the business of
taking coal out of the ground, what is commonly called
mining. He operates from place to place, sometimes
working at more than one location at a time. He does
not always own the property from which he takes the
coal, he at times contracts to take the coal out for the
owner of the land. He uses all kinds of names, from one
job to another, on occasion even forming a corporation
But the business is always of the same kind and it all be-
longs to him, insofar as this record shows. In January or
February 1984 he decided a certain mine he was operat-
ing at a place called Rum Creek (lust a. phrase used by
the local people to refer to a known location on the
map) did not pay enough, so he made an agreement with
a company called Sunbeam Energy to extract coal from
the ground for that company at another location, re-'
ferred to as Melville. He closed down the mine at Rum
Creek and-transferred the. mining equipment and about
all the employees working there to the new location. He,
also transferred some employees from another mine he
was operating,, at a place called Kelly Mountain, to work
at the Melville job: It is what happened at Melville,
where _the Union demanded recognition as bargaining
agent of the employees working there, that gave rise to
this proceeding.
For some years United Mine Workers of America,
through its District 17-and the various locals which con-
stitute the District, was the' bargaining agent for Comp-
ton's employees at all of his locations, at least all those
-which were spoken of during this hearing. The collec-
tive-bargaining agreement for all those. places, in effect
since 1981, was due to expire in September 1984. It is
called the National Bituminous. Coal Wage Agreement.
When the union agents learned of the move about to
take place, it asked that Compton continue to recognize
the Union as the representative of those employees at the
new location. Compton said he would do that, but only
on condition that the Union waive the "royalties" called
for by the contract then in effect. By the word "royal-
ties" Compton meant payment for health and welfare
benefits as provided for in the agreement. With the con-
tract still -having 6 months to go, the Union refused to
make that concession. With this, Compton decided to op-
erate his new location nonunion. In March the Union
called a strike at the new location, and -on April 9 the
Company agreed,-in writing, that it would abide by the
United Mine Workers Union National Agreement, as it
had in the past.
The complaint alleges that by picketing for recognition
.,-as the exclusive. bargaining agent, -the Union coerced the
Company into signing a contract, and therefore violated
Section 8(b)(2) of the Act. One of the basic factual con-
tentions which underlie this aspect of the case is that
what work Compton was having done on the new loca-
tion-Melville-was a' separate business from what he
did at the other locations, that the two had nothing to do
with one another. The National Contract, which the
Union insisted was binding upon Compton, always con-
tained a union-security clause, and therefore, the argu-
ment goes, since the Union did not come forth with
proof that it in fact was authorized to represent a majori-
ty of the employees, it had no right to bring pressure
MINE WORKERS DISTRICT 17 (DEHUE COAL) -
upon the Company to compel such membership among
its employees (See fn. 3 below.)
'A second allegation of the complaint is that during the
picketing of Compton's company, the Union was respon-
sible for mass picketing, blocking of entrances-into the
mine, and threats of violence, all of which constituted
violations of Section 8(b)(1) of the Act.
The third and last question raised by the complaint in-
volves a work stoppage that occurred at a company
called Dehue. Compton's agreement with the owner of-
the new mine was to take the coal out of the ground and
truck it to the Dehue Company, which processed it for
the owner of the coal. No one disputes the. fact Dehue is
a separate, secondary employer from the Compton's.
There was a strike at Dehue, i.e., all-its mining employ-
ees stopped,work together for 10 days until a state court-
restraining order was obtained by the General Counsel..
The complaint alleges that the Union caused that strike-
against a- neutral employer and thereby violated Section
8(b)(4) of the Act. There, the Union's defense is that all
of Dehue's employees acted on their own accord, that
they-all simply decided to strike, and that the Union or
its agents did nothing to induce the strike.
1. Single employer: alter ego, '
When Compton shut down the mining 'operation. he.
was doing at Rum Creek and started the ' new one at
Melville, he did no more than move his business from
one place to another. The argument the-other-way -
that the two mining locations became unrelated commer-
cial enterprises, separate and- distinct employers -rests
upon no'more than a matter of words; it ignores the sub-
stance of things. The mine at Rum Creek was called
Peerless Alma 11; later that name was changed to Kay
Ann Coal Company. Compton referred to that new
name as "just an extra corporation I had set up." The
mine at Kelly Mountain was called• Peerless Alma 7
There is another corporation called Baron Coal Compa-
ny, also owned by Compton, which does purchasing for
all of his mining operations, whatever their names, -in-
cluding the new one at Melville. Compton also made up
a new name for that mine; he called it Big Foot, even
forming another corporation with that name. All -that
really distinguishes the old one from the new is that they
are; or were, located at different places and that they
had different names.
There have been many cases before the Board where,a
second operation was held to be only, a disguised con-
tinuance of the first. Always a number of related factors
are considered in deciding whether the second is only an
alter ego, or single employer, with the first. Among
these are. common ownership, continuous use the
same supervisors, the same kind of work, use of the "same
equipment, and, most significant of all, 'continuing em-'
ployment of the same workmen ' comlilement.-'Fugaiy
Continental Corp., 265 NLRB 1301. (1982). If,' when
moved to the new location it is still the same kind 'of
business, owned - by the same people, ' managed by : the
same hierarchy, and 'using essentially the same employ=
ees, and if for the earlier location the Union was the es-
tablished bargaining. agent with a contract 'in effect,'I
think even the General Counsel will agree that' the
717
Union had a right to insist on the Employer honoring its
contract, -at least until it expired. -And this is exactly
what happened in this case.
The Big foot mine is owned by the same person who
owns the mines called Peerless Alma• 11 and 7, Lucky.
Compton.' He said he once sold the -Peerless Alma 7
mine , but then bought it back, and changed its name.-
Compton also owns 90 percent of the corporation called
Baron Coal Company, which, to the extent this record
shows anything about that company, does the purchasing
for all Compton' s- mines, whatever their names. What
better proof of the first factor to be considered
common ownership - can there be? Compton's son
Kenney is the day-to-day man in charge of each of these
mines. He goes from one to the other, as this one -opens
and that one closes, to do regular supervision. Again, the
same supervision over the two mines in question is a cold
fact: And that it is the same business all the time; at
every. location, needs no comment. Finally, the Compa-
ny's witnesses' admitted that- the mining equipment being
used at the Rum Creek location, called Peerless Alma 11,
was moved to the new location to be used there.
But the most significant factor in cases of this kind is
the continuance of the same work • force. When, on
March 26 and 27, the union officers asked Compton to
admit in writing that he was bound by the Union's Na-
tional Bituminous Coal Agreement,- there were 13 rank-.
and-file employees at .the Big Foot mine. Eight of them
had. signed dues-checkoff cards on March 26. On' cross-
examination, • Supervisor Kenney -Compton, who surely
knew the men best, testified about the following eight
men who had signed the-'dues-checkoff cards, all of
whom he. admitted were his employees at Big Foot at
the time.' Cletus Maynard and Robert Steward had come
from Peerless Alma 11; Terry Kennedy had worked at
both Peerless Alma 11 and ' 7; Anthony Testamen had
come from Peerless Alma l l;'James Murray had worked
at Peerless Alma 7; Roy Toney and 'Rick Lester had
come from Peerless Alma 11; and. Forest New had
worked at, both ,Peerless Alma -11 and' 7. Without more
this is proof positive that a majority of the employees at
the new location-8 out of 13-were simply employees
of the same company. who. had been transferred to a new
assign ment . In' addition to all this, there is further admis-
sion by; the company officials that 'others had also been
moved from the' old to the new place. Asked had any
employees come from his other locations, Lucky Comp-
ton answeied•"'Part of the people I had on several'of my
jobs."' Later he -said -that Toney Kelly,-'who went to Big
Foot; had worked for him at*botli'Peerless Alma 11 and
7, and that ,James Muney,, who-," could" have- worked at
' Lucky-Compton first testified that "all of the equipment I've got in
that mine 'is brand new " Latei,'still under oath, he said "I moved all of
the equipment out of Rum Creek, when I'started Big Foot ',', From-
Comp-ton's son, the superintendent of both mines, came the following
Q Now,-did-you ever'make'any statements-to'Mr Ferguson or
Mr Vidovich that you were going to move the men and the equip-
ment from Peerless Alma No 11 there at Rum Creek over to Sun-
beam, West Virginia or Melville, West Virginia, where the current
Big Foot mine is'' r
A Yes, we moved our,men and our equipment over there, yes, we
did
718- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big Foot, had also been an employee at Peerless Alma
11. On the question of just which employees were trans-
ferred, Lucky Compton was a poor witness. Later, from
his son, there came more revealing testimony : "There's
several people that we don't have checkoff cards on,
some of them that came from Rum Creek and some that
didn't." He then added that Gerard Compton had come
from Peerless Alma 7, Stanley Hendricks from Peerless
Alma. 11, and Carl Hobson and Robert Phillips from
Peerless Alma 7. In sum, it appears that virtually the
entire complement at the Big Foot location were em-
ployees of the Compton mines who had been moved,
with their equipment, from one mining operation to an-
other. -
However the concept be phrased-alter ego, single
employer,. or successor-Lucky Compton, in what he
chose to call Big Foot Coal Corporation, was obligated
in law to continue recognizing District 17 and its appro-
priate locals at the new location the day the Union asked
fort it. There was no National Labor Relations Board
charge filed against the Company but, had there been, it
would have been a perfect case of a violation of Section -
8(a)(5) of the -Act.
- Before starting work at his Big Foot operation, Comp-
ton was under a signed contract with United Mine
Workers of -America for both of the other two mines of
which the witness spoke-Peerless • Alma 11 and 7. On
this question of whether -the Union -was the established
bargaining agent at his -earlier two mines , ' Compton
stands as'a very badly discredited witness. His first state-
ment was: "I never signed no contract with No. 11."
The next- question was did he ' not turn in dues for the
people working at Peerless Alma 11, and he answered:
'They: probably did; I don't' know." Would the owner of
a business not know whether his bookkeeper was sending
dues to a union? Would any company transmit member-
ship dries 'to a union on behalf of its employees if they
were ' not--covered by 'a collective -bargaining agreement?
Or was Lucky Compton saying that while he did not
sign the contract , someone else may have done so, and
bound him , without his knowing it? His son, who did the
actual running of the mines, testifying after the father,
said flatly that the Company had signed the union con-
tract for both Peerless Alma 11 and 7.
The system'is that when a company opens a new mine,
at a new location , it signs a one-page ,attachment to 'the
National Bituminous. Coal. Wage Agreement; it does not
negotiate .a complete new contract with the Union. This
is what this Company had been, doing at its other mines,
and this is: what the union officers-asked it to do for the
Big- Foot mine .2 The main argument- in the General
z That the system ` is to simply attach a sheet to the main national union
agreement ;when another'mine -is-opened'is also `shown'by another in-
stance of Lucky Compton 's double-talk at the hearing.
Q. Have you ever been informed that a contract signed at one lo-,
cation can apply to mines at other locations? .
THE WITNESS - You're asking me if I know that the same contract
can apply from No 7 over to No. 11?
Q. By, MR - ARCENEAUX : That 's correct, ,
A. Well, it could have , I-don't know
Counsel's brief, in support of this part of the case, is that
because the union officers asked Compton to "sign"
something; that fact alone is proof that it knew it was
not the established bargaining agent for these employees.
That view distorts the case, and ignores all the relevant
factors so clearly shown of -record, as set out above.
What the Union was asking was that the Company admit
its statutory and contractual obligation to continue rec-
ognizing the Union- and its applicable contract, at the
new place of operations.
If there be any doubt as to the fact that the Union did
represent-the people then at work, and that both Comp-
ton and the union agents knew this to be true, the doubt
is completely dispelled by what the owner of the Com-
pany himself related at the hearing.
Compton said that in early February he spoke to Dis-
trict 17 Vice President Howard Green on the telephone.
Green had called him and Compton called him back.
First Compton said he did not remember what they had
talked about-an obvious lie. Then he said Green asked
him to sign a contract, and that his response was "I
asked Howard Green-for an extension of the contract."
The witness then added: "The Union had been known to
give people six months extension of up to a year contract
without paying any royalty on its coal." Compton then
explained that by "royalties", he meant the health and
welfare payments called for by the contract then in
effect.-.". . . for the investment that I had put into the
operation, I didn't know if it was going to make it or not
I knew 'the contract was coming up in six months
anyway. So that's why I tried to negotiate with.him."
Green refused to make any change in the existing con-
tract.
With- this from the General Counsel's principal wit-
ness, it is a fact the strike which then ensued was not for
recognition , but pure pressure upon the employer to
compel him to abide by the terms of the contract then in
effect. If, as the General Counsel contends, the Union
did not represent a majority of the employees, was the
employer trying, in February, to force a contract upon
his unwilling 'employees? Under this theory of complaint,
when, about 10 days after the strike started, Compton ca-
pitulated and asked the Union to sign the extra sheet
which acknowledged the effectiveness of the existing
contract, did the employer also commit an unfair labor
practice? It was a perfectly lawful economic strike that
took place'-at the Big Foot mine, -and I shall therefore
recommend dismissal of the complaint as to that inci-
dent.3
3 There is a second theory advanced by the General Counsel on this
aspect of the case which merits no consideration , because it misreads the
cited authorities and because it rests upon defective reasoning He had
several of his witnesses repeat that when demanding that the Employer
admit it was bound by the union contract , the agents did not assert that
the Union in fact represented a majority of the employees . If in fact the
Union did,not represent a majority, would its claim , merely stated, suffice
to prove the fact') If this record contained no proof-as in fact it does-
that the Union was the established bargaining agent of the employees in-
volved, would the absence of such evidence suffice to prove it did not? Is
a void the equal of a positive9 The cases cited in the General Counsel's
brief hold that it is' s burden upon the General Counsel to prove affirma-
tively that the demanding union did not then represent a majority In
Continued
MINE WORKERS DISTRICT 17 (DEHUE COAL) 719
2. The 8(a)(1) violations
On the question of the Union's responsibility for the
mass picketing and obstruction of' entrances that oc-
curred at the Big Foot mine location, and for the second-
ary picketing and strike that took place at the Dehue
Company plant, the answer denies the complaint allega-
tion that the officials of the Union were in fact "agents".
of Respondents, in the statutory sense. The title of each
one of them is conceded. The participants in the afore-
said activity were: Danny Wells, auditor for District 17;
Emil Canterbury, Danny Ferguson; Dave Vidovich;
Freddie Williams, and Clifford Martin, all elected field
representatives of District 17; Clarence Evans,. president
of Local 5869; and Roy Wisman, Larry; Vizes, and Roy
Lenus, all three mine committeemen for Local 5869. The
field representatives are all paid agents of the District;
they work as assigned organizers; they are responsible
for the proper handling of strikes called by the Union;
they participate in regular efforts to resolve labor dis-
putes with' employees and all strike activities. Danny,
Wells, in addition to being the auditor of District 17, is
also on the District's executive board. Among his re-
sponsibilities is the duty to help in picketing activities; in
fact he said he was paid particularly for such activities,
when he went to the Dehue plant in March.
I find that the individuals named above were all agents
of the Union ai the time of these events. Electrical Work-.
ers IBEW Local No. 3 (Ericisson Telecommunications),
257 NLRB 1358 (1981). Their authority, as paid officials
of the Union, to police the Union's collective-bargaining
agreements and to do organizing work, clearly places
them as agents. Painters Local 1555 (Alaska Constructors);
241 NLRB 741 (1979).. And finally, the very presence of
a number of these officials on the picket lines at both the
Big Foot location and the Dehue plant made them par,- t
ticipants to the unlawful activity then taking place.' .
Broadway Hospital, 244 NLRB 341 (1979). .
Two witnesses testified about the kind of picketing
they saw at the Big Foot mine on March 27 and 28=
Richard Zigmund, the president of the Dehue Company,,
and Bill Brown, its mine superintendent. They went to„
the Big Foot location several times because of what was
happening simultaneously at the secondary place of busi-,
ness, with the hope of resolving the problem without fur-
ther trouble. In their testimony they placed a number of,
the union agents at -the Big Foot site, as actual partici-'.
pants in the picketing and blocking of ,entrances. Of all
the agents mentioned, only Canterbury gave 'testimony,,
on the same subject, and he did not really contradict
what, the General Counsel's witnesses said. All Canter-'
bury said was that he did see 15 to 20 men at, a `time
picketing an entrance, that some of them•did wear, masks, ,
Hotel Employees Local 33 (Little Luigi's Italian Foods), 153 NLRB'392:'
(1965), the parties "stipulated that the union did not then'represent a
majority of the employees " In Bryan Mfg Co, 119 NLRB 502 (1957),
the Board said, " the General Counsel's evidence establishes a prtmfi
facie case as to the Union's lack of majority " If this reasoning of thef
General Counsel is correct, it means every time a company and a union
sign a first contract containing a union-security clause , it can issue a com-
plaint against the union, and unless the union can come forth. with posi-
tive proof that it did represent a majority, the complaint' is sustained
based-solely on the fact of the contract I do not so read Board law.
and that he did not tell them to stop what they were,
doing. He denied seeing' bats in anyone's hands' and,'
somewhat- unbelievably, closed with' saying he did not
know where the pickets came from.-- - ' '
I therefore credit the following -testimony of Zigmund
and Brown. There are two passages for access to'the' Big'
Foot mine, one over a bridge and one by a side road off
the main highway. Both are also 'used by ' a few local
residents. When Zigmund and Brown arrived at the loca-
tion early in the morning of March 27, they saw. a'
number-of people standing on the bridge approach. Zig-
mund thought about 15 and Brown thought about '20:
The men were blocking the road to anyone except local'.
people who lived there and agents of either of the Com-.
panies , Compton's or Dehue's. Among the people so im-
peding passage were Farrell, the recording secretary of
Local 5869; Evans, its president; Lawson of that local's
safety committee; and Wells and Vidovich. Brown said
he saw the' men in masks and carrying' sticks: Kenney
Compton, the owner's son, said there' were from 50 to 75'
pickets there that morning, that all had their -faces cov-
ered, and' that most of them carried baseball; bats. There
is no question in my mind but that the superintendent' of
the'-mine was exaggerating. Moreover, Ldo not credit
him against -Zigmund and Brown, because. this witness,
by his demeanor, by his repeated evasiveness, and by his,
repeated, inconsistencies about-many of .the things he
talked-about, made a very poor impression.upon me.
That -union agents, in -great number; were. present
when this blocking-of . entrance was going on • is not,
denied; indeed , " . it is , admitted that they, did nothing to,
stop it. I find that by the mass -picketing.of.the Big Foot
mine that morning, and by the,blocking of, entrances on
the part of the striking men, Respondents District 17 and-
its-Local 5869 violated Section 8(b)(1) of,the Act.
Zigmund and Brown were back at the Big Foot mine
the, next day, both in the morning and in the afternoon:.
This. time they saw a number of employees on the, road-
way going to the mine, with about eight .trucks parked
on the road, • again blocking passage and again letting
through only residents or members.of management.,And•-
here also present , were, as both men testified,' ,Evans,,
Lawson, 'and Vidovich. I find that by blocking ,the en-
trance to the mine that day, again in the-presence-of and.
with the participation of the union "agents,", the Re-
spoiident`violated. Section 8(b)(1) of the Act. Railway.
Carmen - Local" 543 '(North _ American Car Corp.)., 248'
NLRB ' 285 '(1980):
•' 3. Secondaiystrike "
That the 'Union; District .17 _ togetherwith its, Local,
5869, called a strike of the Dehue's employees in order
t9 stop that „company , from handling Compton'"' "non-
union'.'.",coal, is as.clear as day.' Local 5869,also'. represents
the Dehue employees.- One union agent, after another ,ran,,,
to the Dehue plant'late'on March 26, immediately
after learning that Compton' was refusing to ' honor his
contract .and chose instead to operate "nonunion:" All
the coal that the Big Foot mine produced had to be
trucked to Dehue for' processing. The'union"agents, in
great -number, were back' at'Dehue's early in the morning
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of March 27. The union agents were back again in a few
hours later. The Dehue employees normally arrive
before 7 a.m.; some were already there prepared for
work. Both those who had already come and the-others,
as they arrived, refused to work-no less than about 30
men. There was a complete work stoppage, and it re-
mained unbroken for 9 days, until ended by a court
order. That the union agents told the Dehue men' to quit
work, and told the Dehue management they would not
stand by while the secondary employer did business with
the primary one, is proved by some of the' things the
union witnesses said at the hearing . But the admissions
are not even necessary here for a finding of secondary
inducement and a violation of Section 8(b)(4) of 'the Act.
Why did the union agents go 'to the Dehue plant that
day? What was their intent , their purpose? There is a
parallel between this case and Shattuck Denn Mining v.
NLRB, 362 F.2d 466 (9th Cir. 1966). When an employer
fires a man , and there is a question about its motive, you
weigh its asserted reason advanced in defense and, if it is
found to be false, you infer that the motive was the ille-
gal one alleged in the complaint . One union agent after
another testified that his reason for going down to the
Dehue plant on the morning of March 27 was only to
inform those employees that there was a union meeting
scheduled to take place that evening. There is uncontra-
dicted evidence that the usual way of informing employ-
ees about meetings in the UMW is by radio among these
mining operations . There is also uncontradicted evidence
that ' normally the mere presence at the entrance of a
mine of a number of employees standing idle-especially
union officers-as was true here, means a picket line!
Both sides suffer poor credibility in this case. The Comp-
tons were not.telling the truth about the Union's repre-
sentative status among the Big Foot employees. But the
union officers were also lying with respect to why they
ran so -quickly to the Dehue mine on March 26 and 27. It
was a poor coverup for the obvious.
Brown, the Dehue mine superintendent, and Taylor,
one of its foremen, testified they saw six men standing
together at the entrance of the Dehue plant about 5 p.m.
on March 26, including four whom they recognized as
Canterbury, Vidovich, 'Ferguson, and Farrell, all paid
agents of the Union. Taylor said that when some trucks-
arrived from the Big Foot mine with coal, these men
blocked their entrance into the plant. Taylor recalled
that Canterbury told him that because Big Foot had re-
fused to sign its contract - for that location , ". . . that he
had,been to Big Foot Coal Company that day, and that
they were not signatory to the contract, and, that he
wanted me to stop Big Foot 's trucks : from dumping. He
said, 'If you don't, I will."' When the 'first of the trucks
arrived, Canterbury, "told the truckdnver to take the
truck back, that Compton would understand." When
Taylor interjected and told Canterbury his problem was
with Big Foot,' not with Dehue, 'Canterbury "turned to
the truckdriver and said , 'You are not going to dump the
coal.'." By that time the police arrived and things were
smoothed over; the coal was dropped in the presence of
the police. -
Canterbury, called as a_witness, did not deny any of
the foregoing testimony by Taylor. Rather, he reinforced
the conclusion that the union agents were there to stop
the business that was going on. "I told him [the Big Foot
driver] that he shouldn't dump it. I said , 'Do you know
this is nonunion coal that you're even hauling?"' Fergu-
son, who was also present then, said he and the other
agents of the Union went down to the Dehue plant in
separate cars. His version of what happened when the
trucks arrived is very unconvincing. It illustrates much
of his testimony about the entire story of the Union's ac-
tivity at the Dehue plant. Ferguson testified:
The driver of the truck stopped, and there was a
few words exchanged from some people because
the truck was running loud. There was two guys
over here at 'the truck. I was back here talking 50
feet away to a retired miner -from that place and
things just started happening, nothing physical or
anything, but the truck went over to another part of
the area and parked.
Later in his testimony came the following from Fergu-
son. - '
Q. It did not dump the coal into the bin where
the Big Foot trucks normally dump their coal?
A. It did not.
Q. Do you deny that you saw a pickup truck pull
across behind that coal truck as to prevent it from
dumping its coal in the regular place?
A. I don't deny it.
I find that the presence of all those agents of the
Union at the entrance to the Dehue plant later in the day
on March 26 constituted a regular picket line, intended
to prevent the dumping of coal from the primary to the
secondary employer and therefore a violation of Section
8(b)(4) of the Act.
The next day at 6 a .m. as Zigmund continued to testi-
fy, Ferguson appeared again at the entrance to the
Dehue preparation plant, just standing in the en-
tranceway with three other men. Zigmund saw him
waving the arriving Big Foot truck down and talking to
the driver. With Ferguson was Martin, another union
representative. When Zigmund asked why were they
there, they said it was just to inform the employees
about a planned-union meeting that evening. The repre-
sentatives also told Zigmund then that they were there
to tell the employees that Dehue was buying nonunion
coal from Big'Foot. When Zigmund told Martin the Big
Foot problem was not his, Martin came back with "there
was no way that they were going to allow me, to buy
nonunion coal in Logan County. Dannie spoke up and
said that we might as well face reality, that there was no
way that the union was going to let it happen." At this
point Martin added that the employees' "were going to
have a meeting to determine whether they were going to
work or not by what the representatives had told them
there when they stopped them, and that the way he saw
it, if they allowed Dehue to buy nonunion coal, then ev-
erybody would try it."
Later that same day, Zigmund saw more agents of the
Union standing at the entrance to the plant; there were
MINE WORKERS DISTRICT 17 (DEHUE COAL) 721
from 10 to 15 persons there, among them about 6 union
agents . When three Big Foot trucks arrived to weigh
and deliver coal, the agents stopped them.- One of the
pickets hit the door of the first truck, saying: "Scab, you
can't run nonunion coal here." That truck went through,
but the next two were stopped. A picket threatened the
second driver with a stone in his hand. By this time the
police arrived again , and order was restored.
I fully believe Zigmund's testimony. In conclusionary
terms the union witnesses professed innocence. Wells,
the District 17 auditor, just said he went to the premises
of the secondary employer "to try to find out what ex-
actly the problem was that was causing- the work stop-
page." It was a most implausible explanation! The only
explanation of his presence there that day was to tell the
employees about a union meeting . Ferguson said he told
the Dehue employees to go to work. How do I reconcile
that statement with Canterbury's, that he told the em-
ployees not to handle the Big Foot coal? Or with the tes-
timony of Vidovich, another union representative who
was there:
We tried to persuade the drivers not to dump the
coal. One driver pulled up and I was standing in the
vicinity and the driver just kept going like he was
going to try to run over me, and Mr. Zigmund
came out. I talked to Mr. Zigmund about the situa-
tion, and the next thing I know, the State police ar-
rived. They dumped the coal and we went back
down the road. -
As stated above, not one of the Dehue employees,
about 30, worked that day-March 27-the day all those
union agents crowded the entrance to the place. They
had arrived as usual, intending to work, but decided after
arrival to strike. The testimony of Zigmund and Brown,
which I credit, plus the admissions of inducement by the
union witnesses themselves, leaves no doubt that the
Union ordered the strike. I find that by such action the
Respondents-District 17 and its Local 5869-violated
Section 8(b)(4)(i)(B) of the Act that day. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
- The activities of Respondents set forth in section III,
above, - occurring in connection with the, operations of
Dehue Coal Company and Big Foot Coal Company,
have a close, intimate , and substantial relationship to
trade, traffic, and commerce among • the several - States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1.. By mass picketing the mining premises of Big Foot
Coal Company so as to physically prevent entry by em-
ployees and by otherwise blocking entry into the-prem-
ises , Respondents District 17 and its Local 5869 have
violated Section 8(b)(1)(A) of the Act.
2. By picketing the premises of Dehue Coal Company
and by causing the employees of that company to strike,
with an object of forcing and requiring the Dehue Com-
pany to cease doing business with Big Foot Coal Compa-
ny, District 17 and its Local 5869 have violated Section
8(b)(4)(i)(B) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4 '
ORDER
The Respondents, District 17, United Mine Workers of
America, and its Local -5869, and their officers, agents,
and representatives, shall
1. Cease and desist from
(a) Picketing the mining premises of Big Foot Co_ al
Company to physically, prevent entry by employees or
otherwise blocking entry into the premises of that Com-
pany.
(b) Picketing the premises of Dehue Coal -Company,
and causing the employees of that Company to strike,
with an object of forcing and requiring the Dehue Com-
pany to cease doing business with Big Foot Coal Compa-
ny.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at their offices and meeting halls copies of the
attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including, all places
where notices to members' are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
In all other respects it is recommended that the com-
plaint be, and it is , dismissed. -
4 If no exceptions are filed as provided by Sec 102 46 of the Bo'ard's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules; be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses -
s If this Order is enforced by a Judgment of a'United States Court of
Appeals, the 'words in the (notice reading "Posted ' by Order 'of the Na-
tional Labor-Relations Board" shall read "Posted Pursuant to S Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
d 11l L b BR l ta a or oare a ions