Mine Workers District 2

National Labor Relations Board - Board Decisions

Jul 20, 2001

334 N.L.R.B. 677 (N.L.R.B. 2001)

MINE WORKERS DISTRICT 2 677
United Mine Workers of America, District 2 and
Jeddo Coal Company

United Mine Workers of America, Local 803 and
Jeddo Coal Company. Cases 4–CC–2204 and 4–
CC–2217
July 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On February 3, 1999, Administrative Law Judge Mar-
garet M. Kern issued the attached decision. Respondent
United Mine Workers of America, District 2 (District 2)
filed exceptions and a supporting brief. The General
Counsel filed cross-exceptions and a supporting brief.
Respondent District 2 and the General Counsel also filed
briefs in support of certain portions of the judge’s deci-
sion.
The National Labor Relations Board has delegated its
authority in the proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings and conclusions1 and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
Mine Workers of America, District 2, its officers, agents,
and representatives, shall take the action set forth in the
Order as modified.

1 The judge concluded that Respondent District 2 was responsible,
under two separate agency theories, for certain actions of Respondent
United Mine Workers of America, Local 803 (Local 803). We agree.
In adopting the conclusion of the judge, Member Liebman relies solely
on the judge’s findings that Respondent District 2 was aware of the
secondary picketing and did nothing to discourage it. Member Lieb-
man agrees with the judge that Teamsters Local 860 (Delta Lines), 229
NLRB 993 (1977), is instructive as it points out steps that Respondent
District 2 could have taken in advance to minimize the chance that
Local 803 would subsequently engage in unlawful conduct. Member
Liebman does not, however, suggest that Respondent District 2 was
under an affirmative obligation to take such advance preventive steps,
or that its failure to do so was itself unlawful.
Chairman Hurtgen and Member Truesdale conclude that Pagnotti
Enterprises (a primary) was present at the Honeybrook jobsite. They
therefore do not pass on whether Freya Land was an ally of Pagnotti.
Assuming arguendo that Freya was a neutral, that would simply add
another neutral at Honeybrook. (NEPCO—Northeastern Power Com-
pany—and its subcontractors were the other neutrals at Honeybrook.)
The site would nonetheless be a common situs and the picketing con-
formed to the Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950)
standards.
2 We shall delete par. 1(c) of the judge’s recommended Order. This
language is not necessary to remedy the 8(b)(4)(B) violations found in
this case.
1. Delete paragraph 1(c) of the recommended Order.
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT in any manner engage in, induce, or
encourage individuals employed by Citistores, Inc., Se-
curity Savings Association of Hazleton, Reading Blue
Mountain Railroad, No. 1 Contracting Corporation, An-
thraco, Inc., Anthraco, Ltd., or any other person engaged
in commerce or in an industry affecting commerce to
engage in a strike or a refusal in the course of their em-
ployment to use, manufacture, process, transport, or oth-
erwise handle or work on any goods, articles, materials,
or commodities; to perform any services where an object
thereof is to force or require Citistores, Inc., Security
Savings Association of Hazleton, Reading Blue Moun-
tain Railroad, No. 1 Contracting Corporation, Anthraco,
Inc., Anthraco, Ltd., or any other person to cease using,
selling, handling, transporting, or otherwise dealing in
the products of Jeddo Coal; or to cease doing business
with Jeddo Coal.
WE WILL NOT in any manner threaten, coerce, or re-
strain Citistores, Inc., Security Savings Association of
Hazleton, Reading Blue Mountain Railroad, No. 1 Con-
tracting Corporation, Anthraco, Inc., Anthraco, Ltd., or
any other person engaged in commerce or in an industry
affecting commerce, where an object thereof is to force
or require Citistores, Inc., Security Savings Association
of Hazleton, Reading Blue Mountain Railroad, No. 1
Contracting Corporation, Anthraco, Inc., Anthraco, Ltd.,
or any other person to cease using, selling, handling,
transporting, or otherwise dealing in the products of
Jeddo Coal, or to cease doing business with Jeddo Coal.

UNITED MINE WORKERS OF AMERICA, DISTRICT
2
334 NLRB No. 86
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
Carmen P. Cialino Jr., Esq., for the General Counsel.
Michael J Healey, Esq., for the Respondent.
David Swisher, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This
case was tried before me in Philadelphia, Pennsylvania, on
December 9, 1998.1 A complaint was issued in Case 4–CC–
2204 on August 6 based on an unfair labor practice charge filed
on July 1 by Jeddo Coal Company (Jeddo Coal) against the
United Mine Workers of America, District 2 (Respondent or
District 2).2 A second complaint was issued in Case 4–CC–
2217 on November 30 based on an unfair labor practice charge
filed on October 20 by Jeddo Coal against the United Mine
Workers of America, Local 803 (Local 803) and the complaints
were consolidated. At the hearing, counsel for the General
Counsel moved to sever the proceedings against Local 803,
which motion was granted, and Local 803 entered into a formal
settlement agreement. This decision therefore addresses the
allegations in the consolidated complaint only as they relate to
District 2.
FINDINGS OF FACT
I. JURISDICTION
Jeddo Coal is engaged in the mining and sale of anthracite
coal at various locations in northeast Pennsylvania, including
Ebervale, Pennsylvania (the Ebervale facility). Respondent
admits, and I find, that Jeddo Coal is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that District 2 and Local 803
are both labor organizations within the meaning of Section 2(5)
of the Act. Respondent further admits that Joseph Lupcho and
Larry Romanchik are the president and financial secretary of
Local 803, respectively, and that Joseph Bellas and Richard
Buhl are strike captains for Local 803. Respondent admits that
these four individuals are agents of Local 803 but deny that
they are agents of Respondent within the meaning of Section
2(13) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The affiliated companies of Jeddo Coal
There were three Pagnotti brothers. Joseph Pagnotti Sr. (de-
ceased) had three children: Michelene Kennedy, Mary Rose
Pagnotti, and Joseph Pagnotti Jr. Bob Pagnotti (deceased) had

1 All dates are in 1998 unless otherwise indicated.
2 In connection with this case the Regional Director filed a petition
for Sec. 10(l) injunctive relief in the U.S. District Court, Middle Dis-
trict of Pennsylvania. A hearing was held before the Honorable Tho-
mas I. Vanaskie on August 25 and the transcript of that proceeding was
made part of the record in this case by stipulation of the parties. On
September 10, the court entered an order granting a temporary injunc-
tion against District 2.
two children: Maryanne Eggleston and Judy Haddonfield.
Louis Pagnotti Ill (retired) has five children: James, Robert,
Joseph, David, and Beth Anne Brennan.
Charles Parente is the chief executive officer of Pagnotti En-
terprises, Inc. Michelene Kennedy is the president and treas-
urer, Maryanne Eggleston is a vice president and secretary, and
David Swisher is a vice president and assistant secretary. Jo-
seph Pagnotti Jr. is the general manager. Jeddo-Highland Coal
Co. (Jeddo-Highland) is an 80-percent owned subsidiary of
Pagnotti Enterprises. The corporate officers of Jeddo-Highland
are the same as the officers of Pagnotti Enterprises. Jeddo Coal
is an 80-percent owned subsidiary of Jeddo-Highland. James
Pagnotti is president, David Swisher is vice president and sec-
retary and Michelene Kennedy is treasurer. The remaining 20
percent of Jeddo Coal is owned by a partnership made up of the
children of Charles Parente (the Parente partnership). The
General Counsel takes the position that Pagnotti Enterprises,
Jeddo-Highland, and Jeddo Coal are allied enterprises and con-
stitute the primary employer here (the Pagnotti primary affili-
ates).
Freya Land Company is a limited liability holding company
with the same business address as Pagnotti Enterprises. Louis
Pagnotti, Inc. owns 45 percent of Freya Land. The officers of
Louis Pagnotti, Inc. are Michelene Kennedy and Maryanne
Eggleston. Twenty percent of Freya Land is owned by the Par-
ente partnership. Eighteen percent of Freya Land is owned by
the Tedesco Corporation. The remaining 17 percent is owned
by Swisher and members of his family. Swisher is also a man-
ager. Freya Land has no employees. The General Counsel
does not concede that Freya Land is a primary employer.
2. The primary dispute
From May 23, 1990, until May 23, 1994, Jeddo-Highland
was party to an industrywide collective-bargaining agreement
with the United Mine Workers of America (the International or
UMWA) known as the Anthracite Wage Agreement of 1990.
On December 22, 1994, Jeddo-Highland and the UMWA en-
tered into a memorandum of agreement in which the terms and
conditions of the Anthracite Wage Agreement of 1990 were
continued in effect until June 30, 1995. On the expiration of
the memorandum of understanding, Jeddo-Highland and the
UMWA engaged in negotiations for a successor agreement.
These discussions continued until November 10, 1996, when
Jeddo-Highland declared that the parties were at impasse. On
December 16, 1996, Jeddo-Highland implemented the terms of
its final offer, which are contained in a collective-bargaining
agreement known as the Anthracite Wage Agreement between
Jeddo-Highland and the UMWA. This agreement is effective
by its terms from December 16, 1996, to December 15, 2000.
In article XXIII of this agreement, Jeddo-Highland retained the
right to assign the agreement to its wholly owned subsidiary,
Jeddo Coal. That assignment was made effective January 1,
1997. Since January 1, 1997, therefore, the 1996–2000 Anthra-
cite Wage Agreement has been in effect between Jeddo Coal
and the UMWA.
Unfair labor practice charges were filed with the Regional
Director of Region 4, alleging that the December 16, 1996 uni-
lateral implementation of Jeddo-Highland’s final offer was
MINE WORKERS DISTRICT 2 679
violative of Section 8(a)(5). The Regional Director dismissed
the charges on March 24, 1997, concluding that a good-faith
impasse had been reached. The dismissal was upheld by the
Office of Appeals of the General Counsel on May 16, 1997.
On March 26, the employees of Jeddo Coal went on strike.
Picketing has been conducted at the Ebervale facility since that
date on a daily basis 6 days per week.
B. Citistores, Inc.: Wendy’s
George Hayden operates a Wendy’s franchise located on
Route 309 in Hazleton, Pennsylvania. Hayden and members of
his immediate family own the land, the building, and the equip-
ment, and Citistores, Inc. owns the franchise. Hayden is also
the president of Hayden Electric, an electrical contractor that
has performed struck work for Jeddo Coal. The parties
stipulated that Citistores is a neutral employer.
On June 11, at lunchtime, Hayden observed approximately
seven pickets standing on the sidewalk in front of Wendy’s and
walking across the driveway. He observed a picket sign that
read, “Hayden Electric Unfair to UMWA.”
C. The Honeybrook site
1. Background
Beltrami Enterprises, Inc. (Beltrami) owned 2000 acres of
land situated along Route 309 in Audenreid, Pennsylvania, 6
miles from the Ebervale facility. Within that 2000-acre site is
an area of 5 to 10 acres where Beltrami operated a breaker until
1981 with employees represented by the UMWA.3 This smaller
tract, which borders on Route 309 and is directly accessible
from the roadway, is known as the Honeybrook site. A second
entrance/exit to the Honeybrook site is located on Church
Street. From 1981 to 1991, the Honeybrook site was idle. In
1991, Beltrami filed for bankruptcy and Pagnotti Enterprises
was recognized as a secured creditor. On June 9, 1995, the
bankruptcy trustee entered into a licensing agreement with
Northeastern Power Company (NEPCO) in which the trustee
granted to NEPCO an exclusive license to remove culm mate-
rial from the Honeybrook site. The culm material removed by
NEPCO is used as a fuel source at its cogeneration plant in
McAdoo, Pennsylvania. In exchange for the exclusive license,
NEPCO agreed to pay per ton royalties to the bankruptcy es-
tate.
In June 1997, NEPCO subcontracted the culm removal work
to Russell Postupack CuIm Corp., Inc. (Postupack CuIm).
NEPCO is Postupack CuIm’s only customer. Postupack CuIm
removes the culm, processes it, and loads it onto trucks owned
and operated by Joe Zakrewsky Trucking. Zakrewsky Truck-
ing transports the culm to NEPCO’s McAdoo facility. The
employees of Postupack CuIm and Zakrewsky Trucking are not
represented by the UMWA.
In November 1997, Freya Land was formed for the specific
purpose of purchasing 7400 acres of real property from the
Beltrami bankruptcy estate, including the Honeybrook site.

3 A breaker is a coal processing plant. Run of mine coal is coal in
its raw state after it has been removed from the ground. The material
contains coal, rock, and other impurities. It is fed into a breaker that
cleans the product and produces the finished coal product which is sold.

Swisher testified that the separate corporation was formed for
business reasons including tax and liability considerations.
Freya Land does not own any property not purchased from the
Beltrami estate.
On November 3, 1997, the trustee entered into two agree-
ments with Pagnotti Enterprises, Jeddo Coal, Jeddo-Highland,
and Freya Land relating to the Honeybrook site. The first was
an asset purchase agreement in which Freya Land purchased
the surface estate and Pagnotti Enterprises purchased the min-
eral and personalty estates including the culm and silt deposits
atop the surface. The second was an assignment contract in
which the trustee assigned the NEPCO licensing agreement to
Pagnotti Enterprises, Jeddo-Highland, Jeddo Coal, and Freya
Land collectively as the assignee. This assignment is presently
in effect and Pagnotti Enterprises receives the tonnage royalties
from NEPCO.
2. The picketing
On June 16, Russell Postupack observed approximately
seven pickets at the Route 309 entrance to the Honeybrook site.
Four of the pickets wore signs that read “Pagnotti/Parente Un-
fair to Labor, UMWA” and “Pagnotti Subcontracting Our Jobs
Away, UMWA.” Postupack saw Romanchik among the pick-
ets and asked him if it were necessary to picket Postupack’s
operations. Romanchik responded that he was sanctioned by
the International to picket, that the International was aware that
he was there, and that he did in fact feel it was necessary to
picket Postupack’s operation. Romanchik suggested that if
Postupack joined the UMWA the picketing would stop. During
this conversation, the question of Postupack Culm’s relation-
ship to the Pagnotti primary affiliates was discussed. Postupack
testified that he tried to convince Romanchik that he was not an
agent of Pagnotti Enterprises. Romanchik questioned the pres-
ence of Joseph Pagnotti Jr. at the site and Postupack told Ro-
manchik the reasons Pagnotti Jr. was present: to check weigh
tickets, to deal with trespass issues, and to supervise the demo-
lition of the old Beltrami breaker.
The pickets were present at the Honeybrook site for 7 hours
on June 16. During the course of the day, Postupack observed
the Zakrewsksy trucks being blocked by pickets as they at-
tempted to leave the property. After the trucks left, they refused
for a time to return.
On June 22, Postupack observed approximately nine pickets
at the Route 309 entrance, four of whom carried signs. He also
saw picket signs nailed to trees and one taped on a nearby stop
sign. Bellas was seen on the picket line several times that day.
On June 23, 24, 26, July 1 and 23, and August 4, Postupack
observed pickets at the Route 309 entrance. At times the pickets
sat in chairs or under trees. Picket signs were sometimes held,
sometimes posted on trees or a stop sign, or leaned against
motor vehicles. On June 23, Postupack observed a Zakrewsky
truck drive past the pickets and not enter the property. On July
23, Postupack observed Romanchik and Buhl on the picket line.
On August 4 he observed Lupcho on the picket line. There was
no picketing at the Honeybrook site after August 4. At no time
did any of the picketing activity at the Honeybrook site take
place other than at the Route 309 entrance. There was no pick-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
eting activity at the Church Street entrance and neither entrance
was designated as a reserved gate.
3. The presence of Joseph Pagnotti Jr. at the Honeybrook site
Joseph Pagnotti Jr. has been employed by Jeddo-Highland
since he was a teenager. Prior to 1996, he served as general
manager of all of Jeddo-Highland’s coal mining and coal prepa-
ration operations and he regularly attended bargaining sessions
on behalf of Jeddo-Highland. Presently, Pagnotti Jr. serves as
the general manager of Pagnotti Enterprises. As such, he is
responsible for the Freya Land properties and all activities that
take place on those properties, i.e., lumbering, coal mining,
culm removal, scrap iron removal, and home rentals. He also
inspects the properties to ensure there are no hazards or illegal
activity.
In June, July, and August, Pagnotti Jr. had occasion to be at
the 2000 acre Audenreid property to inspect rental homes lo-
cated on the property and to supervise the scrapping of the old
Beltrami breaker. He was also specifically present at the Hon-
eybrook site to ensure that NEPCO performed to its contract.
Pagnotti Jr. testified in relevant part:

Q. And so, NEPCO had the right to get the material
from that land?
A. Yes.
Q. Okay. And Pagnotti had the right to derive revenue
from that?
A. Yes.
Q. Okay. In connection with that basic relationship,
what did you do?
A. Well, l made sure that we were getting credited for
all the trucks that left the property, all the material that
left. And, I supervised the testing of the material…there’s
a commercial testing, an independent testing lab that
NEPCO and Pagnotti use to test the material to get a BTU
value and a sizing value.
Q. What are you looking for there? Any particular
size?
A. Yeah, well, they can’t what they call ‘cut the prod-
uct’ smaller than 5 inches. So, basically, I had to make
sure that they weren’t rejecting anything smaller than 5
inches. And, the blending—there’s two types of residual
waste on the property and that’s the coarse, which is a
lower quality culm, and silt, which is a little bit higher
quality. And I made sure that they were, we were getting
a proper accounting of how much of each material, so we
got a proper BTU value on the material.
Q. Okay.
A. And a proper tonnage also.

Pagnotti Jr. acknowledged during his testimony that he was
present at the Honeybrook site on virtually a daily basis from
mid-June to early August. He typically arrived at about 7 a.m.
and he left at 3 p.m. In the intervening hours, he would some-
times leave the site to attend to other duties. There is no clear
record testimony as to the number of hours Pagnotti Jr. spent at
the Honeybrook site, although he gave an estimated range of
from 0 to 10 hours each day. Postupack testified that the normal
hours of operation at the site are 7 a.m. to 3:30 p.m., Monday
through Friday and that during the period of the picketing Pag-
notti Jr. was present most days. He further testified that Pag-
notti Jr. generally arrived between 9 and 11 a.m. and was typi-
cally present in the afternoon for the last trucks. Pagnotti Jr. did
not always take the same route entering and exiting the Honey-
brook site. He testified that if he saw pickets on the way in on
Route 309, he would sometimes leave through the second en-
trance/exit to avoid them. He did not believe that the pickets
would necessarily have seen him leaving the facility once he
entered.
D. Security Savings
Security Savings Association of Hazleton (Security Savings)
is a mutual savings association with its main branch at 31 West
Broad Street, Hazleton, Pennsylvania. Richard Laubach is the
president and chief executive officer of Security Savings and
George Hayden is on the board of directors. The parties stipu-
lated that Security Savings is a neutral employer.
On June 29 at 9 a.m. Laubach observed six or seven pickets
in front of the main entrance to the West Broad Street branch.
He observed two picket signs that read, “Who’s On the Board
of Security Savings and Crosses United Mine Workers Picket
Lines?” and “George Hayden Unfair to the United Mine Work-
ers.”
E. Reading Blue Mountain: the Port Clinton facility
Reading Blue Mountain Railroad (Reading Blue Mountain)
maintains a principal office in Port Clinton, Pennsylvania (the
Port Clinton facility), and provides railway services to Jeddo
Coal. Alfred Luedtke is the general manager of Reading Blue
Mountain. It is not in dispute that Reading Blue Mountain is a
neutral employer.
Prior to the commencement of the strike, railroad employees
moved railway cars to an exit siding within the Ebervale facil-
ity. The railway cars were loaded and then taken away to their
delivery destination. Sometime after the strike commenced, the
railroad employees refused to cross the UMWA picket line. As
a result, in May, Reading Blue Mountain leased a locomotive to
Jeddo Coal and Jeddo Coal employees moved the railway cars
in and out of the Ebervale facility.
On July 9, Luedtke observed approximately six pickets at the
entrance to the Port Clinton facility. Three of the pickets car-
ried signs which read “RBM&N is unfair to United Mine
Workers.” He did not observe anyone distributing leaflets.
The pickets remained at the Port Clinton facility for about 4
hours that day.
On July 11, Reading Blue Mountain sponsored an open
house at the Port Clinton facility for the public to view its rail-
road operations and equipment. Several thousands of people
attended the open house. That day, Luedtke observed approxi-
mately six pickets at the entrance to the Port Clinton facility but
he did not observe the language on their picket signs. He did
not observe anyone distributing leaflets.
F. The Jeanesville Site
Up until 1990, No.1 Contracting Corporation (NCC), a sub-
sidiary of Jeddo-Highland was engaged in the mining of an-
thracite coal at a 37-acre site located in Jeanesville, Pennsyl-
vania (the Jeanesville site), and its employees were represented
MINE WORKERS DISTRICT 2 681
by Local 803. From 1990 to 1996, the mine site was dormant.
In February 1996, Alvin Roman, a vice president of NCC, pur-
chased the assets of NCC from Jeddo-Highland including the
real property, the heavy equipment, and the corporate name.
The transaction between Roman and Jeddo-Highland was at
arm’s length and an unfair labor practice charge alleging that
NCC was the alter ego of Jeddo-Highland was dismissed by the
Regional Director for Region 4, on September 23, 1996. Since
February 1996, NCC has been engaged in the mining of anthra-
cite coal at the Jeanesville site and its employees are repre-
sented by the United Steel Workers. None of the coal produced
by NCC since 1996 has been for any of the Pagnotti primary
affiliates.
The Jeanesville site is located on a State roadway and on the
opposite side of the roadway, approximately 50 feet from the
Jeanesville property line is land owned by Jeddo Coal. The
Jeddo Coal property at one time housed a rock crushing opera-
tion, but there has been no business activity on the site for at
least 10 years. In August, the land was barren and barricaded.
Occasionally a Jeddo Coal employee drives by to ensure there
are no trespassers.
Howard Winters is the superintendent for NCC. On August
11, Winters observed approximately eight individuals standing
across the street from the Jeanesville site on the side of the
State roadway abutting the Jeddo Coal property. Winters did
not observe any picket signs.
On August 13, Roman observed approximately eight indi-
viduals standing at the same location, but did not observe any
picket signs.
On August 18, Winters observed approximately eight indi-
viduals standing at the same location and one of the individuals
was Romanchik. He saw a single picket sign leaning against
the windshield of a car. He did not see all the printed language
on the sign, but recalled seeing the word “Parente” on the top of
the sign.
G. Anthraco and Mid Valley Coal: the Primrose Colliery
There is a 62.5-acre strip mining pit known as the Primrose
Colliery located in Schuylkill County, Pennsylvania. Surround-
ing the strip mining pit are 500 acres owned by the Pagnotti
primary affiliates. There is a gated entrance to the property
beyond which is an access road which leads to the colliery
three-fourths of a mile into the property. There is also a garage
with a small office approximately 100 yards past the gate.
Inside the office are books and records which Federal and State
inspectors occasionally examine although it is not clear to
whom these records belong. Pagnotti Enterprises regularly
posts a security guards at the gated entrance. The guard stays
near the gate or sits in the office.
Bargaining unit employees of Jeddo-Highland traditionally
worked the Primrose Colliery and trucked the run of mine coal
to the Ebervale facility. For economic reasons, the pit was idled
in mid 1995. On or about October 8, 1997, Pagnotti Enter-
prises, Black Coal Corporation,4 and Jeddo-Highland entered
into a conditional sales agreement with Anthraco, Ltd. and
Anthraco, Inc. (Anthraco) with respect to the Primrose Colliery.

4 Another subsidiary of Pagnotti Enterprises.
Jeddo-Highland sold the mining equipment, Pagnotti Enter-
prises sold the surface estate, and Black Coal sold the mineral
estate to Anthraco. Of the total purchase price of approxi-
mately $2.5 to $3 million, $2 million is to be paid in cash and
the balance in run of mine coal over a period of 5 years. When
the full consideration is paid, an event that has not yet occurred,
Anthraco will take fee title to the conveyed properties. If An-
thraco defaults, the Pagnotti companies involved have the right
to repossess the property. There is no common ownership or
management between the Pagnotti primary affiliates and An-
thraco which is owned and operated by Stephen Mazur and his
sister, Evelyn Mazur.
At the same time as the conditional sales agreement was
executed, Anthraco and Jeddo Coal entered into a coal purchase
agreement where Jeddo Coal agreed to purchase coal product
from Anthraco for a term of years. Anthraco is not, however,
limited in its ability to sell run of mine coal to any other pur-
chaser.
In or about March 1998, Anthraco began operating the Prim-
rose Colliery with its own employees. Prior to the commence-
ment of the strike, Anthraco delivered run of mine coal to the
Ebervale facility using its own employees and driving its own
trucks. Following the strike, Anthraco’s drivers were unwilling
to cross the Ebervale picket line and in the summer of 1998
Jeddo Coal contracted with Mid Valley Coal Sales (Mid Valley
Coal) to truck the run of mine coal from the Primrose Colliery
to the Ebervale facility. There is no common ownership or
management between Mid Valley Coal and the Pagnotti pri-
mary affiliates.
On October 14, Daniel Kripplebauer, an employee of Jeddo-
Highland, was the assigned watchman at the Primrose Colliery.
He worked that day from 6 a.m. to 3 p.m. At about 7 a.m.,
Kripplebauer observed a car pull up to the gate and he observed
Jack Petusky, a member of Local 803, and Romanchik. During
the course of the day, a total of about 10 individuals came to
the site in seven vehicles. The men positioned themselves and
their vehicles on the opposite side of the road. A picket sign
was propped on a lawn chair and another was taped to the out-
side of a car. A third sign was draped over a 4-foot high reflec-
tor pole on the same side of the road as the gate. Kripplebauer
observed the following language on the signs:
“Mazur/Pagnotti,” “Unfair to UMWA,” “Scabs Work Here,”
“Trucking by Scabs,” and “Mazur/Pagnotti Strikebreakers
Work Here.” A second security guard, Nancy Pytak, was pre-
sent at the site for several hours that day and she observed a
picket sign on the reflector pole with the words,
“Mazur/Pagnotti Unfair to Miners.” The pickets remained from
about 7 a.m. to 2:30 p.m. Except for the security guards, no
other employee of the Pagnotti primary affiliates worked at the
Primrose Colliery that day.
Throughout the day, Mid Valley Coal truck convoys hauled
run of mine coal from the Primrose Colliery to Ebervale. The
convoys entered and exited the property approximately four
times.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
H. Relationship Between District 2 and Local 803
1. Constitutions and bylaws
The International and the Districts of the UMWA are gov-
erned by their respective constitutions. Locals of the UMWA
are governed by bylaws approved by the International. By the
terms of the International’s constitution (I.C.), the International
is divided into districts, subdistricts, and local unions (l.C. art.
3, sec. 2). All members of the International must also be mem-
bers of the district and of the local union within whose jurisdic-
tion they are employed (l.C. art. 3, sec. 4). All full-time elected
officials and appointed employees of the International, each
district, and each local union are required to participate in the
UMWA’s organizing of the unorganized (l.C. art. 3, sec. 5) and
the International has exclusive authority over organizing (I.C.
art. 10, sec. 6). The officers and executive board of the district
are responsible for implementing and administering all collec-
tive-bargaining agreements covering any members of the dis-
trict and must ensure that those agreements are fairly applied,
fully enforced, and faithfully obeyed. The district has no au-
thority to enter into any collective agreement, or to call or sanc-
tion any strike except as authorized by the constitution or by the
International (l.C. art. 9, sec. 6). Each local union elects a mine
committee, a safety committee, and an organizing committee.
The organizing committee is subject to the exclusive jurisdic-
tion of the International over organizing (l.C. art. 10, sec. 6).
The constitution further provides that collective bargaining is
conducted jointly by the International and the district (I.C. art.
19, sec. 5). Only the International president can call or author-
ize a strike, but the International president must consult with
the elected International district and local union officers af-
fected (l.C. art. 19, sec. 7). No district or local union can call
an authorized strike without approval of the International presi-
dent (l.C. art. 19, sec. 8) and the International maintains a selec-
tive strike fund which provides benefits to striking members
(l.C. art. 19, sec. 10).
District 2 encompasses all of the State of Pennsylvania,
western Maryland, and a portion of northern New York.
Within District 2, there are five subdistricts and 102 local un-
ions, including Local 803. Jay Berger is one of seven elected
District 2 executive board members. District 2 has its own
constitution (D.C.), which incorporates, verbatim, many of the
provisions of the International’s constitution. Under the Dis-
trict 2 constitution, District 2 is charged with the responsibility
to administer and enforce collective-bargaining agreements and
to process grievances (D.C. art. 2, sec. 4). Identical to the
mandates of the International constitution, District 2 representa-
tives must take all necessary and appropriate measures to insure
that collective-bargaining agreements are fairly applied, fully
enforced, and faithfully obeyed (D.C. art. 5, sec. 3). It is
charged with the identical responsibility as that of the Interna-
tional to secure legal protection of the right to strike and to
prohibit the use of strikebreakers (D.C. art. 2, sec. 8). Every
member of District 2 has the obligation to support all strikes
called by the International, to observe all picket lines, and not
to engage in any strikes other than those endorsed by the Inter-
national (D.C. art. 12, sec. 6). District 2 has legislative, execu-
tive, and judicial authority over all members and local unions
within its territorial jurisdiction (D.C. art. 3, sec. 3).
Local unions generally encompass employees at worksites
within the same company. In this case, the jurisdiction of Local
803 encompasses employees employed by Jeddo Coal. The
model bylaws governing Local 803 recite the identical lan-
guage as appears in the International and District 2 constitu-
tions regarding the obligation to secure legal protection of the
right to strike and to prohibit the use of strikebreakers (bylaws
art. 2, sec. 8), as well as the obligation to support all strikes
called by the International, to observe all picket lines, and not
to engage in any strikes other than those endorsed by the Inter-
national (bylaws art. 15, sec.7).
2. Collective bargaining with Jeddo-Highland
and Jeddo Coal
The International is the recognized exclusive bargaining
agent for the employees of Jeddo Coal. Representatives from
the International, district and local unions signed the Anthracite
Wage Agreement of 1990. The negotiations for a successor
agreement were conducted on behalf of the UMWA by a nego-
tiating committee consisting of representatives from the Inter-
national, district and local levels. The memorandum of under-
standing extending the terms of the 1990 agreement was exe-
cuted by Carson Bruening, secretary-treasurer of District 2.
The unfair labor practice charges filed in connection with the
Jeddo Coal negotiations were filed by the International and
District 2.
Under the terms of both the 1990 agreement as well as the
1996–2000 unilaterally implemented agreement, there is a
grievance arbitration procedure that provides that the initial
steps of a grievance, steps 1 and 2, are handled by members of
the local union through mine committees. At step 3, the griev-
ance is handled by an officer of District 2. Failing resolution at
step 3, the parties proceed to arbitration. Swisher testified that
he generally deals with Jay Berger, an executive board member
of District 2, on matters pertaining to grievances, requests for
information, and unemployment appeals. Pagnotti Jr. testified
that as the manager of Jeddo-Highland’s coal mining opera-
tions, he handled numerous grievances with representatives
from both District 2 and Local 803.
3. The strike
The strike against Jeddo Coal was authorized by Cecil E.
Roberts, president of the International. Prior to giving authori-
zation, Roberts consulted with Edward Yankovich, president of
District 2, and Dan Kane, a member of the District 2 executive
board. Yankovich and Kane, in turn, consulted with Lupcho
and Romanchik. All parties were in agreement to call a strike.
On cross-examination, Yankovich testified as follows:

Q. So, it’s fair to say that—in the three constituent
parts of the mine workers which you identified in the
opening of your testimony, the International, the district
and the local—jointly agreed to engage in a primary strike
against Jeddo. Correct?
A. Yes, that’s a fair–yes, that’s correct.

In its answer to the consolidated complaint, District 2 admit-
ted that it “has been engaged in a labor dispute with Jeddo and
MINE WORKERS DISTRICT 2 683
has been on strike and picketing at Jeddo since March 26, 1998.
However, it is denied that is when the labor dispute began. The
labor dispute with Jeddo began in May of 1994 when the last
collective bargaining agreement expired.” Yankovich testified
that he visits the Ebervale picket site every time he is in the
area although it is not clear how often that occurs. Berger testi-
fied that he goes to the Ebervale picket line once or twice a
week. All of the striking employees, those picketing at Ebervale
and those at other locations, are eligible and have been receiv-
ing strike benefits from the International selective strike fund.
Nine strike captains, all members of Local 803, have met
every Monday to decide if they are going to picket and/or leaf-
let, and to determine where these activities will take place.
Romanchik made the actual picketing/leafleting assignments.
Representatives from District 2 and the International have not
attended the strike captain meetings. Yankovich testified that
the strike captains and the officers of Local 803 are autono-
mous in their decisionmaking regarding picketing and leafleting
subject only to direction from the International.
Berger and Yankovich, both called as Respondent’s wit-
nesses, were asked about their knowledge of the presence of
striking employees at the six locations in dispute in this case.
They testified as follows:

Honeybrook site: Berger testified that this was the only
picket site other than Ebervale at which he was ever present. He
stopped by “one day” for about 10 minutes and he saw mem-
bers of Local 803 sitting in chairs and on the back of a truck.
He did not observe any of them walking back and forth and he
did not observe anyone patrolling with picket signs. During the
course of his stay, he was advised that Pagnotti Jr. was on the
site. Yankovich testified that he was not aware of any activity
at Honeybrook until he received a copy of the unfair labor prac-
tice charges here.
Wendy’s and Security Savings: Berger testified that the first
that he was aware of picketing at Wendy’s and at the Savings
Bank was after the fact when he was advised by Local 803
members what had occurred. He also saw newspaper articles
regarding these activities and he faxed the articles to Yank-
ovich. Berger and Yankovich discussed the picketing and they
agreed that the employees could leaflet at these locations but
could not picket with signs.
Yankovich testified that he told Berger that if he got the op-
portunity he should tell the local members that they have the
right under the law to leaflet but that they should be very care-
ful with the use of signs. Following his conversation with
Yankovich, Berger spoke with officers of Local 803, although
it is not clear exactly with whom he spoke or when. Berger told
them simply, “no more signs at the bank and at Wendy’s.” He
told them that if they were going to go any place to go with
leaflets. Berger testified that the reason he gave this advice to
the Local 803 representatives was because they were his union
brothers, not because he believed that District 2 would be liable
for their activities.
Yankovich testified that the first he was aware that there had
been picketing at Wendy’s and at the Savings Bank was when
he received the faxed newspaper articles from Berger. He ad-
mitted to being concerned after reading the articles that the
local members had coerced or threatened someone and he felt
an obligation to make sure that the members of Local 803 did
not engage in that conduct. He was also worried about their use
of picket signs. Yankovich testified that the reason he was con-
cerned was because these were his union brothers and he didn’t
want to see them get into trouble.
In connection with Berger’s advice to the Local 803 repre-
sentatives regarding leafleting, Berger testified that he was
familiar with a leaflet that was drafted by a Local 803 represen-
tative setting forth the nature of the dispute between the
UMWA and the Pagnotti primary affiliates. Berger acknowl-
edged that he told the Local 803 representative to consult with
the attorneys either for District 2 or the International before
distributing the leaflet. According to Berger, Local 803 does
not regularly retain its own attorneys.
Port Clinton facility: Berger was not asked, nor did he tes-
tify, when he first learned of activity at this facility. He did
testify that he had been told that there had been leafleting at
that location, although he did not state when he was told this or
by whom. The first he was aware of an allegation of picketing
at this site was when he received notice of the unfair labor prac-
tice charges. Yankovich testified that he was not aware of any
activity at the Port Clinton facility until he received notice of
the unfair labor practice charges.
Jeanesville site: Berger was not asked, nor did he testify,
when he first learned of activity at this facility. He testified that
it was his understanding that picketing had occurred across the
street from NCC on Jeddo property, although he did not state
when he was told this or by whom. Yankovich testified that he
was not aware of any activity at the Jeanesville site until he
received notice of the unfair labor practice charges.
Primrose Colliery: Berger was not asked any questions and
gave no testimony regarding his knowledge of the activity at
this location. Yankovich testified that he was not aware of any
activity at Primrose until the day before he testified at the hear-
ing.
IV. ANALYSIS
A. The Agency Issue
The initial question is whether Respondent is responsible for
the conduct engaged in by Local 803 at each of the six sites. If
responsibility is established, the question is then whether the
conduct at each site falls within the proscriptions of Section
8(b)(4)(i) and (ii)(B).
The General Counsel advances two different theories of
agency liability: first, that the constitutions, bylaws, and collec-
tive-bargaining practices of the UMWA establish an agency
relationship; and second, that by managing the primary picket
line at the Ebervale facility, Respondent is responsible for the
acts of those individuals who engaged in unlawful picketing
away from the primary site. Respondent counters that there is
no evidence to establish that Respondent instigated, supported,
ratified, or encouraged the secondary conduct, and that Re-
spondent had no affirmative obligation to discipline individuals
who may have engaged in unlawful secondary conduct. For the
reasons set forth below, I find merit to both of the General
Counsel’s theories of liability.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
Both the General Counsel and Respondent correctly argue
that Respondent and Local 803 are distinct entities and that one
is not automatically responsible for the acts of the other. Car-
bon Fuel Co. v. Mine Workers, 444 U.S. 212 (1979); Coronado
Coal Co. v. Mine Workers, 268 U.S. 295 (1925); Electrical
Workers (Franklin Electric Construction Co.), 121 NLRB 143,
146 (1958). The Act was specifically amended in 1947 to
make both unions and employers subject to the ordinary com-
mon law rules of agency, and the Board has a clear statutory
mandate to apply the ordinary law of agency to its proceedings.
California Saw & Knife Works, 320 NLRB 224, 250 (1995),
enfd. 133 F.3d 1012 (7th Cir. 1998). In asserting that Respon-
dent is responsible for the alleged unlawful picketing conducted
in this case, the General Counsel may not establish an agency
relationship based on the mere fact of affiliation between the
union entities. Rather, the General Counsel must establish
under relevant theories of agency that Local 803, in conducting
its picketing activities, was acting as the agent of District 2. I
find that the General Counsel has satisfied this burden.
There is no factual dispute regarding the sharing of collec-
tive-bargaining responsibilities in this case among the three
levels of the UMWA. The International is the recognized ex-
clusive bargaining representative of Jeddo Coal’s employees.
Representatives from all three levels signed the 1990 agree-
ment. By its constitution, the International delegated to District
2 the responsibility of implementing and administering the
collective-bargaining agreement with the employer. The Local
803 mine committee handles grievances at the initial steps and
District 2 handles grievances at the latter steps through arbitra-
tion. Representatives from the International, District 2, and
Local 803 participated in negotiations for a successor agree-
ment to the 1990 contract and a District 2 officer was the sole
person on behalf of the UMWA to execute the December 1994
memorandum of agreement. The International and District 2
filed the unfair labor practice charges challenging the em-
ployer’s unilateral implementation of its final offer. Represen-
tatives from all three levels participated in the joint decision to
call a strike and to engage in picketing.
The General Counsel argues that this case falls squarely
within the Board’s previous determinations finding an agency
relationship among the three levels of the UMWA. In Mine
Workers (Garland Coal Co.), 258 NLRB 56 (1981), affd. 727
F.2d 954 (10th Cir. 1984), the International argued that it was
not bound by the acts of its subordinate bodies in the context of
entering into an 8(e) agreement. The Board affirmed the admin-
istrative law judge’s finding that by delegating its contractual
and statutory duties to the district and local mine committee,
the International created an agency. Having done that, the In-
ternational could not disavow the actions of its agents. In Mine
Workers Local 17 (Joshua Industries), 315 NLRB 1052 (1994),
affd. 85 F.3d 616 (4th Cir. 1996), the Board approved the ad-
ministrative law judge’s extension of the Garland rationale to a
situation where an admission by a local officer regarding the
circumstances of an employee’s layoff was deemed to be bind-
ing on the district. Judge Schwartzbart wrote, with Board ap-
proval:

While these cases do not speak directly to establishing the lo-
cal union as the agent of the local’s District, there appears to
be no meaningful distinction that would preclude such agency
application from being so extended to the Districts, as well.
Under the existing shared arrangement, the local, in process-
ing and resolving grievances at the immediate level, also acts
as the agent of its parent District. [Id. at 1064.]

Finally, in Reading Anthracite Co., 326 NLRB 1370 (1998),
the Board found the International, District 2 (the same district
involved in this case), and the local all responsible for the lo-
cal’s discriminatory assignment of seniority dates. The Board
expressly relied on Garland and Joshua Industries and reiter-
ated the principle that the International, as the certified repre-
sentative and a signatory to the collective-bargaining agree-
ment, could delegate the duties of contract administration but
could not delegate the responsibility.
The agency relationship found in each of these cases arose in
the context of collective bargaining and contract administration.
In this case, the agency relationship between Respondent and
Local 803 arises in the same context. Respondent and Local
803 acted jointly to administer the 1990 agreement, acted
jointly to negotiate a successor agreement and acted jointly in
making the determination to strike and to engage in primary
picketing at the Ebervale facility. The decision to strike and to
picket was a direct result of the impasse reached in negotiations
and the agreed upon means by which District 2 and Local 803
sought, and continues to seek, to compel the employer to acqui-
esce to its demands. Since the alleged unlawful picketing oc-
curred within the collective-bargaining context, I find that Lo-
cal 803 acted as an agent of Respondent for the same reasons as
those enunciated in Garland, Joshua Industries, and Reading
Anthracite.
Nor are the Board’s decisions in these cases inconsistent
with the Supreme Court’s decision in Carbon Fuel as Respon-
dent appears to suggest. In that case, local unions of the
UMWA engaged in unauthorized wildcat strikes in violation of
collective-bargaining agreements. The Court concluded that
the International was not liable in damages where it did not
instigate, support, ratify, or encourage the wildcat strikes. In
this case, all three levels of the UMWA authorized the strike to
compel the employer to accede to their tripartite collective-
bargaining demands. Respondent did in fact instigate, support,
ratify, and encourage the strike and the primary picketing.
Having established Local 803 as its agent in the context of this
strike, Respondent is properly liable for the conduct engaged in
by Local 803 during the strike.
The General Counsel’s second theory of agency liability is
premised on the Board’s rule, longstanding and clear, that when
a union authorizes a picket line it is required to retain control
over the picketing. If a union is unwilling or unable to take the
necessary steps to control its pickets, it must bear the responsi-
bility for their misconduct. Auto Workers Local 695 (T. B.
Wood’s), 311 NLRB 1328, 1335 (1993), citing Boilermakers
Local 696 (Kargard Co.), 196 NLRB 645, 647–648 (1972).
Where, as here, the alleged misconduct occurs away from the
picket line, a union will generally not be held liable for striker
misconduct unless there is a showing of knowledge of that
MINE WORKERS DISTRICT 2 685
specific misconduct. Teamsters Local 812 (Pepsi-Cola New-
burgh), 304 NLRB 111 (1991). The burden is on the General
Counsel to establish either that the union authorized the con-
duct or that the union had knowledge of the conduct and failed
to disavow it and take corrective action. Plumbers Local 195
(McCormack-Young), 233 NLRB 1087 (1977).
There is no dispute that Respondent authorized the picketing
at the Ebervale site. Respondent admitted in its answer that it
has participated in the picketing being conducted at the primary
site, and at the hearing counsel for Respondent admitted that
the picket line is maintained by Respondent (Tr. 181). Yank-
ovich testified that he visits the picket line as often as possible
and Berger goes to the picket line once or twice each week.
Nevertheless, there is no direct evidence that Respondent au-
thorized the picketing at the six sites away from Ebervale. The
issue is therefore whether the General Counsel has proven, by a
preponderance of the evidence, that Respondent had knowledge
of what the Local 803 pickets were doing and thereafter failed
to disavow their actions and take corrective action. I find, based
on the testimony of Yankovich and Berger, that the General
Counsel has satisfied this burden.
It is helpful to examine the chronology of events. The first
incident of picketing away from the primary site occurred at
Wendy’s on June 11. Berger testified that the first he was aware
of this activity was when he was told about it by members of
Local 803. His testimony was deliberately vague in that he did
not specify with whom he spoke or when this conversation
occurred. His second source of information about the Wendy’s
picketing was a newspaper report of the incident which he
clipped and faxed to Yankovich. Berger skirted the question of
when this article appeared. Indeed, I find Berger’s testimony
misleading in this regard in that he lumped together his discov-
ery of the newspaper article reporting on the Wendy’s picketing
which occurred on June 11 with his discovery of the newspaper
article reporting on the Security Savings picketing which oc-
curred on June 29, 18 days later. It is reasonable to infer that
newspaper articles reporting on news events tend to be pub-
lished at or about the time the news event occurs. I find, based
on all of these facts, that Berger had to have been aware of the
Wendy’s picketing within a few days of June 11. The second
incident of picketing occurred at the Honeybrook site beginning
on June 16 and Berger admitted in his testimony that he was
aware of the picketing at this site. The third incident of picket-
ing occurred at Security Savings on June 29, and again the
event was reported in the local newspaper. Berger clipped the
article and faxed it to Yankovich. On July 1, an unfair labor
practice charge was filed and served on Respondent alleging
that Respondent, not Local 803, had violated Section 8(b)(4)(i)
and (ii)(B).
The chronology establishes that by mid-June Respondent had
specific knowledge that the officers and strike captains of Local
803 had embarked on a strategy of engaging in picketing at
sites other than at Ebervale. Berger and Yankovich were also
clearly aware of the unlawful nature of the picketing at
Wendy’s and Security Savings. Yankovich testified that he was
concerned that the local members had “coerced or threatened”
someone, a reference to the statutory terms of Section 8(b)(4).
He told Berger that if he got the opportunity, he should tell the
Local 803 representatives that if they were going to sites away
from Ebervale, they should go with leaflets, not picket signs,
again a statement which evidences some understanding of the
difference between picketing and leafleting and how those two
activities are treated under Section 8(b)(4). Berger testified that
he passed along this information in the form of friendly advice
from one union brother to another. This was the sum total of the
action taken by Respondent in response to its knowledge of
picketing activity at secondary sites. Indeed, Yankovich testi-
fied that he felt District 2 was without authority to tell Local
803 anything at all about its picketing activities as he viewed
the strike captains as completely autonomous, subject only to
direction from the International. Yankovich did not, however,
express his concerns about Local 803’s activities to anyone at
the International.
After receiving Berger’s advice, the strike captains continued
to meet every Monday and determined to conduct picketing at
three more locations: Port Clinton, Jeanesville, and the Prim-
rose Colliery. Respondent made no effort to attend the strike
captain meetings and gave no instructions or directives. The
picketing at Jeanesville and Primrose occurred after the issu-
ance of the first complaint in this case which named District 2
as the sole respondent, and still Respondent did not take correc-
tive action.
The facts of this case stand in stark contrast to the situation
considered by the Board in Teamsters Local 860 (Delta Lines),
229 NLRB 993 (1977). In that case, the international union
issued specific written instructions to its pickets designed to
prevent unlawful secondary conduct. In addition, union repre-
sentatives attended a meeting of striking employees and gave
oral instructions reinforcing the written instructions. When the
striking employees thereafter engaged in 8(b)(4) conduct, the
Board concluded that the international could not be held liable
as it had done all that it reasonably could have done to prevent
the misconduct. Delta Lines is instructive as it points out all
that Respondent could have done in this case and didn’t. Re-
spondent was lulled to inaction by its mistaken assumption that
it was not responsible for the conduct of Local 803 and by its
mistaken belief that Local 803 was autonomous in its picketing
activities. These self-serving errors do not exculpate Respon-
dent from liability. Respondent was obligated to make a “con-
scientious serious attempt” to curtail the conduct of the strike
captains which grew out of, and was closely associated with,
the strike and picketing at Ebervale. Meat Cutters Local 248
(Milwaukee Independent Meat Packers Assn.), 222 NLRB 1023
(1976). It failed to do so and must therefore be held responsi-
ble, under this second theory of agency liability, for that picket-
ing which is determined to violate Section 8(b)(4).
B. The Neutrals to the Dispute
The General Counsel takes the position, not disputed by Re-
spondent, that Pagnotti Enterprises, Jeddo-Highland, and Jeddo
Coal constitute the primary employer in this case and that Hay-
den Electric was a struck work ally. The General Counsel does
not concede, however, that Freya Land is an ally of the pri-
mary. I disagree.
In assessing whether an employer is neutral or not, the Board
and the courts have developed the ally doctrine which has two
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686
branches. One involves the employer whose neutrality is al-
leged to be compromised by the performance of struck work,
that is, work that would have been performed by the primary’s
employees but for the strike at the primary employer’s facility.
Teamsters Local 776 (Pennsy Supply), 313 NLRB 1148, 1168
(1994); Teamsters Local 959 (Odom Corp.), 286 NLRB 834
(1983). The other involves an employer who is claimed to be
so closely related to the primary employer that the two consti-
tute a single employer or single enterprise. In determining
whether two entities constitute a single employer, the Board
considers four factors: (1) common ownership; (2) common
management; (3) interrelation of operations; and (4) common
or centralized control of labor relations. Mine Workers (Boich
Mining), 301 NLRB 872 (1991), enf. denied 955 F.2d 431 (6th
Cir. 1992). None of the individual factors determining neutral-
ity is considered in isolation, rather the Board weighs all of
them to determine whether in fact one employer is involved in
or is wholly unconcerned with the labor disputes of the other.
Teamsters Local 560 (Curtin Matheson), 248 NLRB 1212
(1980).
Over 80 percent of the ownership of Freya Land is in the
hands of the Pagnotti, Parente and Swisher families, the same
families who own and are officers of Pagnotti Enterprises,
Jeddo-Highland and Jeddo Coal. Freya Land was created for
the sole purpose of acquiring real property for the benefit of the
Pagnotti affiliates. Contractual relationships were entered into
by all four companies for a common purpose. The management
of Freya Land is in the hands of David Swisher and Joseph
Pagnotti Jr. Thus, there is evidence of common ownership,
common management, and interrelation of operations between
the Pagnotti primary affiliates and Freya Land. Although there
is no evidence of common control of labor relations, I find that
fact to be of little significance since Freya Land has no employ-
ees. I therefore find that Freya Land is an ally of the Pagnotti
primary affiliates under the single enterprise criteria.
The parties stipulated, and I find, that NEPCO, Zakrewsky
Trucking, Reading Blue Mountain, Security Savings, and Citi-
stores are all neutrals to the dispute between the UMWA and
the Pagnotti primary affiliates.
C. Wendy’s and the Security Savings
The evidence establishes that neither the primary nor Hayden
Electric, the struck work ally of the primary, was present or
conducting business at Wendy’s or at Security Savings at the
time of the picketing. These were purely secondary sites and
the picketing which took place there was plainly unlawful.
Respondent concedes this point in its brief. I therefore find that
Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act on
June 11 and 29 by engaging in picketing at these locations.
D. Reading Blue Mountain
On July 9, six individuals stood at the entrance to the Port
Clinton facility, three of them carrying picket signs. There is no
evidence that leaflets were distributed on this or any other day
at Port Clinton. On July 11, six individuals with pickets signs
again stood at the entrance to the facility. The primary was not
present nor conducting business at Port Clinton at the times of
the picketing and it was a purely secondary site. Respondent
defends this activity on the grounds that there is no evidence of
patrolling either with or without signs, and therefore there was
no picketing or any other conduct that violated Section
8(b)(4)(i) and (ii)(B). Respondent’s argument is without merit.
Individuals patrolling and carrying placards attached to
sticks constitute the classic form of picketing involved in al-
leged secondary boycott cases. However, neither patrolling
alone nor patrolling combined with the carrying of placards are
essential elements to a finding of picketing; rather, the essential
feature of picketing is the posting of individuals at entrances to
a place of work. The Board and courts have also recognized the
concept of “signal picketing” which, as with actual picketing,
concerns conduct operating as a signal to induce action by
those to whom the signal is given. Such cases typically involve
the stationing of union business agents near an entrance to a
jobsite or the placing of placards near an entrance—positioned
so that anyone approaching can read the printed message. Ser-
vice Employees Local 87 (Trinity Maintenance), 312 NLRB
715, 743 (1993), and cases cited there.
I find, based on the foregoing principles, that by stationing
six individuals with picket signs at the entrance to the Port
Clinton facility on July 9 and 11, Respondent engaged in pick-
eting which violated Section 8(b)(4)(i) and (ii)(B) of the Act.
E. The Jeanesville, Primrose, and Honeybrook Sites
1. Applicable principles of law
In applying the secondary boycott provisions of the Act, the
Board must balance the interests of unions in picketing at the
sites of their disputes against the interests of secondary em-
ployers to be free from picketing arising out of controversies in
which they are not directly involved. The legality of the picket-
ing at these three sites involves application of the same princi-
ples. In each case, the threshold issue is whether the situs of the
picketing is a common situs or a purely secondary situs. Reso-
lution of this issue turns on whether or not the primary, the
Pagnotti primary affiliates, was present and engaged in normal
business operations at each site.
It bears repeating that the Ebervale facility is the undisputed
primary situs where the primary owns the coal lands and is
engaged in the mining and sale of anthracite coal utilizing bar-
gaining unit employees. In contrast, the primary is present at
the three disputed sites to varying lesser degrees. At Jeanes-
ville, the sole evidence of the primary’s presence is its owner-
ship of the property, nothing more. It is not engaged in any
business operation and no employees are present. At the Prim-
rose Colliery site, the primary owns the land but is not engaged
in any business operation. A security guard is the only em-
ployee present. At the Honeybrook site, the primary owns the
land, the mineral deposits and the surface culm deposits, and
sells the surface deposits to a neutral employer with whom it
has a contractual relationship. A manager of the primary is
present but no employees are present.
The concept of a primary’s “presence” at a site is a related
but distinct concept from whether it is engaged in its normal
business operation at a site. Cleveland Building & Trades
Council (Aetos Construction), 297 NLRB 407, 415 (1989). For
if a primary employer is deemed not even to be present at a
particular location, then picketing at that location is purely
MINE WORKERS DISTRICT 2 687
secondary. Carpenters (Gulf Coast Construction), 248 NLRB
802 (1980); Los Angeles Building Trades Council (Silver View
Associates), 216 NLRB 307 (1975); Steelworkers Local 6991
(Auburndale Freezer), 177 NLRB 791 (1969), vacated 434
F.2d 1219 (5th Cir. 1970), on remand 191 NLRB 1 (1971). If,
on the other hand, the primary employer is present and conduct-
ing its normal business at the site together with other neutral
employers, the site becomes a common situs and picketing is
judged under the Sailors Union (Moore Dry Dock) criteria.5
Two or more employers performing separate tasks on common
premises constitute a common situs. Electrical Workers v.
NLRB (General Electric), 366 U.S. 667, 676–677 (1961); Elec-
trical Workers Local 323 (Indian River Electric), 206 NLRB
377 (1973). If the common situs is owned and operated by the
primary, the conduct may also be judged under the Supreme
Court’s General Electric/Carrier doctrine. General Electric,
supra; Steelworkers v. NLRB (Carrier Corp.), 376 U.S. 492
(1964); Oil Workers Local 1-591 (Burlington Northern Rail-
road), 325 NLRB 324 (1998).
2. The Jeanesville site
The General Counsel argues that by virtue of the contiguity
of the Jeddo property with the NCC property, the Jeanesville
site is a common situs. I disagree. For a common situs to exist,
both the primary and the neutral must, at some point in time,
occupy the same premises and perform tasks. General Electric,
supra. Since the primary has no business operation of any kind
on its property, the two properties together cannot be consid-
ered a common situs. The Jeanesville site was therefore a
purely secondary site and the picketing conducted there was, a
fortiori, secondary. The pickets could only have been directing
their appeal to NCC and its employees as there was no one else
present.
Respondent suggests through the testimony of Berger that
the picketing was lawful because the pickets stood on land
owned by the primary. This fact alone, however, is not disposi-
tive of the issue of whether the picketing was secondary in
nature. The Supreme Court has repeatedly stated that the loca-
tion of picketing is an important but not a controlling factor.
General Electric, supra; Carrier Corp., supra. By standing 50
feet from the entrance to NCC, the members of Local 803 were
engaged in signal picketing, intending to induce action by NCC
and its employees.
The evidence establishes that on August 11 and 13, eight
members of Local 803 stood across the street from the entrance
of the Jeanesville site without picket signs, and on August 18,
eight members displayed a single picket sign. Respondent con-

5 There are four criteria by which to measure the presumptive law-
fulness of picketing in common situs situations. Such picketing is pre-
sumptively lawful if: (a) the picketing is strictly limited to times when
the situs of the dispute is located on the secondary employer’s prem-
ises; (b) at the time of the picketing the primary employer is engaged in
its normal business at the situs; (c) the picketing is limited to places
reasonably close to the location of the situs; and (d) the picketing dis-
closes clearly that the dispute is with the primary employer. Sailors
Union (Moore Dry Dock), 92 NLRB 547, 549 (1950). The criteria are
not to be applied on an indiscriminate per se basis, but are aids in de-
termining the underlying question of statutory violation. Electrical
Workers Local 861 (Plauche Electric), 135 NLRB 250, 255 (1962).
tends that none of this activity constitutes picketing. Respon-
dent’s argument is without merit and I find that on each of the
three days that Local 803 members were present at the Jeanes-
ville site, they were engaged in picketing as that term is de-
fined. Trinity Maintenance, supra. I further find that this con-
duct violated Section 8(b)(4)(i) and (ii)(B) of the Act.
3. The Primrose site
With respect to the Primrose site, the General Counsel con-
tends that the primary has no presence at this site and that it is
therefore a purely secondary site. I agree. At the Primrose site,
the primary owns the land and assigns a single employee to the
site to secure the premises against trespassers. Within the
property a neutral third party, Anthraco, operates a strip mining
business. The primary, on the other hand, does not conduct any
business on the property. It is therefore not a common situs, but
rather a purely secondary situs. As in the case of the Jeanesville
site, the pickets could only have been directing their appeal to
Anthraco and its employees as there was no one else present.
Nor does the fact that the primary owned the property upon
which Anthraco was conducting its business of any moment.
The legality of picketing does not depend on title to property.
Retail Clerks Local 1017 (Crystal Palace Market), 116 NLRB
856 (1956), enfd. 249 F.2d 591 (9th Cir. 1957). The impact of
the picketing on Anthraco was no less because the primary was
the owner of the premises.
Respondent defends its activity on October 14 on two
grounds: first, that the work performed by Anthraco was related
to the primary’s normal operations and that the picketing was
therefore primary activity under the work-related test; and sec-
ond, that Anthraco was a struck work ally. I reject both of these
arguments.
With respect to the applicability of the work-related test, Re-
spondent ignores the essential factual premise of the Supreme
Court’s decisions in General Electric and Carrier: the exis-
tence of a common situs. Where premises are owned and oper-
ated by a primary employer, the Board and courts will look to
the nature of the duties being performed on those premises by a
secondary’s employees. If their duties are connected with the
normal operations of the primary employer, picketing directed
at them is protected primary activity. If, however, their work is
unrelated to the day-to-day operation of the primary employer,
the picketing is secondary and unlawful. Burlington Northern
Railroad, supra. In this case, the Primrose site was not a com-
mon situs for the reasons previously discussed, and Respon-
dent’s reliance on the work-related test is misplaced.
With respect to the struck work ally defense, I find Respon-
dent has presented no evidence to support that affirmative de-
fense vis-à-vis Anthraco. The conditional sales agreement and
the coal purchasing agreement entered into between the pri-
mary and Anthraco were executed more than 5 months before
the commencement of the strike and there is absolutely no evi-
dence that these agreements were entered into in anticipation of
the strike. The deliveries of run of mine coal to the primary
commenced prior to, not after, the strike. While it is true that
bargaining unit employees operated the mine prior to mid-1995,
it cannot reasonably be argued that when the mine was sold
more than 2 years later, the sale constituted a transfer of struck
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688
work. In addition, Swisher’s uncontradicted testimony was that
the Pagnotti primary affiliates had an established practice of
purchasing run of mine coal from outside sources and transport-
ing it to the Ebervale facility to be processed. An employer
does not forfeit its neutral status by continuing business deal-
ings with the struck employer in the same manner and to the
same extent as it did before the strike. Pennsy Supply, supra at
1168. For all of these reasons, I find that Respondent’s defense
with respect to Anthraco is wholly without merit.
Nor do I find Mid Valley Coal Sales to be an ally of the pri-
mary. According to the terms of the 1996–2000 collective-
bargaining agreement, the transportation of run of mine coal
purchased from bona fide third party sellers to Ebervale is ex-
pressly excluded from the classified work jurisdiction of the
UMWA. Since the work done by Mid Valley Coal is not work
that would have been performed by the primary’s employees, it
is not struck work.
4. The Honeybrook site
Turning to the Honeybrook site, the threshold issue is again
whether this is a common situs. The Pagnotti primary affiliates
and their ally, Freya Land, own the land and the culm and silt
deposits. The deposits are income producing assets which the
primary sells. By operation of the exclusive lease between the
primary and NEPCO, NEPCO’s subcontractor Postupack
Culm, and Postupack Culm’s subcontractor Zakrewsky Truck-
ing, enter the property on a daily basis to process and remove
these materials. The testimony of Pagnotti Jr. very clearly set
out the basic relationship: NEPCO has the right to get material
and Pagnotti Enterprises has the right to derive revenue. I con-
clude that these facts establish that the primary
is engaged in normal business operations at the Honeybrook
site and that it is a common situs.6
The General Counsel argues that the primary has no business
operation at Honeybrook because it has never had employees
working there, and relies on the Board’s decision in Los Ange-
les Building Trades Council (Silver View Associates), 216
NLRB 307 (1975). In that case, the primary was engaged as an
owner-builder in the building and construction industry. The
Board found that the primary was engaged in its normal busi-
ness only at its office, not at the picketed construction site
where it had no employees or supervisors and work was being
performed only by subcontractors. The General Counsel’s
reliance on Silver View Associates is misplaced because he
misapprehends the nature of the primary’s business here. By
way of illustration, had the Pagnotti primary affiliates hired its
own employees to load NEPCO’s trucks as they arrived at the
Honeybrook site, there would be no question that it was en-
gaged in a business operation. In this case the primary is able to
conduct its business without using its own employees because
NEPCO, though subcontractors, utilizes its own trucks and its

6 The exclusivity of the lease with NEPCO does not dictate a differ-
ent result. This is not a situation where the primary leases the property
to NEPCO and receives periodic lease payments for NEPCO’s posses-
sion and use of the property. The lease in this case is an contract where
NEPCO has permission to enter the property and remove the culm in
return for which it must pay the primary the contractually determined
purchase price.
own employees to perform the loading work. This method of
operation does not, in my view, change the fundamental nature
of the business of the primary. It is still engaged in the busi-
ness of selling culm, albeit without the need for its own em-
ployees to perform work. Indeed the Board has recognized that
the absence of employees does not furnish a per se basis for
finding that an employer is not engaged in its normal business
at a common situs. Electrical Workers Local 25 (Eugene Io-
vine), 201 NLRB 531 (1973). Moreover, the General Coun-
sel’s reliance on Silver View also ignores an essential distin-
guishing fact. In this case, the general manager of Pagnotti
Enterprises was at the site on an almost daily basis to supervise
the operation.
Having thus determined that the primary owns and operates a
business at Honeybrook, and that it was a common situs at all
times material here, the nature of the picketing is properly ex-
amined under the Moore Dry Dock criteria. I find that the pri-
mary was at all times present at the site and engaged in its nor-
mal business. In the absence of a reserved gate, the picketing
which took place at the main entrance to the premises was con-
ducted reasonably close to the location of the situs and the
picket signs clearly indicated that the UMWA’s dispute was
with the Pagnotti primary affiliates and no one else. Inasmuch
as the Moore Dry Dock criteria was met, and there is no other
evidence that the picketing was conducted for an unlawful ob-
ject, I conclude that the picketing at the Honeybrook site was at
all times lawful.7
CONCLUSIONS OF LAW
1. Jeddo Coal Company is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Pagnotti Enterprises, Inc., Jeddo-Highland Coal Co.,
Freya Land Company, Reading Blue Mountain Railroad, Secu-
rity Savings Association of Hazleton, Citistores, Inc., North-
eastern Power Company, Russell Postupack Culm Corp., Joe
Zakrewsky Trucking, No. 1 Contracting Corporation, Anthraco,
Inc., Anthraco Ltd., and Mid Valley Coal Sales are each a per-
son within the meaning of Section 2(1) of the Act.
3. Respondent United Mine Workers of America, District 2
is a labor organization within the meaning of Section 2(5) of
the Act.
4. United Mine Workers of America, Local 803 is a labor
organization within the meaning of Section 2(5) of the Act.
5. Respondent violated Section 8(b)(4)(i) and (ii)(B) on June
11, 1998, by picketing Citistores, Inc. at its Wendy’s franchise
location in Hazleton, Pennsylvania, with an object of forcing or
7 In view of my finding that the primary was at all times present and
engaged in business operations at the Honeybrook site, I need only
briefly address the General Counsel’s alternative theory that the pri-
mary was only engaged in business during those times when Pagnotti
Jr. was physically present. Even if I were to accept this theory, I would
find that Pagnotti Jr. was present on an almost daily basis and there was
no set pattern by which the pickets could have known when he was
away from the site. Indeed, the evidence establishes that Pagnotti Jr.
purposely used alternating entrances/exits to avoid having to pass the
pickets. The evidence is insufficient to establish that Pagnotti Jr. was
absent from the site at the times when the picketing was conducted.
MINE WORKERS DISTRICT 2 689
requiring Citistores, Inc. to cease using, selling, handling,
transporting, or otherwise dealing in the products of Jeddo Coal
and to cease doing business with Jeddo Coal.
6. Respondent violated Section 8(b)(4)(i) and (ii)(B) on June
29, 1998, by picketing at Security Savings Association of
Hazleton with an object of forcing or requiring Security Sav-
ings Association of Hazleton to cease using, selling, handling,
transporting, or otherwise dealing in the products of Jeddo Coal
and to cease doing business with Jeddo Coal.
7. Respondent violated Section 8(b)(4)(i) and (ii)(B) on July
9 and 11, 1998, by picketing at Reading Blue Mountain Rail-
road in Port Clinton, Pennsylvania, with an object of forcing or
requiring Reading Blue Mountain Railroad to cease using, sell-
ing, handling, transporting, or otherwise dealing in the products
of Jeddo Coal and to cease doing business with Jeddo Coal.
8. Respondent violated Section 8(b)(4)(i) and (ii)(B) on Au-
gust 11, 13, and 18, 1998, by picketing No.1 Contracting Cor-
poration in Jeanesville, Pennsylvania, with an object of forcing
or requiring No. 1 Contracting Corporation to cease using, sell-
ing, handling, transporting, or otherwise dealing in the products
of Jeddo Coal and to cease doing business with Jeddo Coal.
9. Respondent violated Section 8(b)(4)(i) and (ii)(B) on Oc-
tober 14, 1998, by picketing Anthraco, Inc., and Anthraco, Ltd.
in Schuylkill County, Pennsylvania, with an object of forcing or
requiring Anthraco, Inc. and Anthraco, Ltd. to cease using,
selling, handling, transporting, or otherwise dealing in the prod-
ucts of Jeddo Coal and to cease doing business with Jeddo
Coal.
10. Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(b)(4)(i) and
(ii)(B) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, United Mine Workers of America, District
2, its officers, agents, and representatives, shall
1. Cease and desist from
(a) In any manner engaging in, inducing, or encouraging in-
dividuals employed by Citistores, Inc., Security Savings Asso-
ciation of Hazleton, Reading Blue Mountain Railroad, No.1
Contracting Corporation, Anthraco, Inc., Anthraco, Ltd., or any
other person engaged in commerce or in an industry affecting

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
commerce to engage in a strike or a refusal in the course of
their employment to use, manufacture, process, transport, or
otherwise handle, or work on any goods, articles, materials, or
commodities or to perform any services where an object thereof
is to force or require Citistores, Inc., Security Savings Associa-
tion of Hazleton, Reading Blue Mountain Railroad, No.1 Con-
tracting Corporation, Anthraco, Inc., Anthraco, Ltd., or any
other person to cease using, selling, handling, transporting, or
otherwise dealing in the products of Jeddo Coal, or to cease
doing business with Jeddo Coal.
(b) In any manner threatening, coercing, or restraining Citi-
stores, Inc., Security Savings Association of Hazleton, Reading
Blue Mountain Railroad, No.1 Contracting Corporation, An-
thraco, Inc., Anthraco, Ltd., or any other person engaged in
commerce or in an industry affecting commerce, where an ob-
ject thereof is to force or require Citistores, Inc., Security Sav-
ings Association of Hazleton, Reading Blue Mountain Railroad,
No. 1 Contracting Corporation, Anthraco, Inc., Anthraco, Ltd.,
or any other person to cease using, selling, handling, transport-
ing, or otherwise dealing in the products of Jeddo Coal, or to
cease doing business with Jeddo Coal.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its busi-
ness offices and all meeting halls within its geographic jurisdic-
tion copies of the attached notice marked “Appendix.”9 Copies
of the notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to members
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Sign and return to the Regional Director sufficient copies
of the notice for posting by Jeddo Coal Company, Pagnotti
Enterprises, Inc., Jeddo-Highland Coal Co., Freya Land Com-
pany, Reading Blue Mountain Railroad, Security Savings As-
sociation of Hazleton, Citistores, Inc., No. 1 Contracting Cor-
poration, Anthraco, Inc., and Anthraco Ltd., if willing, at all
places where notices to employees are customarily posted.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
9 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 a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”