Mine Workers (Fletcher Mining)

National Labor Relations Board - Board Decisions

Jun 28, 1984

271 N.L.R.B. 20 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union, United Mine Workers of
America; District 17, United Mine Workers of
America; Local 750, United Mine Workers of
America; Local 1582, United Mine Workers of
America; Local 6572, United Mine Workers of
America and Fletcher Mining Company. Cases
9-CB-5555-1, 9-CP-268-1, 9-CB-5555-2, 9-
CP-268-2, 9-CB-5555-3, 9-CP-268-3, 9-CB-
5555-4, 9-CP-268-4, 9-CB-5555-5, and 9-
CP-268-5
28 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 December 1983 Administrative Law
Judge Marion C. Ladwig issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief and the Respondent filed a brief in
opposition thereto.
The National Labor Relations Board has delegat-
ed its authority in this 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
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
The judge found that Local 6572's president, William Cline, had joined
the picket line solely in his individual capacity and not as president of
Local 6572. The judge based his finding on Cline's testimony that he
lived near the jobsite and that, while passing by on the strike's second
day to get some drinking water, he decided to join the pickets in sympa-
thy. In adopting the judge's finding, we also rely on Cline's uncontro-
verted testimony that Fletcher Mining's Kayford operation was outside
Local 6572's geographical jurisdiction.
Member Hunter, in agreeing with the conclusion that Local 6572 was
not responsible for the picket violence, emphasizes that while normally
he would apply the presumption that picketing by a high level union offi-
cial is done in his official capacity, here the record indicates the contrary.
Thus, in view of the fact that Local 6572 had no primary interest in the
picketing, and because there is no evidence that Cline carried any signs
or otherwise identified Local 6572 with the picketing, Member Hunter
finds that the evidence is insufficient to establish that Cline was acting in
his capacity as a union agent.
The judge also cited in support of his finding the fact that Local 6572
never learned of Cline's involvement until it later received the unfair
labor practice charge. Contrary to the judge, we accord no weight to
this fact. It is well established that under the Act actual knowledge of an
agent's activities is not a precondition for liability. See Carbon Fuel Co. v.
Mine Workers, 444 U.S. 212 (1979).
271 NLRB No. 9
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge.
These cases were tried at Charleston, West Virginia,
September 20-22, 1983.' The charges were filed by the
Company May 2, and the consolidated complaint was
issued June 7 and amended at the trial. A former union
coal mining company began nonunion strip mining in an
area where many union coal miners were laid off. Unem-
ployed union miners (most of them wearing masks to
conceal their identity) blocked the entrance, made
threats, and destroyed company property.
The primary issues are (a) whether a District 17 offi-
cial made an implied threat to cause the Company trou-
ble if it refused to sign the union wage agreement, and
(b) whether the International, District 17, and three
UMW locals were responsible for the picketing and mis-
conduct, violating Section 8(b)(1)(A) and Section
8(b)(7)(C) of the National Labor Relations Act.
On the entire record,2 including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, Respondent Unions,
and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a West Virginia corporation, prospects
and develops coal mine property, and repairs and trans-
ports coal mining equipment from its facility in Winifred,
West Virginia, where it annually performs services
valued over $50,000 to users that ship coal valued over
$50,000 directly outside the State. I find that the Compa-
ny is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that
each of the Respondent Unions is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Picket Line Violence
About 1978, when Fletcher Mining Company last
worked under United Mine Workers' National Bitumi-
nous Coal Wage Agreement, the Company was a con-
tract miner for Bethlehem Mines Corporation. Since
then, the Company has worked nonunion, prospecting
and developing coal mine property, and repairing and
transporting surface mine equipment.
In 1982 the Company leased mineral rights at Howell
Hollow in the Kayford region of Cabin Creek, a
staunchly union area where hundreds of laid-off UMW
members were on recall panels. In October or Novem-
ber, it began prospecting and developing the property
for strip mining about a mile from where it previously
employed UMW members under the wage agreement.
I All dates are in 1983 unless otherwise indicated.
2 By agreement of the parties, G.C. Exhs. 8C and IIA, B, and C and
It. Exhs. IA, B, C, and D are received in evidence.
20
MINE WORKERS (FLETCHER MINING)
In January Virgil Bach Jr., a UMW member who had
been laid off since November 1981, telephoned Company
President Herman Fletcher. As Fletcher testified, Bach
"asked me when I was going to start up there; was I
going to hire the former employees of Bethlehem Mines;
did I have to hire the former employees of Bethlehem
Mines [on the recall panels]; when would I be hauling
coal; what I was doing up there."
The Company was making road repairs, installing
drainage, and proving out the coal reserves and mining
conditions. As President Fletcher testified, "We're up
there just trying to get this job ready. I don't have the
surface mine equipment to do the job with, and if I have
to go out here and buy all this equipment, I don't know
whether I can raise the money." The Company was
underfinanced even for doing this work. Ray Adkinson,
one of the six employees, revealed at the trial, "I was
paid once or twice, during the time I was working";
Fletcher had "told us he didn't have the money until we
got the job started." Fletcher denied that he had had any
intention of mining the property himself, but testified the
thought had crossed his mind that if he did not get the
price he was asking "from a surface mining contractor
that had the equipment and expertise to do it, that I
would take the job on." His prospecting permit permit-
ted him to remove only 250 tons of coal from the prop-
erty.
On April 14, despite the lack of proper strip-mining
equipment, the Company began mining coal-in viola-
tion of state law for mining without the required permit.
On April 14, 15, and 18, admitted agents of some of
the Respondent Unions talked to President Fletcher and
his employees about working under a UMW wage agree-
ment. Recognizing the Company's inability to pay the
union wages and benefits without the proper surface
mining equipment, all the employees opposed joining the
UMW, and Fletcher refused to bargain without an elec-
tion. The UMW had decided not to go to the expense of
an election campaign. (There were about 20 nonunion
mines in District 17.)
On Monday, April 25, violent mass picketing began.
As the week progressed, the number of pickets increased
from about 15 to about 30. Unemployed UMW member
Bach led the picketing. Others identified on the picket
line that week were UMW members Clifford Cline, Earl
Stanley Jr. and Sr., and Bruce Buzzard. The remaining
pickets-most of them wearing masks-were not identi-
fied.
The pickets blocked the entrance Monday and Tues-
day of that week, and again Wednesday despite a state
court injunction issued Tuesday against blocking or ob-
structing the entrance, and against committing or threat-
ening violence. On Thursday, when President Fletcher
and three others pressed through the picket line in a
truck, the pickets hit the truck with rocks, breaking the
windshield and door windows (a piece of glass getting
into Fletcher's eye), flattening two tires with nails, and
doing about $800 worth of damage to the truck. On
Friday, state police opened the way. After the police
left, however, some of the 30 or so pickets entered the
property; burned a supply shed built on the bed of a
dump truck; broke out the headlights and windows of
another dump truck; damaged an end loader (breaking
out the windshield, tearing out the radiator, and cutting
wiring, hoses, and belts); damaged gauges, wiring, and
batteries on an air compressor; and did other damage, to-
taling an estimated $5000 or $6000.
On that Monday and Wednesday, pickets threatened
the Company's employees with no nonunion work on the
property, and on Monday, Tuesday, and Wednesday,
said they knew where various employees lived, implying
harm to the employees at home. On Monday, one of the
pickets knocked a camera from President Fletcher's
hand, damaging it. Bach repeatedly asked Fletcher to
sign a union contract.
There was peaceful picketing the following week until
the Company ceased mining, after removing a total of
2448 tons of coal from the property. The Company was
cited with violating WV Code 20-6-8F for removing
more than 250 tons (under the prospecting permit), and
ordered to "Immediately cease coal removal and begin
reclaiming all disturbed areas. This includes backfilling;
grading; and vegetation." (R.D. Exh. 1.)
B. Responsibility of Respondent Unions
1. Allegations and contentions
The complaint alleges that UMW member Bach was
an "International Organizer" and that he and pickets
Cline, Stanley, and Buzzard were agents of Respondent
Unions.
The General Counsel failed to produce any evidence
that Bach was an International organizer, that any of the
Respondent Unions either authorized or paid for his or-
ganizing efforts, or that any of them authorized or en-
couraged the picketing, or established or maintained the
picket line.
The General Counsel contends, however, that the co-
ercive picketing was "in the context of . . . concerted
activity involving every level of the Mine Workers' or-
ganization to bring about the common objective of a col-
lective-bargaining agreement with Fletcher Mining," and
that "the only possible logical conclusion is that each of
the Respondents are jointly responsible for the totality of
their acts and conduct." The General Counsel also con-
tends that there was sufficient "adoption and ratification
of Bach's conduct" to constitute him "an agent of at
least the District which was . . . responsible for signing
up coal operators" for the International, and that this
was "sufficient to charge the District and the Interna-
tional with responsibility for his conduct and knowledge
of other conduct on the picket line."
The Company contends that each of the Respondent
Unions "either engaged in the illegal activity, by playing
a part in the coordinated effort" or "subsequently ratified
the illegal conduct."
2. Respondent Unions' organizing activity
In January Donald Barnett, the International's organiz-
ing coordinator in the Southeast Region, assigned one of
his two organizers in District 17 to check on the Compa-
ny's nonunion operation. He decided not to engage in an
organizing and election campaign.
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the first 3 working days after the Company
began mining coal on April 14, several union officials re-
quested President Fletcher to sign the UMW wage
agreement.
On April 14, District 17 Vice President Howard
Green went to the property and talked to Fletcher about
signing the agreement. Fletcher refused without an elec-
tion. On April 15, Local 1582 Vice President Jerry
Kerns went to observe the operation and Fletcher invit-
ed him to talk to his employees. Kerns left when the em-
ployees said they did not want to belong to the UMW.
On April 14 or 15, District 17 President Raymond
Thompson sent a request for a meeting with Fletcher
through Local 750 President Thomas Workman, who
lived near the property. On April 15, Fletcher met with
Thompson and District 17 Executive Board Member
Robert Phalen in Thompson's office. Fletcher refused to
sign an agreement unless his men voted for the Union,
and invited the union officials to talk to his employees.
On April 18, Thompson and Phalen, together with Dis-
trict 17 Vice President Green, went to the property and
talked to the employees, with Fletcher present. The con-
sensus was that the men did not want to be members of
the Union.
The evidence does not disclose that the union officials
initiated any further efforts to persuade the Company to
sign the wage agreement. As indicated above, neither
does the evidence disclose that any of the Respondent
Unions authorized or encouraged the picketing that
began April 25.
3. Asserted ratification of misconduct
On April 25, the first day of the picket line violence,
the Company sought a state court injunction against
pickets Bach, Stanley, and, by mistake, District 17 Exec-
utive Board Member Phalen. A District 17 staff attorney
appeared at the hearing the next morning, representing
Phalen and the two UMW members. (The staff counsel
regularly represents individual UMW members.) The in-
junction was issued against Bach and Stanley, but not
Phalen. After the hearing, Phalen talked to Bach about
the picketing, telling him, "I don't know who's on the
picket line up there, and I don't want to know, but I'll
tell you this . . . Judge Hey's already said there better
not be no violence up there," and if there is, "Judge
Hey's going to come down pretty hard."
On April 28, Phalen received a call from picket Bach,
who told Phalen that, as far as he could see, there was
no violence on the picket line. Bach also said that he had
had a conversation with President Fletcher, who wanted
to meet at the District 17 office that afternoon concern-
ing signing a contract. Phalen agreed to meet, but
Fletcher did not appear.
On Friday evening, April 29, President Fletcher tele-
phoned Phalen at his horne. Fletcher blamed the UMW
for what had happened to his property, and Phalen
stated that that was "absolutely false" and that the Union
had nothing to do with it. Fletcher threatened "to go
down and burn the District 17 office . . . with all the
people in it." After a heated conversation, Fletcher asked
for a meeting. Phalen said, "Now, if you want to talk
. . .in a right manner, I'll be glad to talk to you. But
you talking like this, I'm not talking to you." The next
morning, Fletcher told his employees that there was a
meeting at the union hall to see if they could work some-
thing out with the Union, and invited the employees to
go with him.
In the unsuccessful April 30 bargaining session, there
were three District 17 officials and one International offi-
cial. They were District President Thompson, Vice
President Green, and Executive Board Member Phalen
and International Organizing Coordinator Barnett. They
met with Company President Fletcher and three employ-
ees, Delbert Curry, Ron Javins, and Melvin Pilbeam.
They discussed royalty payments, pension funds, the
waiving of union dues for 4 months, mining conditions,
the cost sheet that Fletcher and his employees had pre-
pared the evening before, and whether the Company
could afford operating under the UMW wage agreement.
When a vote was mentioned, as employee Curry re-
called, Barnett stated they never intended to have an
election or to organize that area. When Fletcher com-
plained about pickets on his property, as Thompson cre-
dibly testified, "We told him definitely that the District
and International were not on an organizing drive,"
"[wle were not participating in it," and that "he asked
for this meeting, we come to it on his request."
President Fletcher claimed at one point in the meeting
that in his April 15 conference with District 17 officials
Thompson and Phalen, Thompson made a statement that
if Fletcher would sign a contract, Thompson would give
him "protection." Thompson vigorously protested. As he
credibly testified, "I told him no way did I tell him that
I'd give any man protection. I made a statement that I
would only give security to . . . his employees." Phalen
also protested: "No, sir, that wasn't what was said. The
word 'protection' was never mentioned." Phalen recalled
that Thompson had stated, as benefits of a union agree-
ment, "a stable work force and job security."
Fletcher did not deny Thompson's and Phalen's testi-
mony that at this April 30 meeting they disputed his
claim that Thompson had used the word "protection" in
their April 15 conference. (Fletcher claimed in his earlier
testimony at the trial that on April 15 Thompson "said
they didn't want no trouble up there," and that when he
asked Thompson what they offered the Company if he
signed the contract, Thompson said, "I'll provide you
with protection.") According to Fletcher, Thompson
said at the April 30 meeting "he would like for me to
sign the contract and not have any more trouble up
there." He also claimed that when he asked "if I signed
the contract, what would he do for me?" Phalen "said he
would provide me security .... Call the pickets off
. . .stop the picketing," and "would send the word up
Cabin Creek that I'd signed the contract that afternoon."
I find this testimony, as well as that of employee Pil-
beam on the subject, is largely fabricated. (By their de-
meanor on the stand when testifying about the April 30
meeting, both Fletcher and Pilbeam appeared less than
candid.) No other witness corroborated the claim that
Thompson mentioned avoiding "any more trouble up
there." Employee Curry (who impressed me as being an
honest, forthright witness) recalled Phalen's using the
22
MINE WORKERS (FLETCHER MINING)
words "stable work force, security and no picketing."
(Of course, there would be no picketing if Fletcher or
anybody else notified the unemployed pickets that
Fletcher had signed the UMW wage agreement. Curry
also recalled that the words "stable work force and secu-
rity" were used when Thompson, Green, and Phalen vis-
ited the jobsite April 18.)
Thompson (who also appeared to be a trustworthy
witness) credibly testified that he referred to "security
for [Fletcher's] employees" at both the April 15 and 30
meetings, telling Fletcher, "I thought he ought to
become signatory to the contract so that the people up
there would have security on that property." He credi-
bly denied making any statements about signing a con-
tract to end trouble, or connecting the trouble at the
Company with signing the contract. Phalen recalled
using the words "stable work force and job security"
and credibly denied making any statements regarding
sending word that the pickets would be called off, or
anything of that nature.
I therefore find that the credible evidence fails to sup-
port the allegation in the complaint that on April 15
Thompson impliedly threatened to cause the Company
trouble if it refused to cede to the demands that it exe-
cute a collective-bargaining agreement.
4. Concluding findings
It is clear that none of the Respondent Unions acted
illegally during the first 3 w\orking days after surface
mining began on the site April 14. Union officials con-
tacted Company President Fletcher and the employees,
seeking support by the employees and requesting Fletch-
er to sign the UMW wage agreement. When these efforts
failed, the union officials ceased the organizing efforts.
The evidence does not disclose that they initiated any
further efforts to persuade the Company to sign the
wage agreement.
The real question in this proceeding is whether any of
the Respondent Unions were responsible for the mass
picketing and violence during the week of April 25-29
when unemployed union miners blocked the entrance,
made threats, and destroyed company property.
The recent decision in Feather v. Mine Workers, 711
F.2d 530, 539 (3d Cir. 1983), gives the well-established
legal standard for determining responsibility.
To be held liable for the actions of individuals, a
union must be shown to have "instigated, support-
ed, ratified or encouraged" the particular activities
in question [citing Kerry Coal Co. v. Mine Workers,
637 F.2d 957, 963 (3d Cir. 1981), cert. denied 454
U.S. 823 (1981), and Carbon Fuel Co. v. Mine Work-
ers, 444 U.S. 212 (1979)] .... In addition, when
damages are claimed against an international union,
a district, and a local, the plaintiff must make a sep-
arate showing of agency for each defendant.
In the absence of evidence that the Respondent Unions
"instigated, supported ... or encouraged" the violent
picketing, the issue is whether any of them "ratified" the
picketing.
International. It is clear that the participation of Inter-
national Organizing Coordinator Barnett in the April 30
bargaining session did not constitute ratification of the
unlawful picketing. The meeting was initiated by Compa-
ny President Fletcher, not by any of the Respondent
Unions. The International's participation in or responsi-
bility for the picketing was disavowed during the meet-
ing. Barnett emphasized that the International was not
organizing or carrying on an election campaign in the
area. I find that the International did not ratify the pick-
ets' unlawful conduct.
District 17. District Executive Board Member Phalen
disavowed the District's responsibility for the picket line
conduct both on Friday evening, April 29, when Fletch-
er requested the April 30 meeting, and during the April
30 meeting. I find that the District did not ratify the
picketing misconduct by (a) the District officials partici-
pating in this bargaining session with Fletcher at
Fletcher's request; (b) Phalen agreeing on April 28 to
meet with Fletcher when Fletcher made the request
through picket Bach; (c) the representation of two of the
UMW member pickets (as well as the erroneously
charged Phalen) by District staff counsel at the injunc-
tion hearing (in view of regular representation of individ-
ual UMW members by the staff counsel); and (d) Pha-
len's cautioning picket Bach after the hearing against any
violence on the picket line.
Local 750. Local 750 President Workman merely re-
layed District President Thompson's request for a meet-
ing with Fletcher. This occurred about 10 days before
the violent picketing began. There is no evidence that
the local ratified the picketing misconduct.
Local 1582. Local 1582 Vice President Kerns went to
the jobsite April 15 and talked to Fletcher and the em-
ployees about the UMW. There is no evidence that the
local ratified the strike misconduct that began April 25.
Local 6572. This is a small local, with about 100 em-
ployed members and about 150 or more members laid
off. William Cline, who lives near the Company's jobsite,
is paid $100 a month to serve as the Local 6572 presi-
dent. He has never done any organizing as the local's
president.
Cline passes the jobsite on the way to get drinking
water. On April 26, the second day of the strike, he saw
the laid-off UMW members on the picket line and joined
them in sympathy. The local did not learn of his involve-
ment until it received notice of the charge filed against
it.
Under the circumstances, I find that Cline joined the
pickets solely in his individual capacity and that Local
6572 did nothing to instigate, support, ratify, or encour-
age the violent picketing.
Accordingly, I find that none of the pickets were
agents of any of the Respondent Unions and that none of
the Respondent Unions were responsible for the unlawful
picketing that occurred from April 25 to 29. I therefore
find that the allegations in the complaint that the Re-
spondent Unions violated Section 8(b)(7)(C) and Section
8(b)(l)(A) must be dismissed.
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW ORDER
The Respondent Unions did not commit any unfair
labor practices affecting commerce within the meaning
of Section 8(b)(7)(C) and Section 8(b)(IXA) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed s
The complaint is dismissed.
I If no exceptions are filed a provided by Sec. 102.46 of the Board'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-
poens.
24