Mine Workers (New Beckley Mining)

National Labor Relations Board - Board Decisions

Aug 15, 1991

304 N.L.R.B. 71 (N.L.R.B. 1991)

71
304 NLRB No. 8
MINE WORKERS (NEW BECKLEY MINING)
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (150), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 The complaint also alleges that Respondent International was a participant
in the picketing. The only evidence implicating Respondent International in the
alleged unlawful picketing—the testimony of New Beckley Mining Corpora-
tion President Bill Little—was discredited by the judge. Accordingly, we af-
firm the judge’s dismissal of the complaint against Respondent International.
3 The General Counsel excepts to the judge’s finding that she moved to
strike ‘‘the name of Mahon Enterprises from the pleadings entirely.’’ We find
the exception to be well-taken. The record shows that her motion, which the
judge granted, referred to deleting references to Mahon only from par. 8 of
the complaint. Thus the judge incorrectly extrapolated that Mahon was oper-
ating the mine as an agent of New Beckley and that the ‘‘mass activity’’ was
against the alter ego of the struck company, New Beckley.
4 All dates are in 1989.
5 Although the judge found that the crowd ranged in size from 90 to 100
persons, the judge did not resolve the accuracy of other testimony that the
crowd ranged between 50 and 140 persons. For the purposes of this decision,
we find it unnecessary to further delimit the precise size of the crowd.
6 Although the judge referred to Darby as the owner, the record shows that
the motel was owned by a corporation of which his parents were the sole
shareholders. He worked there as general manager and also served as an offi-
cer in the corporation.
7 Although there is no evidence indicating that any of those in the mass
gathering were responsible for it, motel fire alarms were set off at 5 a.m.,
about the time police arrived at the scene.
8 Accord and Carter were standing together in the crowd surrounding Darby
and were about 6 feet away from him.
9 Michael Durham, District 29 executive board member, was also identified
as being present.
10 Neither Accord nor Carter disavowed the requests from the picketers that
Darby oust the striker replacements.
International Union, United Mine Workers of
America and District 29, United Mine Workers
of America and New Beckley Mining Corpora-
tion. Case 9–CC–1367(1–2)
August 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 30, 1989, Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondents filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The complaint alleges, inter alia, that Respondent
District 29 has violated Section 8(b)(4)(i) and (ii)(B) of
the Act,2 based on its alleged picketing of the Comfort
Inn with an object to force the motel to cease doing
business with labor supply contractor Mahon Enter-
prises, Inc. (Mahon) in order to force Mahon3 to cease
doing business with the Charging Party. The judge
found no violations. We reverse the judge’s decision as
to the 8(b)(4)(ii) issue and find a violation based on
the allegation, but we adopt his dismissal of the
8(b)(4)(i) allegation.
The Charging Party, New Beckley Mining Corpora-
tion, operates a mine in Glen Daniels, West Virginia.
Mine Workers Local 1895, the bargaining representa-
tive of the New Beckley Mining Corporation’s em-
ployees, struck the mine on January 23, 1989.4 In Feb-
ruary, New Beckley contracted with Mahon to provide
striker replacements. Amon Mahon, a principal of
Mahon, and the replacements checked into the Comfort
Inn in Beckley on February 19 to begin work in the
mine. Between 4 and 4:30 a.m. on February 22, an es-
timated crowd of 50 to 140 persons5 gathered in the
parking lot and surrounding areas of the motel. Many
of them wore handwritten tags bearing the name, ‘‘Ra-
leigh County Citizens Against Strike Breakers.’’ The
motel night auditor contacted the police and called the
motel manager, Michael Darby, at home to apprise him
of the situation.6 When Darby arrived at the motel at
approximately 4:50 a.m., he heard a few in the crowd
shouting, ‘‘How are you doing scabs,’’ or ‘‘why don’t
you go home.’’ Out of concern for other motel patrons,
Darby went outside to address the crowd, whose tone
he described as angry and frustrated.7
Darby explained that his grandfather retired from the
mines and that his father had started out there and he
understood what they were going through but that he
wanted the group to leave because they frightened
motel guests, many of whom were senior citizens. Spe-
cifically, Darby explained, ‘‘[T]hey look out the win-
dow and they see this crowd . . . . Then the fire
alarm systems goes [sic] off . . . and that just makes
it worse.’’ Either Everett Accord, president of District
29, or Joseph Carter, president of Local 1895,8 acting
as a spokesman for the crowd,9 then said, ‘‘Well, I
hope that wasn’t any of our people,’’ and stated that
they did not want to leave until they had a chance to
tell the striker replacements that they did not appre-
ciate their coming and taking their jobs. Darby ex-
plained that the Mahon employees had been instructed
not to come out and said he wanted a chance to talk
with the replacements to see what he could do. Several
persons in the crowd asked why he would rent to
scabs, adding, ‘‘Aren’t you going to get them to
leave?’’10 Another person stated, ‘‘Don’t you know
they shouldn’t be here?’’ Darby responded, ‘‘Look,
you know, I’ll talk to them. They won’t be here to-
night.’’ Either Accord or Carter then said, ‘‘Well give
us a minute to talk it over.’’ The crowd then opened
up to let Darby pass and a minute or two later began
to disperse. As Darby was talking with a newspaper
reporter, Accord and Carter approached him and Ac-
cord introduced himself as president of District 29 and
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Sec. 8(b)(4)(ii)(B) of the Act makes it unlawful, for a labor organization
or its agents to threaten, coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where an object thereof is forcing or
requiring any person to cease doing business with any other person.
12 That case defines the purpose of picketing broadly to include conveying
a message usually intended to influence the conduct of certain persons to stay
away from work or to boycott a product or business.
13 Even were we to conclude that the mass activity did not constitute pick-
eting, we would nevertheless find the statements made by the crowd unlawful.
See fn. 15, infra.
introduced Carter as being with the Local. Accord also
thanked Darby for his help.
Darby then went to Amon Mahon’s room and told
him he was concerned about his other guests, explain-
ing that the guests did not know what was going on
and that he ‘‘would really like for you fellows to
leave.’’ Darby asked Mahon to ‘‘help [him] out’’ and
said, ‘‘If you guys are here tonight, those fellows will
be back . . . . I can’t do anything to protect you.’’
Darby also told Mahon, ‘‘for your protection as well
as the protection of the guests, my property, you know,
I’d like for you to find someplace else to stay.’’ After
talking it over with his crew, Mahon called the desk
to tell Darby they were leaving. The two arranged to
have Mahon’s credit card receipt mailed to him.
Mahon did not want to risk going to the office to sign
it because some members of the crowd were still cir-
cling the lot. Later that morning, the local police pro-
vided Mahon and his employees with a police escort
some 200 yards to an interstate highway.
On the basis of the foregoing, the judge found that
the mass action was aimed not at pressuring the Com-
fort Inn, but simply at communicating with the striker
replacements and that it made no difference to the
crowd where the striker replacements slept. He opined
that ‘‘with this . . . reality of what was going on,’’ it
was ‘‘immaterial whether or not the union, Local or
International, was responsible, or participated in the
mass action.’’ He concluded, however, that because
‘‘very few’’ of the crowd members were identified as
‘‘striking employees of New Beckley Mining . . . [i]t
would be difficult to find this was a ‘union’ activity.’’
We disagree on all accounts.
We find that the ‘‘mass activity,’’ as the judge char-
acterized it, not only was a ‘‘union activity’’ but that
it constituted a form of picketing, and that that pick-
eting had an object of forcing the Comfort Inn, a neu-
tral employer, to cease doing business with Mahon in
order to force Mahon to cease doing business with
New Beckley, thereby violating Section 8(b)(4)(ii)(B),
as alleged in the complaint.11
Although the number of participants in the mass ac-
tion who were union members is unknown, it is clear
that Accord was there in his official capacity as presi-
dent of District 29 and, at the least, endorsed the acts
of those present in the mass gathering, thus estab-
lishing an agency relationship between Respondent
District 29 and the other participants. See Service Em-
ployees Local 87 (West Bay Maintenance), 291 NLRB
82 (1988). Accordingly, we find no merit to the
judge’s conclusion that ‘‘[i]t would be difficult to find
this was a ‘union’ activity.’’ Further, the finding that
such union activity amounted to picketing is warranted
despite the absence of picket signs.
Picket signs or placards, while serving as indicia of
picketing, are in no sense essential elements for a find-
ing that picketing occurred. See, e.g., Laborers Local
389 (Calcon Construction), 287 NLRB 570, 573
(1987), quoting from Mine Workers District 12 (Truax-
Traer Coal), 177 NLRB 213, 218 (1969).12 Here, the
finding that the ‘‘mass activity’’ was picketing is es-
tablished by other elements usually found in picketing.
Thus, the crowd of anywhere from 50 to 140 people
congregated at the inn in protest of New Beckley’s use
of Mahon’s employees as strikebreakers, representa-
tives from District 29 and Local 1895 were present,
and one of them, in the presence of the other, acted
as a spokesman for the massed assemblage with
Darby, the inn’s manager. Clearly, then, the activity in
question was related to and in furtherance of the labor
dispute between the Respondent and New Beckley and
its ally, Mahon. In addition, the crowd’s large size and
its participants milling about in the inn’s parking lot
while shouting, ‘‘How you doing scabs’’ and ‘‘why
don’t you go home,’’ had all the attributes of mass
picketing, attributes that in this case were accentuated
by the timing of the crowd’s arrival at the inn in the
predawn, when the latter’s guests likely were sleeping
and the general public was not astir. These cir-
cumstances militate against a finding that the activity
amounted to something less than picketing, such as a
public demonstration by a group of citizens who sym-
pathized with the striking New Beckley employees. In-
deed, that the crowd’s shouted messages were directed
only at the presence of the Mahon employees and their
removal from the inn is itself evidence that the crowd
was engaged in picketing.13
It is apparent from the judge’s decision, however,
that even if he had found that the demonstration con-
stituted union activity and picketing, he nevertheless
would still have dismissed the complaint. The judge
found that the ‘‘mass activity’’ simply was ‘‘to get a
message to the strike breakers to stop performing the
work’’ that ‘‘belonged to the [striking employees of]
New Beckley Mining.’’ Had that been the sole object,
we would find merit to the judge’s finding. However,
we find that there is evidence that the picketing had
a further object, specifically, to have the inn oust the
Mahon employees as its guests. Consequently, that a
purpose of the picketing may have been to convey a
message to the strike replacements does not remove
the pickets’ conduct from the reach of Section 8(b)(4).
73MINE WORKERS (NEW BECKLEY MINING)
14 92 NLRB 547 (1950). Nor did the shouted statements of the pickets and
the statements of Accord and Carter identifying Mahon as their target over-
come this failure of compliance. See Hotel & Restaurant Employees Local 36
(Holiday Inn Downtown), 216 NLRB 980, 984 (1975), enfd. mem. 539 F.2d
706 (4th Cir. 1976). Moreover, as found infra, statements by the pickets en-
meshed the inn, as a neutral person. Id. at 984.
15 The statements of the pickets to Darby seeking the removal of Mahon
employees from the inn also support this finding. Electrical Workers IBEW
Local 11 (L.G. Electric), 154 NLRB 766, 768 (1965). Moreover, even if the
‘‘mass activity’’ did not constitute picketing, we would find those statements
threatening and coercive of Darby and hence in violation of Sec. 8(b)(4)(ii)(B)
because Respondent District 29 adopted them as its own, as described above.
In this regard, the Supreme Court’s decision in NLRB v. Servette, 377 U.S.
46, 52–54 (1964), makes clear that subsec. (ii) of 8(b)(4) condemns attempts
to induce the exercise of a manager’s discretion to cease doing business with
the primary employer if the inducement would ‘‘threaten, coerce, or restrain’’
that exercise. See also Los Angeles Building Trades Council (Sierra South),
215 NLRB 288, 290 fn. 4 (1974).
16 Sec. 8(b)(4)(i)(B) of the Act makes it unlawful, among other things, for
a labor organization or its agents to induce or encourage any individual em-
ployed by any person engaged in commerce or in any industry affecting com-
merce to engage in a refusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services where an object thereof
is forcing or requiring any person to cease doing business with any other per-
son.
It is well settled that picketing (or other coercive
conduct) violates Section 8(b)(4) if the object of it is
to exert improper influence on a neutral party. NLRB
v. Denver Building Trades Council, 341 U.S. 675, 689
(1951), Electrical Workers IBEW Local 501 v. NLRB,
756 F.2d 888, 892–893 (D.C. Cir. 1985). Although our
inquiry must be based on the intent, rather than on the
effects of the union’s conduct, International Rice Mill-
ing Co. v. NLRB, 341 U.S. 665, 672 (1951), the
union’s intent is measured as much by the necessary
and foreseeable consequences of its conduct as by its
stated objective. Longshoreman ILA Local 799 (Allied
International), 257 NLRB 1075 (1981). Thus we look
to the ‘‘totality of the circumstances’’ to determine
whether the union’s conduct demonstrates an unlawful
purpose. Electrical Workers IBEW Local 501, supra at
893.
In the instant case, the circumstances lead us to find
that the picketing had an unlawful object. The mass
picketing began before dawn on the inn’s premises.
There was no forewarning to the inn that it would
occur and no attempt to inform the inn that it was not
going to be the subject of the picketing. See Mis-
sissippi Gulf Coast Building Trades Council, 222
NLRB 649, 650 (1976), enfd. mem. 542 F.2d 573 (5th
Cir. 1976). So far as the inn knew, when the picketing
commenced, it was directed at the inn and all its
guests, not just Mahon’s employees. No picket signs
were displayed or in evidence that would have identi-
fied the nature of the dispute that led to the picketing
or the party with whom there was a dispute. The
Board has long held that in a common situs situation
the failure of a picketing union to comply with any
one of the Moore Dry Dock Co.14 criteria gives rise
to a strong, albeit rebuttable, presumption that the
picketing had an unlawful secondary object. Iron
Workers Local 433 (United Steel), 293 NLRB 621
(1989); Service Employees Local 87 (Pacific Tele-
phone), 279 NLRB 168, 175 (1986); Electrical Work-
ers IBEW Local 332 (W.S.B. Electric), 269 NLRB 417,
421 (1984); and Salem Building Trades Council (Cas-
cade Employers), 163 NLRB 33, 35 (1967), enfd.
mem. 388 F.2d 987 (9th Cir. 1968).
Further, we find that, far from simply wanting to
talk with Mahon employees, the pickets sought their
removal from the establishment. The judge’s analysis
ignores undisputed facts that even as Accord or Carter
was telling Darby that the people would not depart
until they had a chance to tell the strike replacements
that they did not appreciate their coming and taking
their jobs, pickets asked Darby to get the replacements
to leave or declared to him that they should not be
staying at the inn. Accord and Carter did not disavow
these statements by the pickets. Moreover, the pickets
did not begin to disperse until Darby assured them that
the Mahon employees would not be at the inn that
night—a fact that strongly suggests that the pickets
were more interested in the departure of those employ-
ees from the inn than in pleading their case to them.
In any event, as the pickets began to disperse, Accord
and Carter introduced themselves to Darby in their of-
ficial capacities and thanked him for his help. We
therefore find that these union representatives con-
doned and adopted the comments and objectives of the
pickets as their own. See Boilermakers Local 1 (Union
Oil), 297 NLRB 524 (1989) (a union is responsible for
picketing misconduct at the scene if it does nothing to
disavow it).
Accordingly, having found that Respondent District
29 engaged in picketing with an unlawful secondary
object, we find that it threatened, restrained, and co-
erced the Comfort Inn within the meaning of Section
8(b)(4)(ii)(B) of the Act.15 Service Employees Local 87
(Pacific Telephone), supra; Salem Building Trades
Council (Cascade Employers), supra.
Notwithstanding that finding, we affirm the judge’s
dismissal of allegations that the Respondent by the
above conduct also violated Section 8(b)(4)(i)(B) of
the Act.16 In the circumstances of this case, although
it is fully apparent that the Respondent was engaged
in conduct directed at the Comfort Inn as a neutral em-
ployer, the record is decidedly more ambiguous as to
whether this activity was likewise directed at any indi-
vidual employed by the neutral employer. Although it
was likely that the Comfort Inn would have someone
present at all times to assist its guests there is no indi-
cation that the Respondent or anyone in the crowd that
assembled outside the motel at about 4 a.m. on Feb-
ruary 22 made any attempt to initiate any specific
communication with anyone employed by the motel,
nor was any statement made by persons in the crowd
directed generally to anyone other than those at the
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Although it is not determinative of the object of the Respondent’s con-
duct, we observe that the only action the presence and activity of the crowd
that night induced the night auditor to do was to call the motel manager and
the local police.
18 Cf. NLRB v. Servette, supra at 49–50, holding that a manager is included
within the meaning of Sec. 8(b)(4)(i)(B) of the Act to the extent that manager
is an ‘‘individual employed by any person engaged in commerce or in an in-
dustry affecting commerce.’’
19 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
motel who were employed by the labor supply con-
tractor, Mahon Enterprises, Inc. Specifically, we note
that the only individual employed by the Comfort Inn
who was initially present was the night auditor (Leona
McKinney, mistakenly referred to by the judge as the
‘‘night man’’), and there is no indication that she had
any contact with the Respondent or any members of
the crowd. Even assuming that the Respondent had
some basis for being on notice that the night auditor
was present at the motel, there is insufficient basis to
find that the actions of those in the crowd were di-
rected at inducing or encouraging her to engage in any
refusal to work.17 Moreover, on the arrival of Motel
Manager Darby, and in his discussion with the Re-
spondent as to the nature of the problem, there never
was any attempt made to have him engage in any re-
fusal to work for his employer.18 Accordingly, we af-
firm the judge’s decision to dismiss the 8(b)(4)(i)(B)
allegations in the complaint.
CONCLUSIONS OF LAW
1. The Respondent, District 29, United Mine Work-
ers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Laurel Lodge Enterprises, Inc., d/b/a Comfort Inn,
Beckley, West Virginia, is a person engaged in com-
merce and is an industry affecting commerce within
the meaning of Section 2(6) and (7) and Section
8(b)(4) of the Act.
3. The Charging Party, New Beckley Mining Cor-
poration, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
4. The Respondent, District 29, United Mine Work-
ers of America, has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(ii)(B) of the
Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
The Respondent, District 29, United Mine Workers
of America, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening, coercing, or restraining any person
engaged in commerce, where an object thereof is to
force or require the Comfort Inn or any other person
to cease doing business with Mahon Enterprises, Inc.
or New Beckley Mining Corporation.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post in conspicuous places at its business office,
and meeting halls within its geographical jurisdiction,
copies of the attached notice marked ‘‘Appendix.’’19
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being duly signed
on behalf of Respondent District 29 by its authorized
representatives, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicious places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Sign and mail sufficient copies of the notice to
the Regional Director for posting by New Beckley
Mining Corporation and the Comfort Inn, Beckley,
West Virginia, those companies being willing, at all lo-
cations where notices to employees are customarily
posted.
(c) Notify the Regional Director in writing within 20
days from the date of receipt of this Order what steps
Respondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce any person engaged
in commerce or in an industry affecting commerce,
where an object thereof is to force or require the Com-
fort Inn or any other person to cease doing business
with Mahon Enterprises, Inc. or New Beckley Mining
Corporation.
75MINE WORKERS (NEW BECKLEY MINING)
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
DISTRICT 29, UNITED MINE WORKERS
OF AMERICA
Deborah Grayson, Esq., for the General Counsel.
James W. McNeely, Esq., of Beckley, West Virginia, and
George N. Davies, Esq., of Washington, D.C., for the Re-
spondents.
Forrest H. Roles, Esq. (Smith, Heenan & Althen), of Charles-
ton, West Virginia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge. A hearing
in this proceeding was held at Beckley, West Virginia, on
May 16 and July 11, 1989, in complaint of the General
Counsel against the International Union, United Mine Work-
ers of America, and against District 29, United Mine Work-
ers Union (the Respondents). The complaint issued on April
7, 1989, on charges filed by New Beckley Mining Corpora-
tion (the Charging Party) on February 24, 1989. The sole
issue presented is whether the two Respondents violated Sec-
tion 8(b)(4) of the Act by bringing pressure on a company
called Comfort Inn for the purpose of causing it to cease
doing business with either another company called Mahon
Enterprises, Inc., or with a number of people who had rented
rooms in a motel run and operated by a company called
Comfort Inn. Briefs were filed by all three parties.
On the entire record and from my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
New Beckley Mining Corporation operates a coal mine in
the vicinity of Glen Daniels, West Virginia, where, during
the 12-month period preceding issuance of the complaint, it
sold and shipped from that mine goods and products valued
in excess of $50,000 to points outside the State of West Vir-
ginia.
Laurel Lodge Enterprises, Inc. is engaged in the operation
of a motel, furnishing food and lodging for guests in Beck-
ley, West Virginia. During the same 12-month period, it de-
rived gross revenues in excess of $500,000. Also during that
same period in the course of its business it purchased and
received at that location goods and materials valued in excess
of $5000 directly from out-of-state sources.
I find that both New Beckley Mining Corporation and
Laurel Lodge Enterprises, Inc. are employers within the
meaning of the statutes.
II. THE LABOR ORGANIZATIONS INVOLVED
I find that International Union, United Mine Workers of
America and its District 29 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The United Mine Workers of America, acting both through
its International Union and its District 29, has long rep-
resented the mining employees of New Beckley Mining Cor-
poration as bargaining agents. On January 23, 1989, the
Union called a strike at the Charging Party’s mine and all
employees ceased work. On about February 19 the mining
company contracted with an out-of-town company called
Mahon Enterprises, Inc., to obtain strike replacements.
Mahon is in the business of finding employees for any com-
pany that requires them. It found 16 persons and arranged for
them to sleep at the Comfort Inn while working for Beckley
Mining Co. The men checked in at the motel on the evening
of February 19, and worked at the mine during a 2-day pe-
riod, February 20 and 21.
The next day, at about 4 or 4:30 a.m., a crowd of people
gathered in the parking areas of the motel and just stood
around as a mass movement. The night man in charge of the
motel quickly called the owner, Michael Darby, on the tele-
phone and told him about the people gathered there. Darby
first telephoned the police to let them know about the crowd
and then quickly went to the motel. He was there in a matter
of minutes. He testified that he quickly understood what the
trouble was, that the people were protesting the fact the men
who are sleeping there were working across the picket lines
at the mine. Very politely Darby told them that while he
sympathized with their dilemma he wished they would leave
his premises. He no sooner told them that when they started
to leave. By 5:30 or 6 a.m. the whole crowd was gone.
In plain language this is a secondary boycott case; a viola-
tion of Section 8(b)(4) is alleged in the complaint. The
Union had no dispute with the owner of the motel, Comfort
Inn. The labor dispute was between New Beckley Mining
Enterprises and the Union. The allegation must be that the
Respondent labor organization put pressure on a secondary
employer to compel it to cease doing business with some
other company, or with somebody else. Mahon Enterprises is
the only ‘‘employer’’ other than New Beckley Mining and
Comfort Inn named in the complaint. As written, the com-
plaint clearly says the Union put pressure on the employees
of Comfort Inn in order to compel that company to cease
doing business with the company Mahon Enterprises, Inc.
There is a confusion in the General Counsel’s presentation
of the case. At the start of the hearing she struck the name
of Mahon Enterprises from the pleadings completely. I do
not really understand her explanation stated at that point in
the record. ‘‘The reason I am doing that is that it appears
through the pleading that Mahon is a neutral and we do not
allege Mahon to be a neutral. It’s a labor supplier and was
performing struck work.’’ As best I can understand this posi-
tion it is that the Union was putting pressure on the Mahon
Company to force it to cease doing business with New Beck-
ley Mining. If the strikebreaking employees, then at the
motel, were employees of the Mahon Company one could
say Mahon was operating the mine as an agent of New
Beckley Mining Company. Under this view of the case the
mass of people gathered there that morning were picketing
the operations of the mine by the alter-ego of the struck
Company.
In my considered judgment, and in the light of the record
testimony in its entirety I do not think resolution of such
confusing questions is necessary here. To me the essential
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel offered, as proof that the Union was responsible for
the entire mass activity, the testimony of strikebreaker Cooper that he saw
‘‘Jack Rocks’’ on the ground in the parking lot that day ‘‘No one else uses
them but the union.’’ I will not demean this decision with comments about
such testimony.
question is: What was the purpose of all those people gath-
ered in those private parking areas that morning? Were they
trying to interrupt the business being carried on between one
company and another, or were they simply trying to get a
message to the strikebreakers to stop performing the work
that, in the opinion of the demonstrators, rightfully belonged
to the people who are on strike against New Beckley Min-
ing?
It is clear to me, on this record, that the purpose of the
entire mass activity that morning, on the private parking lot
of Comfort Inn Motel, was to get a message to the 16 strike-
breakers who were there that they should cease working
across the Union’s picket line at the mine. And the deciding
testimony is that of Michael Darby, the owner of the motel.
He spoke for the one ‘‘business’’ which could be called neu-
tral here. He did not file the charge in this case—a clear in-
dication that he did not consider the mass activity—even if
the Union was responsible for it—as directed against him, or
his commercial operation. The charge was filed instead by
the struck mining Company!
From Darby’s opening testimony describing the scene as
soon as he arrived at the motel:
A. Well, I heard a couple of men say-like, how are
you doing, scabs, or why don’t you go home. Some-
thing like that. And then when I came out I went out
into the west parking lot there, just kind of in the mid-
dle of where everybody was. And I said—introduced
myself. I’m Mike Darby, I’m the manager here, and
could I just talk to you fellows for a minute. And I
said, you know, I understand your position. My grand-
father retired from the mines and my dad started out in
the mines and, you know, I understand a little of what
you’re going through. But, you know, my concern, I
want you to consider the other guests here. A lot of
them are senior citizens and they just don’t understand
what is going on here . . . and I said, well, anyway,
they are afraid, and, you know, why don’t you leave
and just give me a chance to see what is going on. You
know, to see what I can do here. And they said they
didn’t want to leave until they got a chance to talk to
the—to these guys. That they just wanted to let them
know that they didn’t appreciate them coming taking
their jobs and that’s why they had come.
Q. Now, who said that?
A. Mr. Carter or Mr. Accord. . . . So, why don’t
you just leave and give me a chance to see what I can
do, to talk to them and—and go. . . .
Q. So, after you said you would ask them to leave,
what happened after that?
A. Well, then again, I don’t know whether it was
Mr. Carter or Mr. Accord, said, Well, give us a minute
to talk it over. And then they kind of opened up and
let me out. And I walked over to one of the police
cruisers and said, I think maybe they’re going to go.
Well, just within a minute they did, you know start
going to their vehicles and leaving.
This was the General Counsel’s principal witness in sup-
port of the complaint. What clearer proof can there be that
the purpose of the mass action by all those people was sim-
ply to communicate with the strikebreakers exactly as do all
picket lines? It made no difference to them where the strike-
breakers slept. That was of no concern to them.
When the strikebreakers registered at the motel on Feb-
ruary 19, they made clear, as the registration slips show, that
they planned to leave on the February 22. This very fact be-
lies the General Counsel’s contention that the purpose of the
demonstration was to get those people to leave the motel.
When Darby, the motel owner, brought to their attention that
the activities at that location might embarrass other tenants
of the motel, quickly they all went away. Again, clear proof
that the idea of pressuring, or annoying the motel owner, had
never entered the minds of all these people.
Darby’s testimony continues. When one of the strike-
breakers asked him why all this was going on, ‘‘Are you
kicking us out?’’ Darby’s answer was: ‘‘No. You know, I
wouldn’t insult you by coming here and telling you I was
going to kick you guys out. But I’m just telling you what
my concerns are I’m asking you to help me out. You know,
if you can, help me out. I said, you know, if you guys are
here tonight, those fellows will be back. You know, I can’t—
I can’t do anything to protect you.’’
There is not the least indication in the entire record of any
act of violence or force by any of the many demonstrators.
The complaint allegation that the union officials and others
‘‘threatened Comfort Inn and Mahon with violence’’ is com-
pletely unsupported. Darby said he felt ‘‘apprehensive’’ only
because the police, before they got there, warned him to be
careful.
Later that day, an article appeared in the local newspaper
quoting Darby as having ordered the strikebreakers out of his
motel. Such a report would fit nicely into the General Coun-
sel’s theory of pressure on the neutral employer to cease
doing business with his customers—in the language of the
statute. When Darby saw that item in the paper he imme-
diately called the publishers and told them that he had been
misquoted. The very next day that same newspaper corrected
its error and made clear Darby had not reacted to the dem-
onstrators by telling anyone to leave the premises. In short,
there was not pressure on him, or on anyone connected with
his business.
With this the reality of what was going on, it becomes im-
material whether or not the Union, Local, or International,
was responsible, or participated in the mass action. Everett
Accord and McCarter, union agents, were present in the
crowd. Walter Cooper, one of the strikebreakers, even testi-
fied that ‘‘He [Accord] came walking through the breezeway.
He was trying to quiet some of the guys down that was
yelling the gestures. He told them to hold it down.’’ In the
crowd of 90 or 100 people, very few striking employees of
New Beckley Mining were identified. There were a number
of women and old men in the crowd. It would be difficult
to find this was a ‘‘union’’ activity. But, as I said, even if
it were so found, the purpose, and the activity that took place
have not been proved to have been a violation of Section
8(b)(4) of the Act.1
There were 9 or 10 policemen about the premises, each in
a car. A police chief, then present, testified, but all he said
77MINE WORKERS (NEW BECKLEY MINING)
2 If no exceptions are filed as 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 objec-
tions to them shall be deemed waived for all purposes.
3 Dismissal here is completely consistent with the position the Union took
on the very same day it filed its charge, which is the basis of this proceeding.
On February 24, 1989, it filed a charge with the Board’s Regional Office—
Case 9–CB–7223—explicitly saying:
On Wednesday, February 22, 1989, Respondent, acting through Inter-
national Union agents, massed individuals in such numbers on behalf
of the Respondent as to intimidate a small group of employees present
in a hotel in Beckley, West Virginia, in an effort designed to intimidate
them from exercising their Section 7 rights to work and assist the Re-
spondent [sic] in its it labor dispute with New Beckley Mining Corp.
The Respondent and its agents gathered in masses of over 100 at ap-
proximately 3:00 a.m., in a successful effort to intimidate a labor con-
tractor performing work at New Beckley Mining Company to cease
working.
I cannot imagine a better support for my decision in this case.
is that policemen just sat in there cars and took no action.
He also made clear that none of the strikebreakers left the
motel until after all the demonstrators were gone! If there is
any doubt as to the correctness of my decision to dismiss this
complaint, it is completely removed by Darby’s closing testi-
mony.
Q. Mr. Darby, did any person in the group in the
parking initiate contact with you?
A. No.
. . . .
Q. Do you have any information that they initiated
any contact with you employees?
A. No, I don’t.
. . . .
Q. Why do you believe, what opinion do you—or do
you have any opinion as to why they gathered in your
parking lot?
A. Well, my opinion is that they gathered there, like
they said, to let the guys no [sic] they weren’t happy
with them coming, trying to take their jobs away.
. . . .
Q. My question was, and I think you’ve answered it,
do you not just testify that your opinion is that they
gathered there to ask the replacement workers not to go
to work?
A. Right, not to work, not to be there, go back
home.
. . . .
Q. What did they—they asked you just that be able
to speak to the Mahon Enterprise employees?
A. Right.
Billy Little, president of New Beckley Mining Company,
who does the bargaining with the Union for its employees,
was asked by Marty Hudson, a negotiator for the United
Mine Workers, to meet and discuss the items that were still
in dispute. He went to Charleston, a distance from Beckley,
on February 22, where Hudson was carrying on negotiations
with another company. The two men spoke for some time
about the various subjects which had divided them in their
bargaining. Hudson was trying to reach an accord with the
company. They spoke for about an hour, and could not reach
agreement. In the course of their conversation, according to
Little’s testimony, Hudson spoke as follows: ‘‘Then he men-
tioned the—I’m not sure at this point whether he mentioned
the picket line at the mines or after, but he made mention
of the Comfort Inn, we surrounded the Comfort Inn this
morning. And that’s just an example of what we can and will
do.’’
Hudson also testified about the negotiation attempts he
made that day with Little, but said clearly there was no men-
tion whatever about what had taken place at the Comfort Inn
earlier that morning. Hudson lives far away from Charleston.
He said he left his home at 5:30 that morning to take a plane
to get there. I have no reason not to believe him. In the at-
tempt to reach an accord with the representative of this mine,
he would hardly have injected an acrimonious element in the
conversation. My finding is that there was no talk about the
New Beckley-Comfort Inn incident in the conversation Little
had with Hudson that day.
Of course, even where I to believe, which I do not, that
the United Mine Workers agent told Little his Union had
‘‘surrounded’’ the Comfort Inn, it would not alter the fact
that the object of the mass demonstration was not to put
pressure on the Comfort Inn company, but only to commu-
nicate with the strikebreakers, as do all pickets.
If the General Counsel can quote one newspaper article,
perhaps another can also be quoted. In its February 23 issue,
appears the following:
Accord said the assembly of UMW Miners was in-
tended only to demonstrate their displeasure with re-
placement workers, and to persuade them not to report
to work at the Glenn Daniel Mine.
‘‘We understood they had to be to work at 4:30 so we
came out to let them know we don’t appreciate them
being here.’’ the UMW official said. ‘‘Our families
need to feed their people. Theirs do, too, but we wanted
to let them know we don’t like the idea of them taking
our jobs.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
I recommend that the complaint be, and it is, dismissed in
its entirety.3