United Mine Workers of America

National Labor Relations Board - Board Decisions

Feb 7, 1969

174 N.L.R.B. 344 (N.L.R.B. 1969)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Mine Workers of America and United Mine
Workers of America, District No. 6 and Weirton
Construction Company. Cases 8-CB-1239 and
8-CP-69
February 7, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND-MEMBERS
BROWN AND JENKINS
On September 20, 1968 , Trial Examiner Jerry B.
Stone issued , his Decision in the above -entitled case,
finding that ', the Respondents had engaged in and
were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended , and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision . Thereafter, the Respondents filed
exceptions to the Trial Examiner ' s Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions and brief, and
the entire record in this case , and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner.
We agree with the Trial Examiner that
Respondents restrained , and coerced the employees
of Weirton Construction Company, in violation of
Section 8(b)(1)(A), by mass picketing and threats of
violence calculated to deny to nonstriking employees
the right to free access to the mining operations.
The 50-75 men whom the Respondents, through
their agent Vitter, assembled on Riddles Run Road
on the morning of February 5, 1968, apparently did
not physically bar the access roads to the mine site.
However, in our opinion, the presence of a large
group of men milling about on the road , without
identifying signs and possessed of a considerable
numerical advantage over the 15 Weirton employees
located at the mine site would tend, when taken
together with the remarks made by the pickets, to
chill the desire of employees to cross the picket line
and come to work. Moreover , it is apparent, from
their remarks to employee Mitchell and supervisor
Balletto, that Vitter and other pickets relied on the
threat of violence implicit in the number and
appearance of their group to give added impact to
their verbal warnings and threats.' As a result of
this unlawful conduct, Respondents succeeded in
bringing about the closing of the mining operations
on that day. Two other coercive confrontations,
intimately related to the events of February 5,
occurred between that date, when the mine was
closed, and February 17, when the mine was
reopened following issuance of a state court
injunction against the picketing. One of these
incidents involved overt interference by pickets with
an employee's attempts to enter the mining, area:
Mitchell, on February 16, was compelled to leave
his car on Riddles Run Road by a group of 20
pickets as a guarantee that he was entering the
mining area only to collect his paycheck and would
not remain there to perform any work.2 These
various circumstances, considered together, indicate
a pattern of coercive conduct on Respondents' part
which, we find, tended to, and was in fact designed
to, interfere with employees' exercise of their
Section 7 -rights to refrain from engaging in union
activity. Accordingly, we affirm the Trial
Examiner's Section 8(b)(1)(A) finding, as well as his
conclusion that Respondents violated Section
8(b)(7)(A) by engaging in improper recognitional
picketing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the
Respondents, United Mine Workers of America and
United Mine Workers of America, District 6, their
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Weirton
Construction Company by mass picketing conducted
in such a manner as to cause employees to fear
physical injury from entering or leaving working
areas.
(b) Picketing or causing to be picketed or
threatening to picket Weirton Construction
Company ' under conditions prohibited by Section
8(b)(7)(A) of the Act, where an object thereof is
forcing or requiring said employer to recognize or
bargain with them as the collective-bargaining
representative of its employees, or forcing or
requiring said employees to select or accept
Respondents as their collective-bargaining
representative during any period when Weirton is
'Thus, Vetter warned Balletto that a couple of people at a nearby mine
who had tried to "break" the picket line had been hurt and a few cars had
been damaged. While there is no evidence that Vitter's comment to
Balletto was heard by any rank and file employee, we think it is reasonable
to infer, given the small size of the operation and the above-noted
circumstances of the picketing, that Balletto could be reasonably expected
to convey the substance of the threat to the employees As employee
Mitchell was leaving the mining area after mining operations had ceased, a
picket came to his car and said "there wasn't any sense in coming back to
work the next day." A minute later, Vitter, called over to the car by the
picket, informed Mitchell that the "job wouldn't go" until the Independent
Union, representing the Weirton employees, was ousted
'Mitchell was also involved in the other incident On February 15, he
was warned by Vitter, whom he visited at the UMW office to inquire
about the duration of the strike, that the trouble at Weirton would
continue as long as the Independent continued to represent the employees
174 NLRB No. 52
UNITED MINE WORKERS OF AMERICA, DIST. NO. 6
recognizing another union as bargaining
representative of such employees and a question
concerning representation may not appropriately be
raised.
(c) In any other manner interfering with,
restraining, or coercing employees of Weirton
Construction Company in the exercise of rights
guaranteed in Section 7 of the Act, as amended.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the Act:
(a) Post at their offices and meeting halls copies
of the attached notice marked "Appendix."3 Copies
of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by
their representatives, shall be posted by the
Respondents, immediately upon receipt thereof, and
be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Promptly after receipt of copies of the said
notice from the Regional Director, return to him
signed copies for posting by the Charging Party
(Weirton Construction Company) and the
Independent Strip & Coal Miners Union, if they be
willing, at all places in their respective offices where
notices to employees or members, as the case may
be, are customarily posted.
(c) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS OF
AMERICA AND OF UNITED MINE WORKERS OF AMERICA,
DISTRICT 6 AND WEIRTON CONSTRUCTION COMPANY
AND ITS EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify you that:
WE WILL NOT restrain or coerce the employees of
Weirton Construction Company by mass picketing
conducted in such a manner as to cause employees to
fear physical injury from entering or leaving working
areas.
WE WILL NOT in any other manner coerce or restrain
employees of Weirton Construction Company in the
exercise of their rights under the National Labor
Relations Act, as amended.
WE WILL NOT picket or cause to be picketed or
threaten to picket Weirton Construction' Company
where an object thereof is forcing or requiring Weirton
to recognize or bargain with us as the
collective-bargaining representative of its employees, or
forcing or requiring said employees to select or accept
us as their collective-bargaining representative, where
345
Weirton has lawfully recognized, in accordance with the
National Labor Relations Act, another labor
organization, and a question concerning representation
may not appropriately be raised under Section 9(c) of
the said Act.
UNITED MINE WORKERS
OF AMERICA AND UNITED
MINE WORKERS OF
AMERICA, DISTRICT 6
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board 's Regional Office, Federal Office
Building, Room 1695, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.
TRIAL EXAMINER'S DECISION
JERRY B. STONE, Trial Examiner: This proceeding,
under Section 10(b) of the National Labor Relations Act,
as amended, was tried pursuant to due notice on June 4,
1968, at Steubenville, Ohio.
The charge in Case 8-CB-1239 was filed on February
13, 1968, by registered mail, and was received by
Respondents on February 14, 1968. The charge in Case
8-CP-69 was filed on February 12, 1968, served on
Respondents on February 12, 1968, by registered mail,
and was actually received by Respondents on February 13,
1968. The consolidated complaint in this matter issued on
March 21, 1968.
The issues in this case essentially are (1) whether
Respondents engaged in coercive picketing and conduct
violative of Section 8(b)(1)(A), and (2) whether
Respondents engaged in recognitional picketing at a time
when such type picketing was illegal and violative of
Section 8(b)(7)(A) of the Act.
All parties were afforded full opportunity to participate
in the proceeding, and the Respondents and General
Counsel filed briefs which have been considered.
Upon the entire record in the case and from my
observation of the witnesses, I hereby make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER'
Weirton Construction Company (herein sometimes
called Weirton) is a West Virginia corporation, with its
principal office and place of business located in Weirton,
West Virginia. It is engaged in the business of general
contracting and the strip mining of coal, and has strip
mines located at Riddles Run, Brillant , Ohio, and at
Rayland, Ohio. In the course and conduct of its business
operations, Weirton annually receives products valued in
excess of $50,000 directly from points located outside the
State of Ohio. Further, annually, in the course and
conduct of its business operations, it mines, sells, and
distributes products valued in excess of $50,000, which
products are furnished to the Ohio Power Company,
All credibility resolutions made herein are based on a composite
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole.
The facts are based upon the pleadings and admissions therein.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is a public utility affecting commerce, and which
annually receives gross revenues in excess of $250,000 and
transmits electrical power valued in excess of $50,000
directly to points located outside the State of Ohio.
Based upon the foregoing, and as conceded by the
Respondents, it is concluded and found that Weirton
Construction Company is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. _
II. THE LABOR ORGANIZATIONS INVOLVED'
United Mine Workers of America and United Mine
Workers of America, District 6, are now, and have been
at all times material herein, labor organizations within the
meaning of the Act.4 It is so concluded and found.
Independent Strip & Coal Miners Union since January
1967 has existed for the purpose of being a bargaining
agent for the employees of Weirton Construction
Company with respect to such matters as wages,
vacations, hours, and grievances Said Independent Union
has a collective-bargaining agreement for such employees
with Weirton Construction Company. Employees of
Weirton Construction Company participate in said Union.
Based upon the foregoing, it is concluded and found that
Independent Strip & Coal Miners Union is now, and has
been at all times material herein, a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES'
As indicated, the issues in this proceeding concern the
events of January and February 1968, whether picketing
that occurred at Weirton Construction Company was for
an illegal object (recognition) and whether such picketing
and related conduct was coercive in nature.
Background
Weirton Construction Company is engaged in the strip
mining of coal at locations near Brillant, Ohio. More
precisely, the strip mining is located about 40 or 50 feet
off a road called Riddles Run Road which runs west of a
road called Route 7. There are three access roads from
Riddles Run Road to the mining area which extends for
about a mile along the area adjacent to Riddles Run
Road. Weirton Construction Company also has a dock
and coal-loading facility at Riddles Run Road in Rayland,
Ohio.
Weirton Construction Company in January and
February 1968 employed around 15 men in the mine
stripping area and around 6 men at the dock and
coal-loading facility.
The controlling interest in Weirton Construction
Company is owned by Pennweir Construction Company.
'The facts are based upon the pleadings , admissions therein, and the
credited testimony of McKim
'United Mine Workers of America and United Mine Workers of
America, District 6, shall sometimes herein be referred to as UMW and as
District 6.
'The facts relating to the unfair labor practices are based upon the
exhibits , the pleadings and admissions therein, stipulation , and the credited
aspects of all of the witnesses in the proceeding Most of the facts are not
in real dispute , and where such facts are in dispute , the resolution of such
dispute is indicated in the facts as recited
The president of Pennweir' Construction Company and
Weirton Construction Company is the same individual
Weirton Construction Company commenced opening
the strip mine facilities known as the Riddles Run Road
Mine in November 1966. Around this time five or six men
were sent by Pennweir Construction to the 'Weirton
Construction Company's Riddles Run Road mine to
break in a new drag line machine and to test it out. The
men from Pennweir Construction Company were paid by
Pennweir Construction Company. Weirton Construction
Company paid Pennweir Construction Company for such
work. At this time Weirton Construction Company had
five or six employees of its own. This situation continued
until around March 1967 when Pennweir Construction
Company employees ceased their work and returned to
home base in Pennsylvania.
At various times during the period November 1966
through March 1967 various officials of District 5 and
District 6 of the United Mine Workers of America visited
the Weirton Construction Company mine site involved
herein, requested permission to talk to the employees
involved, and talked to such employees in groups and
individually about the United Mine Workers of America.
Such representatives spoke to the employees of advantages
of the UMW organization and otherwise attempted to get
the employees to become members of the United Mine
Workers of America.
At some point of time after the execution of the
collective-bargaining agreement between Independent
Strip & Coal Miners Union and Weirton Construction
Company, District 5 of the United Mine Workers of
America demanded that Weirton Construction Company
recognize it as bargaining agent of the employees at the
Riddles Run Road mine. District 5 and District 6 of the
United Mine Workers had agreed that District 6 would
waive its territorial jurisdictional claim to representation
of such employees because of District 5's contention of
contractual rights arising out of a collective-bargaining
agreement between District 5 of UMW and Pennweir
Construction Company. District 5 of UMW presented its
contentions to the Weirton Construction Company that
District 5 was entitled to recognition because of the
employees from Pennweir Construction Company who
worked at Weirton Construction Company between
November 1966 and March 1967.6 Officials of Weirton
Construction Company apparently at the first meeting,
and clearly at meetings in May and June 1967, contended
that Pennweir was a separate corporation, that Weirton
Construction Company had paid Pennweir for the work
done by Pennweir personnel, and that Weirton
Construction Company had recognized the Independent
Strip & Coal Miners Union and could not recognize
District 5 of the United Mine Workers of America '
'Williams, president of District 6 of the UMW, who was nol present at
the time, placed the initial demand in January or February 1967 Conti,
vice president of Weirton Construction Company, who was not present at
the time, placed the initial meeting of a demand negotiation type in March
1967. Considering all of the foregoing and the consistencies of the
evidence , I find the evidence to persuade that the initial demand was made
after the contract was entered into by Weirton Construction Company and
Independent Strip & Coal Miners Union in the latter part of January
1967
'Conti, at one point in his testimony, testified that Williams (president of"
District 6 of the UMW ) was present at the May 1967 meeting between
Weirton Construction Company and the UMW officials On
cross-examination Conti indicated that he was not sure that Williams was
there I credit Williams' denial that he was at any of the "demand"
meetings.
UNITED MINE WORKERS OF AMERICA, DIST. NO. 6
Setting in January 1968 ; Conclusions as to Setting;
The Lawfully Recognized Union
Considering all of the foregoing, it may be summarized
that in January 1968 Weirton Construction Company had
a collfective-bargaining agreement with the Independent
Strip & Coal Miners Union which by its terms was
effective until January 1, 1971. In addition to the facts
previously set forth it is overwhelmingly established that
the vast majority of the Weirton Construction Company
employees at the mine involved were members of the
Independent Strip & Coal Miners Union who allowed
their dues to be deducted by virtue of checkoff
authorizations.
The Respondents contend that the Independent Strip &
Coal Miners Union was not a lawfully recognized Union
The General Counsel contends that Section 10(b) of the
Act, with reference to a prohibition on the prosecution of
an unfair labor practice charge as to events occurring over
6 months before the filing of the charge, insulates attack
on the legality of the contract involved or the recognition
of the union involved I find it unnecessary to pass upon
this last issue. Considering all of the evidence, including
the presumption of regularity which must attach to the
execution of the agreement involved and the lack of
persuasive evidence to overcome such presumption, I find
it proper to conclude and do conclude that the
Independent Strip & Coal Miners Union was the lawfully
recognized representative of the employees involved in
January 1968 and at all times material herein
UMW Dispute with Weirton
The foregoing facts clearly reveal that until June 1967
the United Mine Workers Union, and its Districts 5 and
6, disputed the recognition of the Independent Strip &
Coal Miners Union as bargaining representative of
Weirton Construction Company employees.
Picketing and Coercive Conduct
Events of January - February 1968 at Weirton
Construction Company'
On January 30, 1968, Foreman Michael Balletto was
informed by some of Weirton Construction Company
employees that four carloads of UMW men had been at
the main mine site and had told them that they were
coming back the next morning and shut the mine down.
On January 31, 1968, around 7:30 a.m. to 8 a.m., about
50 pickets arrived in 10 to 15 cars at the main work area
of the Weirton Construction Company. Thereupon 10 to
15 pickets located themselves at each of the three
entrances to the access woods to the mine area, and the
remainder were spread out along the road adjacent to the
strip mining operations Other cars (10 to 15 in number)
arrived thereafter with approximately 20 pickets.
Approximately 10 to 15 pickets detached themselves from
the major body and went to picket the Rayland loading
area. Thus, there were approximately 45 to 50 pickets
picketing the main mine area where around 15 employees
'The facts are based upon a composite of the credited testimony of
Mitchell , Charles Balletto , Conti, and Michael Balletto and a fair inference
therefrom. Although Charles Balletto in his testimony appears to place the
initial picketing on January 30, 1968, 1 am convinced, considering the
testimony of Michael Balletto and the other witnesses , that the initial
picketing eccurred on January 31, 1968
347
normally worked and there were 10 to 15 pickets at the
loading area where 5 to 6 employees normally worked.'
After January 31, 1968, it is clear that similar picketing
occurred on every workday until February 16, 1968. On
February 16, 1968, a State court injunction was filed,
restraining picketing of certain types and numbers.
It is clear that Weirton Construction Company, after
the picketing on January 31, 1968, shut down its
operations until February 5, 1968. It is not clear whether
the picketing that occurred after January 31, 1968,
continued throughout the work shift times or occurred
only around commencement of separate work shift times.
Just prior to February 5, 1968, there were television
and newspaper stories indicating that various picketing
activities at various mines in the area were ceasing.
Weirton Construction Company sent word to its
employees that it was working its mine on February 5,
1968.
On February 5, 1968, around 8 a.m. when Weirton
Construction Company was commencing to resume
operations at the Riddles Run Road mine, between 15 and
25 carloads of pickets, numbering around 50 to 75 pickets,
again appeared at the mine site area and resumed
picketing.
On this occasion Rudolf Vitter, International
representative of the United Mine Workers assigned to
District 6, was present. During the time of the picketing
Vitter spoke to employee Mitchell and to Supervisor
Charles J. Balletto.
The events occurring in Mitchell's presence are
essentially revealed by the following credited excerpts
from his testimony:
Q. And what did you do after you arrived at work"
A. I parked my car by the office' and got a ride to
the drag line which was about a mile away and I
started the machine up and it had been pretty cold so I
had to swing the machine around to loosen it up a little
bit and I noticed in the pit a truck coming back in and
dumping its load of coal and the job foreman, Frank
Balletto was there and I said, it looks like something
was going on. Maybe he should find out and he went
down to check on it and came back and told me to shut
the machine down again, that the pickets were here and
we were going to be down for a while.
Q. And about what time was this when you shut
down the machine"
A. This was shortly after eight.
Q. And then what did you do after you shut down
the drag line?
A. I went back to the office - I got a ride from the
drag line to the office to my car and I started to leave.
A. Well, there was a driveway that comes off Riddles
Run Road and makes a U-shape in front of the office
and goes back on Riddles Run Road and I started to
drive off onto Riddles Run Road and the car in front
of me was stopped and some of the men, they were
talking to the driver and one of these gentlemen came
'Michael Balletto estimated the number of pickets as being 50 and the
number of cars as being 10 to 15. Mitchell estimated the number of pickets
to be around 70 and the number of cars as being around 30 to 35 . Charles
Balletto estimated the number of pickets at the Rayland area to be around
15 to 20. It is clear that these estimations could vary depending upon the
time that observation was made . It is also reasonable to believe that all of
the pickets did not arrive at the same time and that some of the 70 pickets
observed by Mitchell would be ones who later went to the Rayland area.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to me and they told me there wasn't any sense in
my coming back to work the next day, and I asked
him; well, what can we do to straighten this situation
out? What can we do to go back to work and I asked
him if he had any cards or what were they going to do
and he called Mr Vitter from the picket line; called
him over to my car.
Q. And did Mr. Vitter come to your car?
A. Yes, he did.
* *
Q. Now, could you tell us what Mr. Vitter said to
you and what you said to him?
A. Well, he came to the car and he told me that this
Independent Union was no good, that we could take
this Independent contract and wipe our hindends with
it. That this job would not go as long as the
Independent Union was there and he also told me that
it wasn't up to the men to have an election, that the
Company would have, I suppose, to sign a contract
with them or whatever the procedure is. I don't know.
Q Sign a contract with who?
A. With the United Mine Workers
Q. And, was anything else said then?
A. No. I don't think there was; he was pretty angry.
The events occurring in Charles J. Balletto's presence
are essentially revealed by the following credited excerpts
from his testimony:
A. On February 5, I spoke to Mr. Rudy Vitter at
our plant. This was late in the morning around 8.30 or
9:00 o'clock and I was speaking to Mr. Vitter.
Q. Where did you talk to Mr. Vitter?
A. The -- below our office. I shook hands with him.
Q. Can you tell us what was said at that time by
yourself and Mr. Vitter?
A. Well, we called the men out to work Monday
because we heard the strike was over according to radio
and television and after seeing him I asked him what
this was all about.
He said they were representing the United Mine
Workers Union and they were picketing the mine and
they didn't recognize the Union that the men had so he
told me if I wanted to go back to call Tom Williams
who is President of District 6 and then we could go
back to work and he said that the rank and file of the
United Mine Workers does not recognize this union.
Q. What union?
A. The United Mine Workers Union and he said
they would continue picketing our premises until - he
says, we just come from the Teramana Brothers Coal
Mining operation and he said a couple of men got hurt
because they tried to break the picket line and a few
cars were damaged. Then the men were threatening me
and calling me names.
Weirton Construction Company again on February 5,
1968, shut down its operations after the foregoing
picketing. As indicated, it is clear that picketing
substantially similar to the January 31, 1968, picketing
occurred on all workdays until February 16, 1968, at the
main mining area and at the loading area It is not clear
whether such picketing continued daily during all standard
work hours or only occurred at the normal shift starting
and changing times. It is not clear whether or not Weirton
Construction Company engaged in some working
operations prior to February 16, 1968. It is noted that the
cessation of picketing after February 16, 1968, occurred
after the issuance of a State court injunction restricting
the type of picketing and the number of pickets.
Certain events, however, occurred after February 5 and
prior to February 19, 1968, which are herein set out,
On Thursday, February 15, 1968, employee Mitchell
went to the United Mine Workers office in Bellaire , Ohio.1 o
There Mitchell saw and spoke to Vitter again, What
occurred is revealed by the following excerpts from
Mitchell's credited testimony:
A. Well, like I said mainly I went to see Mr. Vitter
just to talk to him and find out just about how long this
job shutdown was going to last and then I also went to
tell him -
Q. Did you ask him this question; how long the
shutdown was going to last?
A. Yes, I did. I can't remember word for word how
this conversation went but he said something to the
effect that as long as we have this Independent Union
that we are going to have trouble there so I asked Mr.
Vitter or these three gentlemen how we could go about
getting rid of the Independent Union and they
proceeded to tell me and I also told Mr. Vitter that I
had made a statement involving the conversation of
February 5th; the date before their meeting with Mr.
Vitter and these gentlemen.
The next day Mitchell went to the Weirton
Construction Company mining area. What occurred is
revealed by the following excerpts from his ciedited
testimony:
A. Yes, I was supposed to go to work this Friday
and I was supposed to go on the afternoon shift and I
went to the job and there were a group of men there
and they told me that the job wasn't they asked me
if I worked there and I said yes and they said there is
not going to be any work there today and I said today
is payday and I wanted to get my paycheck; I would
like to get my check and they wanted to know how they
could be sure I would come back out and I told them I
would leave my car there on the road where they were.
Q. And how many men were present?
A. I don't know. Around 20, 1 would say.
Q. Where were they standing?
A. On Riddles Run Road.
As indicated previously, the picketing ceased around
February 16, 1968. On February 17, 1968, Williams,
president of District 6, sent a letter to all local unions of
District 6. The letter referred to a court injunction that
had issued relating to the Teramana Brothers Coal
Company. In the letter Williams set forth "We will
continue our efforts to organize the Teramana Brothers
Coal Mining Company and all other non-union mines in
District 6 in a lawful manner and will appreciate your
help in this regard." It should be noted that Williams
considered all mines that were not under contract witth the
UMW to be nonunion mines
Respondent's Evidence
In addition to the facts set above, it may be stated that
the Respondent presented for consideration only the
testimony of Williams, president of District 6 of the
UMW. In essence the Respondents presented evidence to
establish that the January - February 1968 picketing was
spontaneous in nature and in sympathy with an incident
that occurred wherein a picket died in a UMW-Solar Fuel
Company dispute in Pennsylvania. In essence Williams
"Mitchell, it is noted, was secretary-treasurer of the lawfully recognized
Independent Union
UNITED MINE WORKERS OF AMERICA, DIST. NO. 6
testified that he had no direct knowledge of many of the
events but understood that picketing occurred at mines all
over the area, that companies under contract with the
UMW complained, that he had a meeting and urged local
unions to go back to work because of their contracts, that
he had no authority to instruct others to cease or continue
picketing, and that he had not authorized or instructed
UMW agents or employees otherwise to engage in
coercive or recognitional picketing.
Although Williams' personal appearance was that of a
person of great dignity, he appeared to search carefully
for answers at times and to attempt to avoid specifics,
especially with reference to reports made to him about the
picketing and to identity of pickets. He frequently stated
that he could not recall any specific reports and stated at
one place, "Now, who they were on the picket line I don't
know because I was never there and I never wanted to
know who was on the picket line " Williams was prone to
show knowledge when leading questions by his own
counsel were used, and to have a lack of specific
knowledge on cross-examination. The totality of the direct
and cross-examination of Williams ultimately revealed
that he knew more than he would readily answer to
initially and that his answers were evasive to a critical
degree.
It is clear from Williams' testimony that he had reason
to believe that mass picketing was occurring at the
Weirton Construction Company mine sites and at other
non-UMW mines, that he knew that employees from
mines represented by the UMW were picketing at other
non-UMW mines for which the UMW contended
recognitional rights, and that he knew these employees
were picketing for resultant recognition and UMW
contracts.
Considering Williams' testimony as indicated above on
crucial points, I discredit his testimony to the extent that
it may be construed that he did not have reports of the
activities of Vitter and the pickets as set forth previously,
and to the effect that he had not authorized or instructed
Vitter to engage in the activities engaged in. Considering
all of the facts, I find it hard to believe and do not believe
that Vitter did not report his plans and activities to
Williams. On the contrary I find it proper from all of the
evidence to conclude that Vitter did report his plans and
activities. I find it hard to believe that Vitter would have
engaged in the activities as set forth previously without
authorization or instruction, at least implied. Accordingly,
I conclude and find that President Williams of District 6
of the United Mine Workers did in fact authorize Vitter
to carry on the picketing and recognitional activities that
did in fact occur.
Conclusions
The issues and contentions of the parties in this
proceeding, like most proceedings, are resolved essentially
by the fact determinations. In this regard I note that,
contrary to the General Counsel, responsibility for
coercive and illegal recognitional picketing cannot be
placed upon Respondent because of the conduct of alleged
agent Kubic. The evidence is insufficient to establish the
person referred to as Kubic as being the Kubic who is an
agent of Respondent District 6.
Considering all of the facts found herein, it is clear and
I conclude and find that the picketing at the Weirton
Construction Company mine sites and dock facilities was
coercive in nature. Thus the number of pickets involved as
compared to the working area and number of employees
349
involved in work , in context with the statements and
remarks of Vitter, reveals such picketing to be mass
picketing and coercive in nature as directed toward the
supervisors and employees of Weirton Construction
Company. Further , the statements of Vetter and pickets to
supervisors and employees of Weirton Construction
Company, Williams ' testimony as to what the pickets told
him concerning the purpose of the picketing , and the facts
as a whole reveal the picketing to have been engaged in
for the purpose of recognition of the United Mine
Workers of America as bargaining representative of
Weirton ' s employees , for employee selection of the UMW
and District 6 as their bargaining agent, and for a
resultant contract , notwithstanding the fact that
Independent Strip & Coal Miners Union was the lawfully
recognized collective-bargaining agent of the employees of
Weirton. The evidence is clear that neither United Mine
Workers of America nor its District 6 are the certified
bargaining representatives of the Weirton Construction
Company employees.
It is clear also that both Respondent District 6 and
Respondent United Mine Workers of America are to be
held responsible for such picketing . Thus, Vitter,
International representative of Respondent United Mine
Workers of America, clearly acted as an agent for both
Respondents Respondent District 6 is subordinate and
under the control of the United Mine Workers of
America. Vitter is assigned by the United Mine Workers
of America to District 6, and his primary duties are to
engage in union organizational work and such other duties
as assigned by the District ' s president . It is clear that he
was engaged in such duties in this case and that neither
the United Mine Workers of America nor District 6 took
any steps to disavow or disassociate themselves from his
actions.
Considering all of the foregoing , it is clear and I
conclude and find that Respondents District 6 and United
Mine Workers of America , as alleged, have engaged in
conduct violative of Section 8(b)(1)(A) and 8 (b)(7)(A) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section
III, above, occurring in connection with the business
operations of the Weirton Construction Company
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices, it will be recommended that
Respondents cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Weirton Construction Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Mine Workers of America and United Mine
Workers of America, District 6 are labor organizations
within the meaning of Section 2(5) of the Act.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By restraining and coercing employees in the exercise
of rights guaranteed by Section (7) of the Act,
Respondents have engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
4. By picketing Weirton Construction Company with an
object of forcing or requiring Weirton Construction
Company to recognize and bargain with Respondents as
the collective-bargaining representative of its employees,
and with a further object of forcing or requiring Weirton
Construction Company employees to accept or select
Respondents as their collective- bargaining representative
at a time when Respondents were not certified as such
representative and Weirton Construction Company had
lawfully recognized the Independent Strip & Coal Miners
Union as the collective -bargaining representative of its
employees and when a question concerning representation
could not be raised under Section 9(c) of the Act,
Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b)(7)(A)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]