United Mine Workers of America

National Labor Relations Board - Board Decisions

Aug 10, 1971

192 N.L.R.B. 565 (N.L.R.B. 1971)

DISTR. 20, UMW 565
District 20, United Mine Workers of America and
Harbert Construction Corporation . Case 10-CB--
1981.
TRIAL EXAMINER'S DECISION
STATEMENT OF TEEM CASE
August 10, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 17, 1971, Trial Examiner Alba B. Martin
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached " Trial Examiner's Decision. Thereafter,
Respondent filed -exceptions to the Trial Examiner's
Decision and a supporting brief. The Charging Party
filed motions to strike the exceptions and brief of
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor . ielations Act, as amended, 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, , the
motions, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National-Labor
Relations Board adopts as its Order the recommend.
ed Order of the Trial Examiner and hereby orders that
the Respondent, District 20, United Mine Workers of,
America;.its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's
recommended Order.
I Ile Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products, inc., 91 NLRB 544, enfd. 188
F.2d 362 (C.A. 3). We, have carefully examined the record and find no
basis for reversing his findings.
ALBA B. MARTna, Trial Examiner: This base was heard in
Birmingham, Alabama, on April 21, 1971,, pursuant to a
charge filed by the Company on February 4, 1971 and a
complaint issued on March 11 , 197-1. The issue litigated, was
whether Respondent Union violated . Set tion S(b}(1XA) of
the National Labor Relations Act, herein called the Act, by
threats on and near a picket line.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after , due consideration of
the briefs filed by the Company and Respondent Union, I
make the following:
FINDINGS ()V_ PACT
L JURISDICTION
Harbert Construction Corporation , herein called the
Company, an Alabama corporation with its principal, office
and place of business in Birmingham, Alabama, is engaged
primarily , in general contracting: During the . calendar year
prior to the issuance of the complaint, a representative
period, the Company purchased and received goods valued
in excess of $50,000 directly from points located outside the
State of Alabama . Respondent Union admitted„and I find,
that the Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that District
20, United Mine Workers of America, Respondent, Union
(herein sometimes called the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
This case involves three incidents on a picket line shortly
before and after the Union filed a petition`' The complaint
alleged and Respondent's answer admitted that since on or
about January 11, 1971 , Respondent has sponsored and
engaged in a strike and' established a picket line near the
entrance to the Company's strip mine adjacent to U.S.
Highway 31 between Hoover and Pelham, Alabama. The
testimony showed that this was the main entrance to the
mitre, and the entrance used -to carry the coal out.- The
pickets were at the entrance to the mine road where the
road leaves a large parking area next to "the highway.
The strike began" early in the morning on - Monday,
January 11, 1971, and was still on at the time of the hearing
herein. At or about 5:45 a.m. on January 11 there were over
50 persons on or near the picket line. There were about the
same number in the early morning hours on Monday,
January 18. Otherwise, each day for the first 2 weekss of, the
strike, the period- which included- the three incidents
involved herein, there were between 40 and 50 on or near
the picket line during the early morning hours. The
Company's project manager for this coal stripping project
credibly testified that but for the strike the Company would
have employed 23 or 24 men on January 11. The, project
1 From the Board's official records I take official notice that on January
20, 1971, the Union filed a petition for an election in Case 1d-RC-8585.
192 NLRB No. 93
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager credibly testified there were only 20 company
employees among the pickets . It follows that all in excess of
this number on the picket line -were, not then company
employees . International Representative Littlefield testified
that some of these were retired mine workers and some
were memberssof the Union who worked at=other mines in
the -,general a±ea1- acid who stopped at the picket-, lfor a
few moments on the way to work.
After` the 'early morning hours these, first, 2 weeks,, the,
number ofpickets dwindled each day to about 8=12. -
Each day dW ing-at -least-these first 2 weeks of the strike,
the Union had at least one, of its representatives-, on the'
picket' line up until noon'=or'shortly thereafter: Sometimes
there were more 'than one.
1. On or about January 14,2 several days after the strike
and picketing began, the Company's superintendent,
Stephens, and a foreman, Faulkner,Idrove up to the pickets
and told a union representative, Boothe,3 who was there,
that the Company planned to move some equipment which
needed repair, including the front-end loader, from the
mine to the Company's maintenance shop, which was down
the bighway a,^ few miles . The company representatives
asked for the Union's position-on the matter. Boothe said
he would' confer with the strikers and asked Stephens and
Faulkner to`return a lttle later. When they returned Boothe
or a striker named Coffer, orboth, told them that themen
had talked it over`and `had 'decided not to let-the Company
move the equipment. The• company 'representatives replied
that they `wouldnevertheless' move it.
About -noon that day, as Faulkner was driving' a front-
end' loader away from the mine, he was beckoned to stop atY
the picket line byStriker Coffer. According to the credible
and credited testimony of Faulkner,4 Coffer asked- hlm
where he was going with the loader. Faulkner replied he
was taking it to the shop. Another striker named Prestly
said that if Faulkner knew what Prestly knew he would take
the loader back and parkit. Coffer said that Faulkner could
get in 'a lot of -trouble over that, that if he -took ,the loader
out Faulkner and his, wife and children would; be in some
bad, trouble;, that all Coffer had to do was to make one
telephone call. There were 8, to 10 pickets in the immediate.
area. Somebody asked - if , Faulkner was- acting, under
company orders,,and Faulkner replied that he was,,,under,
orders of Mr. -Harbert. Somebody suggested that Faulkner
prove it., Faulkner then got down from the loader, walked,
with a striker named, Collum to,a nearby ,telephone,. and
called Superintendent Stephens. Then , Faulkner told
Cpllum that Stephens, said that. Harbert =said he should,
bring the loader to the shop. Collum then warned Faulkner
that he had better watch Coffer. 4, - s
After, Faulkner-again mounted,the loader, Coffer again
threatened that all he -,had to do;was to make one telephone
call ,and Faulkner's wife and family would be in ;trouble,
When Faulkner asked if Cofferwas threatening hint, ;Coffer
replied that;hecould take it- any, wayhe:wanted, that Coffer
would make- the call. On cross-examination by Respondent
2 All, events herein ocqurrgd -in 1971. - - '
3''Respondent Union's witnesses testified that Hillhouse, not Boothe,
was the union representative on the picket line that morning . I credit the
testimony of Superintendent Stephens on this point ; who'said they' spoke to
Boothe,whom Stephens ' hadknown for 20 years. I
Union's counsel, and- without objection; Faulkner credibly
testified,thathe was :frighteneddby wlkat-,Coffer. said.
Coffer denied threatening Faulkner's We and family. He
testified he told Faulkner that he, Coffer, liked his wife and
kids "too much to mess with the picket line." Some of his
attempts to explain just,what, he meant by this demonstrat-
ed his incredibility as a 'witness. He admitted, however, that
messing with the picket line included coming up to it and
aggravating and carrying on, and that "just crossing over
it" was messing with it ',`in.,a general situation." He said,
"Anything aggravates it." He said that pulling up to the
picket line and stopping aggravated it because there were
three entrances and Faulkner could have used one of the
others. In total Coffer was, a confused witness and not, as
credible a witness as Faulkner, ^,
Coffer's threats to Faulkner and his We and children
occurred when there were some 8-10 pickets in ,the
immediate area, on a day when earlier in the morning there
were some 40-50 present. ` Hillhouse, a union representative,
was in'the area,,and Boothe, who was there earlier that
morning, may have been. Coffer's threats were made right
on the, picket line; and were sure-to have become known to
the other -strikers, and pickets. It has,long, been settled that
restraint and coercion directed Against supervisors sand
managerial personnel under,,,cire- umstances where. the
conduct became- or was sure to become- known, to ithe
Company's striking or nonstriking employees constitutes
restraint and coercion' of employees in the exercise of their,
statutory,rights within the meaning of Section 8(b '-of
the Act. See, e.g., internation"al Wood Workers of ;America,
1 i6-NLRK'507)508; Communications Workers of America,
120 NLRB' 684, 686.
,Upon the above,factssandconsiderations, and-the-entire
record considered as a whole, I find that Coffer's threats,
fort-which Respondent Union was responsible,,constituted
the, restraint and coercion. pf employees ,,„proscribed in
Section,8(bXl)(A)vof the Act. In addition `P estly'ss remark
that if Faulkner knew 'what he knew, he would .park the
loader, an& Collum's warning that Faulkner better watch
Coffer, amounted, under all the' circumstances of this-case;
to `additional threats which were sure to become known to
employeesY and which reasonably tended- to restrain and
coerce employees, Respondent thereby further violating
Section 8(b)(1)(A).
While he was talking to Faulkner, Coffer went part way
up the ladder on one side of the loader and held on to the
sides of the ladder. On cross-examination Faulkner testified
that Coffer put one hand in his pocket, causing Faulkner to
fear that Coffer had a'knife. Coffer denied he put a-hand-in
his ' pocket and denied he'had a knife: He-`testified' he held
on" to the- loader' with'both hands.; Coffer was 'considerably
below ,Faulkner on the loader,:made no attempt 'to grasp'or
swing at Faulkner,-andwould,have been at considerable
disadvantage if he bad.,' There was ao evidence-of knifeplay
in connection with the strike, and no testimony that, anyone
else present saw Coffer's hand in his pocket. Under all the
circumstances I do not believe that Coffer had a knife- or
^' By his^',demeanor' Faulkner impressed me as a credible "witness,
although he has been convicted (many years ago) of two felonies for which
he has paid his debt to society. He testified= easily, andfreely on direct and
cross-exanliwation, ' and in addition much --'of his testimony was
corroborated by other witnesses. -
DISTR. 20, UMW
threatened -Faulkner inthe alleged manner, and I find there
was no violation-in this regard.
2. Early Monday morning, January 18, Foreman
Faulkner drove through the picket line towards the- mine
without incident, carrying a nonstriking company employ-
ee, Clowdus, in a{company pickup truck Clowdus; who had
worked at this mine before the strike, was going into the
office- for see-if-he-could work elsewhere for the Company
during the strike . Upon their-return about 1/2 hourlater,
between 8- and 9 -a.m., they stopped to give one of the
pickets ' a message from his wife;-There were about 10`12
pickets. As they paused an International representative of
the Union, Littlefield, approached the right side of the car
and spoke with some, profanity and in a harsh tone to
Clowdus. He asked Clowdus his name, and the latter told
him. He told Clowdus, sticking his finger "right in his
nose," that he was going to -honor these pickets, that he
wasn't going to cross this line anymore, that we don't want
you back in there anymore. Clowdus assured him that he
'would'n't cross -the line anymore. Littlefield told Clowdus he
would be `in trouble if he did, and `that, in fact, he was
already in trouble. Clowdus' testified withoutobjection that
this latter statement- upset him and caused him some fear
for his personalsafety;'that he has a wife and children:
Littlefiel& also-spoke profanely-and sharply to Foreman
Faulkner, puttmg' his- finger "in "my face" as Faulkner
leaned 'over to the right side of the car He asked Faulkner
what he thought he was doing, driving these men back and
forth through the line. Faulkner replied-. that Clowdus
wanted to 'go in "to find out what was'going on." Littlefield
told Faulkner he was not to let that happen again, that we
,respect your.right as a, foreman to go in and out, but that
you are notto carry men across the-line anymore:'
Since this ' incident' Clowdus has not been back to the
mine except to vote in a Board-conducted election on
March 19.
The above is based ' upon the credited testimony of
Clowdus, a credible witness, and Faulkner. Littlefield
testified in substance that he was calm, used no profanity,
and simply asked Clowdus to observe the picket line and
not cross it.
As Clowdus by his demeanor impressed me as a credible
witness, as his testimony was corroborated by Faulkner,
and as the record showed that commands were more in the
spirit of this ' picket ne,than entreaty; I credit Clowdus and
Faulkner '"and find' that by Littlef"ield's stern threats to
Clowdus that he would be in trouble if he crossed the line
and was' already in trouble, Respondent Union restrained
and coerced employees in the exercise of their Section 7
rights, Respondent thereby further violating 'Section
8(b)(1XA) of, the Act.
3. On Monday morning, January 25, just before noon,
Foreman Faulkner drove to the picket line from the mine in
a company truck, carrying a Negro employee named
Anderson, who worked in the Company's maintenance
shop. They had 'driven through the line towards the mine
without incident about a half hour before. Upon their
return they ' were' beckoned to stop by a union representa-
tive, a Negro man named Brown. The latter went to
Anderson's, -side of the truck. There were five-six pickets
within hearing distance, at least-some of them striking
567
company. employees. According to the credible and
credited testimony of Faulkner and Anderson, Brown
opened the conversation by asking Anderson his name.
Anderson replied by asking him who, he was, a "deputy
sheriff?" Brown -replied 'he might be, and he put, his -right
hand inside his - coat under his, left shoulder, . giving
Anderson the impression,- by this gesture and his stem tone
of voice, that he had a gun. Brown then-told Anderson
either that .he was not to cross the picket line-anymore or
that he was not to go to-the mine anymore. Brown ,and
'Anderson both used a few "cuss" words such 'as "damn"
and "hell." - -
As they stopped and before the conversation started,
Brown opened the truck door on Anderson's side part way.
The window was up and 'Anderson could not roll it down
because the handle was missing. Brown spoke to Anderson
as related above through the partially opened door. When
Brown reached'up'under his left shoulder Anderson'made
an attempt to open the door further "soI couldget him and
him not get me because 'he didn't-come at mein the right
way about it, no way." '
On cross-examination by Respondent's counsel Ander-
son credibly testified' that when he reached up under his
shoulder Anderson thought Brown had' a gun, "the way he
come and the tone of his voice. -.I didn"'t ow what he
had up under there .... I wasn't taking no-c ces."
The above is based upon the testimony of,Anderson, who
by his demeanor and his ` testimony impressed me as a
credible witness, and upon the corroborative^testimony of
Faulkner. Brown denied that he opened'the door, denied
using any profanity, and testified that he 'simply asked
Anderson to honor the picket line and not to go into the
mine and do any work. Brown denied that he ran his hand
up under his coat and testified that in fact he was wearing a
zippered jacket which was zipped up to his neck because it
was cold that morning. In his pretrial affidavit Brown
stated that he didn't put his hand in -his coat -but said
nothing about wearing a- zippered jacket that was zipped
up. At-the,hearing he did not-recognize the Board agent
who had taken-his pretrial affidavit, who was counsel- for
the General Counsel in this case., In view of all the above I
did not find- Brown as credible' a witness concerning the
events of - June 25, as Anderson; was. Further, Brown's
testimony on cross-examination by the Charging Party that
anybody is free to cross the picket line and go to work,
without any coercion or threats, is contrary to the other
threats found above to have occurred, and is incredible.
Upon ' alt" the events and considerations in this episode,
and upon the entire record, I find that by Brown's stern
order that Anderson was not to cross the line or go to work,
and his gesture with his hand, all of which occurred in the
immediate presence ` of -two other `pickets, Respondent
Union further restrained and coerced employees - in the
exercise of Section 7 rights and thereby- further - violated
Section 8(b)(1)(A) of the Act. . '
4. As has been seen-above, the threats-in two of the
three episodes were made to prevent nonstriking -employees
from crossing 'the picket line and going to work. The
presence of large numbers of men-more than twice the
number of-men employed at the mine-in the picketing
area' each morning for the first 2 weeks of the strike and
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specifically on the mornings of the incidents,-would' tend,
when taken together with the "threats made during all three
episodes, to chill the desire of-any employees who wished to
cross the picket -line for any purpose 'including going to
work. All of these facts and all of the circumstances in this
case, considered together, indicate a pattern of coercive
conduct'by Respondent Union which,I find, tended to, and
was in fact designed to, restrain and coerce employees in
the exercise . of their Section, 7 rights to refrain from
engaging in union, activity,I Respondent thereby violating
Section 8(b)(1)(A) of the Act. See United Mine Workers of
America (Weirton Construction Company), 17-4 NLRB No.
52.
CONCLUSIONS OF LAw
1. By threatening a supervisor and his wife and children
because he drove a company vehicle to be ,repaired through
a, picket line, Respondent engaged in unfair labor practices
affecting commerce within the meaning of' Sections
8(bx1XA) and 2(6) and (7) of the Act.
2. By threatening an employee that he would be in
trouble if he crossed a picket line, and that he was' already
in 6rouble°for crossing it, Respondent violated Section
8(bx1XA) and Section 2(6) and (7) of the Act.
3. By simultaneously ordering an employee not to cross
a picket line or go to the mine, and making a threatening
gesture towards him, Respondent violated Section
8(bx1XA) and Section 2(6) and (7) of the Act.
4. By engaging in a pattern of coercive conduct to
restrain or coerce employees in the exercise of their rights to
refrain from engaging in union activity, Respondent
violated Section 8(l,X1XA) and Section 2(6) and (7) of the
Act.
REMEDY
In order to effectuate the policies of the Act, I find it
necessary that Respondent-Union be ordered to_cease and
desist from the-unfair labor practices found and from like
or'related invasions of the employees' Section 7 rights, and
to take certain affirmative action.
Upon the foregoing findings of fact and conclusions of
law,-upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: 5
ORDER
Respondent, District 20, United Mine Workers of
America, its officers, representatives, successors, and
agents, shall:
1. , Cease and desist from:
(a) Making threats to a supervisor, and his wife and
children, because he drives a ' company vehicle through a
picket line to be repaired.
(b) Threatening employees they will be in trouble and in
fact are already in trouble for crossing a picket line.
(c), Simultaneously ordering employees not to cross a
picket line or go to .the mine, and making threatening
gestures towards them. , -
(d) Engaging,in a pattern of coercive conduct to restrain
and coerce, employees in the exercise of their rights to
refrain from engaging in union activity.
2. Take -the - following affirmative action which - is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous, places at Respondent Union's
office, hiring hall if any, meeting halls, and at all places
where notices to members and employees of Harbert
Construction Corporation are customarily posted, copies of
the attached,inotice marked "Appendix."6, Copies of said
notice, to be furnished by the Regional Director for Region
10, shall, after being duly signed by Respondent Union's
authorized representative, be posted by Respondent
immediately, upon receipt thereof,^and be maintained by it
for 60 consecutive days. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of, said notice to the
Regional Director for Region 10, for posting by Harbert
Construction Corporation, if i willing, at all locations in. its
places of, business, and at its mines where notices to its
employees are customarily posted.
(c) Notify said Regional Director,, in writing, within 2'0
days from the date of this Decision, what Respondent
has taken to comply herewith.?
S In the event no exceptions are filed as provided by Section' 102.46 of
the Rules and' Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and, Recommended Order herein
shall, as provided in Section 102.48 of the Rules and , Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
'all objections thereto shall be deemed waived for all purposes.
6 In the event that the Board's Order is enforced by -a judgment of 'a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed , to, read
"Posted Pursuant to a. Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
7 In the event that this recommended Order .is adopted by the Board
after exceptions have been'filed , notify the Regional Director for Region
10, in writing, within 20 days from the date , of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE
POSTED BY ORDER OF TIP,
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To ALL MEMBERS OF DISTRICT 20, UNITED MINE
WORKERS OF AMERICA, AND TO ALL EMPLOYEES OF
HARBERT CONSTRUCTION CORPORATION
WE WILL NOT threaten any employee that he-will be
in trouble, or is already in trouble, forcrossing a picket
line.
WE WILL NOT while making a'threatening gesture
towards him order any employee not to go to,the',mine
anymore during a strike, or not to cross a picket line.
WE WILL NOT threaten any supervisor and/or his We
and children because he drives a company vehicle
through a picket line to be repaired.
WE WILL NOT engage in a pattern of coercive conduct
to restrain, and coerce employees in the exercise of their
rights to. refrain from engaging in union activity.
WE WILL NOT in any like or related manner restrain
or , coerce employees in the exercise of 'the rights
guaranteed in Section 7 of the National Labor
Relations Act.
DISTR. 20, UMW 569
DISTRICT 20, UNrrED MEVE This notice must remain posted for 60 consecutive days
WoRunxs of AMERICA from the date of posting and must not be altered, defaced,
(Labor Organization) or covered by any other material.
Any questions concerning this Notice or compliance with
Dated By its provisions, may be directed to the Board's Office,
(Representative) (Title) Peachtree Building, Room 701, 730 Peachtree Street N.E.,
This is an official notice and must not be defaced by
Atlanta, Georgia 30308, Telephone 404-526-5760.
Anyone.