United Mine Workers of America, Dist. 12

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 213 (N.L.R.B. 1969)

UNITED MINE WORKERS OF AMERICA, DIST. 12
United Mine Workers of America, District 12, and
United Mine Workers of America , (Truax-Traer
Coal Company, et al.) and International Union of
District 50 and Local 649, International Union of
Operating Engineers, AFL-CIO
Laborers Local 231 , Laborers International Union of
North America, AFL-CIO and Chauffeurs,
Teamsters and Helpers Local Union No. 15,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 38-CP-14, 38-CB-151, 38-CP-15,
38-CB-152, 38-CP-16, and 38-CB-153
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On February 25, 1969, Trial Examiner William
W. Kapell issued his decision in the above-entitled
proceeding, finding that the Respondent Unions had
engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He also recommended that the complaint
be dismissed insofar as it alleges other unfair labor
practices not specifically found. Thereafter, the
Respondent Unions filed exceptions and amended
exceptions to the Trial Examiner's Decision, a
supporting brief and an amendment to the
supporting brief. The General Counsel filed a brief
in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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 briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations 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
Recommended Order of the Trial Examiner and
hereby orders that the Respondent Unions, United
Mine Workers of America, District 12, and United
Mine Workers of America, their officers, agents,
and representatives, shall take the action set forth in
the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASES'
213
WILLIAM W. KAPELL, Trial Examiner: Cases 38-CP-14,
38-CB-151, 38-CP-15, 38-CB-152, 38-CP-16, and
38-CB-153,2 proceedings under Section 10(b) of the
National Labor Relations Act, as amended, herein called
the Act, were heard in Peoria, Illinois, on October 23 and
24, 1968,' with all parties except Charging Party
Chauffeurs, Teamsters, and Helpers Local Union No. 15,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereafter called
Teamsters), participating pursuant to notice on a
consolidated complaint' issued on September 18 by the
Officer-In-Charge of Subregion 38 of the National Labor
Relations Board, hereafter called the Board, alleging
violations of Section 8(b)(1)(A), 7(A), and 7(C) of the Act
by United Mine Workers of America, District 12
(hereafter referred to as District 12 and jointly with
UMW as the Respondents). The complaint, in substance,
alleges that, in violation of Section 8(b)(1)(A) of the Act,
District 12 since about August 9 has restrained and
coerced the employees of J. O. Lively Construction
Company (hereafter referred to as Lively) and Kelly
Railroad Contractors, Inc. (hereafter referred to as Kelly);
that, in violation of Section 8(b)(7)(A) of the Act, District
12 since about August 15 has threatened to and has
picketed Lively, objects being to force and require Lively
to recognize and bargain with District 12 as the
collective-bargaining representative of its employees,
and/or to force and require said employees to accept
District 12 as their collective-bargaining representative;
and that, in violation of Section 8(b)(7)(C) of the Act,
District 12 on about August 22 threatened to picket Kelly
and, thereafter, on about August 26 picketed Kelly,
objects being to force or require Kelly to recognize and
bargain with District 12 as the collective-bargaining
representative of its employees, and/or to force and
require said employees to accept District 12 as their
collective-bargaining representative; In its duly filed
answer District 12 admitted certain jurisdictional and
factual allegations of the complaint but denied that it is a
labor organization or that it committed the alleged unfair
labor practices. Said answer was also permitted to stand
'The above caption has been amended- to reflect the addition of "United
Mine Workers of America," hereinafter referred to as UMW, as a Party
Respondent pursuant to the General Counsel 's unopposed motion made
during the hearing . The General Counsel also moved to amend the
complaint by adding United Mine Workers of America , Local 7110, as a
Party Respondent , claiming he had been misled by Respondents in his
investigation of the case as to the identity of the alleged violators.
Respondents opposed motion and ruling was reserved. The motion is
hereby denied, said Local neither was served with process nor appeared at
the hearing.
'Consolidated for hearing by order of the Officer-In-Charge for
Subregion 38.
'All dates hereafter refer to the year 1968 unless otherwise noted.
'Based on charges filed on August 12 by International Union of Distract
50 (hereafter called District 50) in Cases 38-CP- 14 and 38-CB-151; on
August 28 by Local 649, International Union of Operating Engineers,
AFL-CIO (hereafter called Operating Engineers ) and Laborers Local 231,
Laborers International Union of North America , AFL-CIO (hereafter
called Laborers) in Cases 38-CP-15 and 38-CB-152 ; and on August 27 and
September 17, respectively, by Teamsters in Cases 38-CP-16 and
38-CB-153.
177 NLRB No. 27
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on behalf of UMW, which, as appears above, was added
as a Party Respondent.
All parties appearing were accorded full opportunity to
be heard, to introduce relevant evidence, to present oral
argument, and to file briefs. Respondents and the General
Counsel filed briefs which have been duly considered. On
the entire record in the cases and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. COMMERCE
At all times material herein, Lively, a West Virginia
corporation with its principal place of business located in
Beckley, West Virginia, has been engaged at Norris,
Illinois, in the construction of a coal-processing facility (a
tipple) of Truax-Traer Coal Company, hereinafter called
Truax. During the past 12 months in the course and
conduct of its business operations, Lively purchased goods
valued in excess of $50,000 which were to be shipped to
and used in a State other than that in which they were
purchased, and also furnished services valued in excess of
$50,000 to customers located outside the State of West
Virginia. Respondents admit, and I find, that, at all times
material herein, Lively has been engaged as an employer
in commerce within the meaning of Section 2(6) and (7) of
the Act.
At all times material herein, Kelly, a Missouri
corporation with its place of business located at St. Louis,
Missouri, has been engaged near Norris, Illinois, in the
construction of a railroad spur connecting the main line of
the C B & Q Railroad with Truax's tipple at Norris,
Illinois, and during the past 12 months in the course and
conduct of its business operations purchased goods valued
in excess of $50,000 located outside the State of Illinois
which were thereafter shipped to jobsites located within
the State of Illinois. Respondents admit, and I find, that
at all times material herein Kelly has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents do not contest, and I find, that UMW, its
Local 7110 and District 50 are labor organizations within
the meaning of Section 2(5) of the Act. The contention,
however, is raised that District 12 is not a labor
organization because it is claimed to be purely an
administrative body in UMW and, therefore, does not fall
within the definition of labor organization set forth in
Section 2(5) of the Act. I find no merit in this contention.
As appears, infra, District 12 is one of the component
divisions or parts of UMW and represents the employees
of UMW locals in the State of Illinois in their grievance
procedure, when such grievances cannot be resolved at
lower levels . It also appears that part of the dues of said
employees in their respective locals is allocated to District
12, which in turn pays the salary of the board member of
District 12 who represents employee-grievants at that
level. Furthermore, the Board has held District 12 to be a
labor organization within the meaning of the Act in
numerous cases.' I, therefore, find that District 12 is a
labor organization within the meaning of Section 2(5) of
the Act.
'See, e .g., United Mine Workers of America , its District 12. et al (Perry
Coal Company), 125 NLRB 1256. In addition , District 12, the
111. THE ALLEGED VIOLATIONS
A. Background
Prior to and at all times material herein, Truax has
been operating a coal mine facility near Norris, Illinois.
Truax, whose employees are represented by Local 7110 of
UMW, is a member of the Illinois Coal Operators
Association and operates its mine pursuant to the
National Bituminous Coal Wage Agreement, which is in
effect between UMW and said Operators Association, and
the Wage Agreement and Working Conditions of District
12. District 12, a division or part of UMW, operates as a
district entity at a level immediately below UMW
throughout the State of Illinois. Its functions consist
primarily of handling labor grievances which cannot be
resolved at lower levels. It has a president and a
secretary-treasurer, who are appointed by the National
Officers of the UMW, and is itself divided into
subdistricts 1, 2, 3, and 4 on a geographical basis. Each
subdistrict has a board member, and in subdistrict 2,
which covers the area in which Truax is located, Edward
Lamm is its board member. His salary is paid to him by
the secretary-treasurer of District 12 which receives its
income from part of the membership dues of the Locals of
UMW in its operating area. Grievances are handled as
follows: In the event that Local 7110 is unable to resolve a
grievance between it and Truax, it is referred to Lamm of
subdistrict 2 for disposition. In the event he is unable to
adjust it, the grievance is then referred to District 12 and,
upon its failure to resolve the matter, it is referred to an
arbitrator for final disposition.
The National Bituminous Coal Wage Agreement
provides, inter alia , in substance that the erection of
stripping and coal loading machinery, the grading, laying,
and ballasting of all tracks to the point where the shovel
begins stripping coal and all other work necessary to
complete the plant to produce and prepare coal, all being
in the nature of construction work, shall be under the
jurisdiction of the UMW. The Wage Agreement provides
further that nothing in this section shall be construed as
depriving the Operator of his right to contract such repair
and/or construction work, with the understanding that the
men employed on such work shall be or will become
members of UMW.
B. The Tipple Construction Project
During the summer of 1968, Truax contracted with
Lively to build a coal tipple on its premises. Prior thereto
and on April 2, Lively had signed an agreement with
District 50 whereby it became bound by the industrywide
collective-bargaining agreement entered into between the
Coal Mine Construction Contractors Association, Inc.,
and District 50 for the period June 1, 1967, to May 31,
1970.
On August 8, James Smith, a field superintendent for
Lively, and several of his employees, members of District
50, arrived at Norris, Illinois, to begin construction of the
tipple for Truax. The following morning, Floyd A. Hobbs,
the president of Local 7110, met with Smith and three of
Respondent , in an ancillary case involving the subject matter herein
brought by the Board in the United States District Court for the Southern
District of Illinois , Northern Division , Civil No. T-3011, for a temporary
injunction specifically admitted in its answer (G.C. Exh 4) that it is a
labor organization within the meaning of Sections 2(5), 8(b), and 10(1) of
the Act
UNITED MINE WORKERS OF AMERICA, DIST. 12
his employees, members of District 50, near Lively's
construction equipment which had been parked in the
vicinity of the construction site. Joe Berta, division
manager of Truax, was also present. Hobbs told Smith
and his employees that the employees would have to join
UMW to work in the tipple because Truax's contract with
United Mine Workers required that any work done on
Truax's premises must be performed by members of
UMW. Smith replied that his employees were already
members of District 50 but Hobbs insisted that they,
nevertheless, would have to become members of UMW.
On Tuesday, August 13, Hobbs and Edward Lamm'
met Smith and four of his employees' where their
equipment had been parked along the road near their
jobsite. Lamm told them not to work until they got
straightened out with the UMW. Smith requested
permission to move the office trailer out to the site and
either Hobbs or Lamm told him not to move it.
On August 15 'Hobbs met Smith at a restaurant in
Norris and asked what he intended to do. Smith replied
that he was going to move his equipment to the jobsite,
but Hobbs told him that he had better not. When Smith
responded that he needed the equipment at the jobsite,
Hobbs stated "if you move it, I'll shut the job down."'
On Tuesday, August 20, Smith, Denny Hurst (a Lively
employee), and Fred Westock, a representative of District
50, called upon Lamm at his home. Three UMW
representatives were also present. They discussed the
problem confronting Lively as to whether or not its
employees would be permitted to work on the construction
job, during which Lamm stated that he would have to
consult Joe Shannon' about the matter and would call him
on the phone. Lamm thereupon withdrew into his house
and reappeared shortly, stating that he had called
Shannon and was told that the Lively employees would
have to join UMW to work on the tipple.
On August 21 Smith moved his office trailer to the
jobsite. The following day he met Hobbs and several men
on the road to the jobsite. Hobbs protested that he had
told him not to move the trailer and, when Smith replied
he had been instructed to do so, Hobbs stated that he was
going to come out and shut the job down. Smith then
went on to the jobsite. About 15 minutes later Lamm and
Hobbs together with about nine men visited the jobsite
where Lamm told Smith that he wanted to talk to his
employees to sign them up with UMW. Meanwhile one of
the unidentified men, accompanying Lamm and Hobbs,
and in their presence, asked the Lively employees who
gave them permission to work. Another of these
unidentified men told the Lively employees "you get your
. off the job." Hobbs also stated that if he had to come
back again to the job he would bring more men.'"
On Friday, August 23, the Lively employees attended a
meeting called by Hobbs and Lamm. Lamm asked
'An International representative of UMW as well as a board member of
subdistrict 2 of District 12.
'Elijah Darnell , Gordy Thompson , Carl Miller , and Denny Hurst.
'The above findings are based upon the forthright credited testimony of
Smith Hobbs equivocated in his testimony, stating at first that he would
shut the job down, and then upon having the question put to him again,
revised his answer by stating he would shut the mine down , not the
construction job.
'An International representative of UMW, and, at all times material
herein , acting president of District 12
"According to the uncontradicted testimony of Lloyd Biswell, an
employee of Kelly, Lamm , in pressuring Kelly's employees to join UMW
(see infra), told them on August 22 that he had had to run District 50 off
the job that morning.
215
whether they wanted to join the UMW and, following a
short discussion among them, they signified their
agreement to do so, signed applications for membership,
and paid their initiation fees and dues.
On the morning of August 26, Smith met Hobbs and
Lamm at a restaurant in Norris where they told him he
could go ahead with his construction job. Upon
proceeding to that job Smith and his employees observed
about 200 men, including Hobbs and Lamm, standing on
both sides of the road about a half a mile from their
construction site. They, however, were not molested and
proceeded to work on their job. During the following few
days similar groups of men appeared at the same place
but the number gradually decreased. Meanwhile Lively's
employees continued working without interference or
hindrance.
C. The Railroad Spur Construction Job
Kelly contracted with the C B & Q Railroad to build
about 5-1/2 miles of track of which about 3-1/2 miles
were to connect Truax's tipple with the C B & Q main
line while the balance of about 2 miles was to consist of
storage track on the railroad right-of-way. Kelly had no
contract with Truax and its employee laborers, operating
engineers , and teamsters are represented by the Laborers,
Operating Engineers, and Teamsters, respectively. By
August 22, about 2 weeks after Kelly had started working
on the track on the premises of Truax, about a third of
the whole job had been completed with ties distributed for
another 2 miles , including a small part of the work on
Truax's premises. On August 22, Lamm in a conversation
with Mac Denny, Kelly's superintendent at the job, stated
that his Company would have to sign a contract with
UMW and all its employees would have to join that
Union. Denny replied that he already was under contract
with the Laborers, Operating Engineers, and Teamsters
and would not sign up with UMW. Lamm thereupon
stated that no work would go on unless he signed up and
that he would have a th usand men out there on the
following morning to see to it unless he complied with his
demand. When Denny then asked if Lamm could furnish
employees to do the work, he replied that he had no
hiring hall and Denny could retain his employees as long
as they joined UMW. Denny, however, declined to sign a
contract. At the conclusion of their conversation and upon
leaving , Lamm threatened at this time to have 250 men
out on the job on Monday if he refused to sign up.
On the following day, Lamm again met with Denny
and asked to speak to his employees to have them join
UMW, and again reiterated his demand about signing a
contract and having the employees join UMW. He also
stated how much the initiation fee and dues would be.
Later that day, after working hours, Lamm came to
Denny's office and once more demanded that he sign up
with UMW. Denny denied having the authority to do so
but volunteered to send a copy of the proposed contract to
his boss who could, if he wished, sign up.
On Monday, August 26, about 7:30 a.m., Denny, upon
visiting the jobsite, observed about 100 cars lining both
sides of the road with about 200 men, including Lamm
and Hobbs, standing around in the vicinity. About 8 a.m.,
Denny again approached the jobsite and saw the same
cars and men. Denny then requested Lamm to come to his
office to discuss the problem. Lamm agreed to come as
soon as he got his committee together and a few minutes
later he and Hobbs and a few other men, members of his
committee, appeared at Denny's office located in a trailer
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the jobsite and Norris. There, Lamm met Mr.
Kelly, the owner of the Company , and demanded that he
sign a contract and have his men join UMW. Denny then
asked whether Lamm would supply the employees for the
job. He declined , stating that he had no hiring hall and
that Denny could recruit the men from any source
provided they joined UMW and paid the initiation fee and
dues . Kelly thereupon decided to shut down the job to
avoid having anyone get hurt , to which Hobbs replied,
"Yes, I guess we decided that for you this morning."
Donald Ziegenbein , McCormack, and Carpenter , business
managers for Laborers , Operating Engineers, and
Teamsters , respectively, were also present at that meeting.
Lamm explained that UMW had a contract with Truax
requiring that work performed on its premises would have
to be done by members of UMW . Ziegenbein replied that
his members were already covered by a union that claimed
jurisdiction over the work involved and would not join any
other union, and McCormack declared that his members
were not allowed to join any other union to do the same
type of work. Later that morning Denny asked Hobbs if
he could move out some equipment from the construction
site to another job and was told "no, we don ' t want you
on that property at all."
On August 28, Denny visited the construction site
where he saw about 100 men , including Lamm and
Hobbs, standing around and again asked Lamm whether
he could move out some of his equipment . Hobbs replied
that he absolutely could not. However, on Wednesday
following Labor Day, Hobbs permitted Kelly employees
to remove some equipment . No track has been laid since
August 26 but Kelly ' s equipment has been removed.
On September 10, the General Counsel for the Board,
obtained a temporary restraining order and, on September
19, a temporary injunction against picketing , threats of
picketing , and related acts by District 12 at the tipple
and/or spur construction jobs.
Respondents' answer admits that they have not been
certified as the collective -bargaining representative of any
of Lively' s or Kelly' s employees, and it was stipulated
during the hearing that neither UMW nor any of its locals
or subdivisions filed a petition for an election under
Section 9(c) of the Act, regarding any of the employees of
Lively or Kelly.
D. Conclusions
1. The 8(b)(7)(A) violations
Section 8(b) of the Act provides inter alias
It shall be an unfair labor practice for a labor
organization or its agents -
(7) to picket or cause to be picketed , or threaten to
picket or cause to be picketed , any employer where an
object thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the
representative of his employees , or forcing or requiring
the employees of an employer to accept or select such
labor organization as their collective bargaining
representative , unless such labor organization is
currently certified as the representative of such
employees:
(A) where the employer has lawfully recognized in
accordance with this Act any other labor
organization and a question concerning
representation may not appropriately be raised under
section 9(c) of this Act.
The complaint alleges that Respondents threatened to
picket and picketed Lively, objects thereof being to force
or require Lively to recognize and bargain with
Respondents as the collective-bargaining representative of
its employees and/or to force or require said employees to
accept Respondents as their collective-bargaining
representative at a time when Lively lawfully recognized
District 50, and a question concerning representation
could not appropriately be raised under Section 9(c) of the
Act.
The record clearly establishes that Respondents
demanded on several occasions that unless Lively's
employees became members of UMW they would not be
permitted to work on the tipple. At first, this ultimatum
was given by Hobbs. Thereafter, Lamm, either alone or
accompanied by Hobbs , made demands to that effect,
which were accompanied by threats to shut down the job
unless Lively's employees complied. To enforce these
threats, they warned that they would bring more men to
the jobsite and shut it down. Lamm also informed Lively's
superintendent and a representative of District 50 that Joe
Shannon, an International representative of UMW and
president of District 12, joined in his demand that Lively's
employees would not be permitted to work on the tipple
unless they joined UMW. The threats were so effective
that no attempt was made to work on the tipple. On
Friday, August 23, Lively's employees succumbed to the
demands of Lamm and Hobbs, agreed to join UMW, and
became members by payment of initiation fees and dues.
On Monday, August 26, they were told they could
proceed with the tipple work and they began working on
that day without hinderance or obstruction , and despite
the large aggregation of miners massed near the spur
construction project, which they had to pass on the way to
the tipple project. This display of force undoubtedly
convinced Lively's employees that they had had no
alternative but to join UMW if they desired to work on
the tipple.
Contentions of Respondents
Respondents deny that Lively's contract with District
50 bars raising a question concerning representation of
Lively' s employees under Section 9(c) of the Act. They
assert that the contract did not encompass the tipple job
because ( 1) it was negotiated prior to the existence of that
job and by its terms does not purport to cover new
operations , and (2) the distance from Norris , Illinois, to
Beckley, West Virginia (the home office of Lively),
precludes the accretion of any of the tipple construction
employees to the Beckley unit of Lively's employees. I
find neither contention applicable herein . The contract
with District 50 in article I specifically covers construction
work in all of the United States, and article XIV, section
10, makes provision for traveling expenses for employees
who travel more than 50 miles from one project to
another . Moreover , the inherent nature of the work in
actual practice precludes confining the contractor's
operation to one location and contemplates that
construction jobs would be undertaken where available.
Nor could the contract be reasonably or realistically
construed to require a new contract for every job
undertaken following its negotiation . I find further that
Lively properly recognized District 50 as the exclusive
bargaining representative of its employees pursuant to
their contract . The Board has taken the position that
UNITED MINE WORKERS OF AMERICA, DIST. 12 217
where an employer recognizes a union and executes a
collective-bargaining agreement with it, a rebuttable
presumption arises that the union represents a majority of
the employees, Shamrock Dairy, Inc., 119 NLRB 998,
1002, enfd . sub nom . International Brotherhood of
Teamsters, et al. v. N.L.R.B. 280 F.2d 665 (C.A.D.C.),
cert . denied 364 U.S. 892 . No evidence was introduced to
rebut that presumption . In such circumstances the Board
has held that effective collective bargaining , such as the
one involved herein , constitutes a bar to the selection of
an outside union as the bargaining representative of the
employees."
Respondents also contend that no threats were made to
Lively and its employees to picket their project, nor did
such picketing materialize . As related above , it appears
that Respondents through Hobbs and Lamm clearly
impressed upon Smith and his employees that they could
not begin working on the tipple unless and until they
became members of UMW. The unmistakable import of
Respondents ' contracts with Lively and its employees
convinced them that Respondents had the manpower and
would use it to keep them off the job until they
capitulated. I conclude that Respondents' activities
constituted a threat to picket within the meaning of
Section 8(b)(7)(A), and that the threat continued until
Lively's employees joined UMW. I find, however,
contrary to the General Counsel, that he failed to
establish by the preponderance of the evidence that the
Respondents actually resorted to picketing of Lively's
project to accomplish their objective."
Respondents also claim that their contract with Truax
gave UMW exclusive jurisdiction over the construction
work to be done by Lively and Kelly on Truax's premises,
" and accordingly assert that such work could be
performed only by members of UMW, which is all that
they sought to effectuate in their dealings with Lively,
Kelly, and their employees . It appears , however, that
Section 8 (b)(7) provides that threats to picket and/or
picketing are proscribed and in violation of said section in
the circumstances set forth therein . As found herein,
Respondents engaged in those activities for proscribed
objects, and consequently committed unfair labor practices
within the meaning of that section . I, therefore, conclude
that Respondents may not avail themselves of their
contract with Truax to defend or justify their violative
conduct. "
Based on the foregoing findings and reasons , and on the
record as a whole, I find that the threats of Respondents
to restrain Lively's employees from working in order to
obtain their union affiliation violated Section 8(b)(7)(A)."
2. The 8(b)(7)(C) violations
Section 8(b) of the Act provides:
It shall be an unfair labor practice for a labor
organization or its agents -
(7) to picket or cause to be picketed, or threaten to
picket or cause to be picketed, any employer where an
object thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the
representative of his employees, or forcing or requiring
the employees of an employer to accept or select such
labor organization as their collective bargaining
representative, unless such labor organization is
currently certified as the representative of such
employees:
* * * * *
(C) where such picketing has been conducted
without a petition under section 9(c) being filed
within a reasonable period of time not to exceed
thirty days from the commencement of such
picketing ....
The complaint alleges that following Respondents'
threats on August 22 to picket Kelly's construction job,
they commenced picketing en masse on August 26 and
thereafter at its jobsite and field offices, objects thereof
being to force or require Kelly to recognize and bargain
with Respondents and/or to force or require Kelly's
employees to accept Respondents as their
collective-bargaining representative in violation of Section
8(As)(rrelated above, Lamm threatened on several
occasions to stop Kelly from proceeding with its
construction work by stationing a large group of men at
the jobsite. On August 26, about 100 cars were parked on
both sides of the road on Truax's premises or on the road
in the vicinity of Kelly's construction job with about 200
men, including Lamm and Hobbs , standing around or
sitting in the cars. Thereafter, on the following days
similar groups of cars and men appeared at the
construction site but in decreasing numbers. On
September 10, a temporary restraining order , subsequently
supplanted by a temporary injunction , against picketing,
threats of picketing, and related acts by Respondent
District 12 at the tipple and/or spur construction job were
issued, and thereafter no cars or men were observed at the
construction site.
"See Local 3, International Brotherhood of Electrical Workers,
AFL-CIO (Darby Electric Corporation ), 153 NLRB 717, 723, and cases
cited therein.
"In reaching this conclusion I find that the appearance on August 22 of
Lamm , Hobbs , and about nine men at the jobsite shortly after Smith and
his employees arrived there did not constitute picketing within the meaning
of that concept.
"Respondents confined their demands insofar as Kelly ' s work was
concerned only to that portion of the spur to be constructed on Truax's
premises.
"In fact, the validity of the alleged applicable provisions of the UMW
contract appears highly questionable. "The touchstone is whether the
agreement or its maintenance is addressed to the labor relations of the
contracting employer vis-a-vis his own employees " National Woodwork
Manufacturers Association, et at, v. N.L R B, 386 U.S. 612, 645.
Respondents herein engaged in activities designed to obtain the union
affiliation of the employees of Lively and Kelly and a bargaining
agreement from Kelly; employers who were not parties to the UMW
contract.
Contentions of Respondents
Respondents claim that no proof was adduced to show
threats to picket or picketing within the meaning of
Section 8(b)(7)(C). I find that subsection (C) proscribes
picketing only and has no reference to threats to picket.
Thus, threats to picket per se, would not fall within the
proscription of that subsection , and accordingly would not
constitute a violation even if proven . However, such
threats may be considered in identifying the character of
the activities which were subsequently carried out in
implementing those threats ." The findings herein clearly
establish that the threats were to mass a large number of
men to prevent Kelly's employees from working on the
"Nor would the UMW contract absolve Respondents from liability
under Sec . 8(b)(7)(C), discussed infra.
""In determining whether picketing has recognition or bargaining as an
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spur to compel Kelly to recognize UMW and its
employees to join that Union. Respondents assert that the
assembling of a large group of miners , members of Local
7110, near Kelly's construction site on August 26 and the
following days until enjoined on September 10 by the
United States District Court did not constitute picketing
within the meaning of the Act, because no picket signs or
placards were carried or displayed and the miners simply
congregated around or in their parked cars. Thus, the
question arises as to whether picket signs or placards and
the patrolling of a particular area are essential ingredients
of picketing within the meaning of Section 8 (b)(7). The
term "picketing" is neither described nor delineated in the
Act. The definition of the terms "picket" and "picketing"
as defined in Black ' s and Bouvier ' s law dictionaries do not
mention the use of picket signs or placards or the
movements of the pickets other than being posted or
stationed at a particular place. In N.L.R.B. v. Local 182,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Woodward
Motors), 314 F.2d 53, 58 (C.A. 2), the Court quoted
Webster ' s New International Dictionary (2d Ed.) as
defining the verb "picket" as meaning "to walk or stand
in front of a place of employment as a picket ," and the
noun as "a person posted by a labor organization at an
approach to the place of work .. ," and concluded that
any particular movement by the picket was not a
necessary ingredient of picketing . In none of these
definitions is the patrolling or the carrying of signs
considered a requisite component part of picketing. The
purpose of picketing in labor disputes is to convey a
message which is usually intended to influence the conduct
of certain persons to stay away from work or to boycott a
product or business, and is frequently accomplished, as
was done herein, by posting individuals at the approaches
to a place of work.
The record shows that Respondents, in their
confrontations with Kelly and its employees, emphatically
and inescapably impressed upon them that they would not
be permitted to work unless and until they joined UMW
and Kelly signed a contract with that union . When Kelly
and its employees balked at complying, they were warned
that sufficient men would show up to enforce
Respondents' demands . Respondents left no doubt as to
their intentions when about 200 men, including Hobbs and
Lamm, appeared at the jobsite the following workday.
Kelly and its employees knew well why they were there
and also realized that they were ready and able to prevent
the comparatively few employees of Kelly from working.
To avoid any injuries Kelly closed the job down and
refrained from working even to the extent, at first, of
removing its equipment from the jobsite . There was no
need for Respondents to display signs or to patrol a
specific area in order to inform those who were to be
influenced as to the purpose of their presence at the
jobsite . Under the circumstances herein , I find and
conclude that Respondents ' activities at the jobsite
constituted picketing for objects of forcing or requiring
Kelly to sign a collective-bargaining agreement with
Respondents as the representative of its employees, and its
employees to accept or select Respondents as their
collective-bargaining representative.
objective , the Board scrutinizes all evidence in the case , including events
which precede as well as those which accompany picketing ." Local 345,
Retail Store Employees Union, et al (Gem of Syracuse, Inc), 145 NLRB
1168, 1172
The picketing herein began on August 26 and was
enjoined on September 10 by the United States District
Court. The Act requires that there be picketing "without a
petition being filed under Section 9(c) within a reasonable
period of time not to exceed 30 days from the
commencement of such picketing." The Board has held
that a reasonable time to be 30 days unless there are
unusual circumstances involved in connection with the
picketing, such as threats or acts of violence." The mass
picketing following threats to Kelly and its employees that
they would not be permitted to work unless they acceeded
to Respondents' demands was calculated to instill a fear
of potential violence, which was wholly effective in
intimidating both Kelly and its employees to stay away
from the job. Kelly was fully warranted in concluding that
any attempts to continue working on the job would
inevitably have resulted in violence on the picket line."
I, therefore, conclude that, although Respondents
picketed for less than 30 days, they, nevertheless, in the
circumstances herein, picketed for proscribed objects for
more than a reasonable period of time without filing a
petition under Section 9(c) in violation of Section
8(b)(7)(C)."
3. The 8(b)(1)(A) violation
The complaint alleges that Respondents also violated
Section 8(b)(1)(A) of the Act. That section proscribes
labor organizations or their agents from restraining or
coercing employees in the exercise of the rights guaranteed
in Section 7. The facts related above clearly show that
Respondents ' threats and/or picketing not only tended to
restrain and coerce the employees of Lively and Kelly in
the exercise of their statutory rights , but actually
succeeded in doing so, which is more than required to
establish a violation of that section . As the Board held in
Grundy Mining Company , 146 NLRB 176, 181, fn. 7:
It is sufficient to establish a violation of that section
[8(b)(1)(A)] to show that the conduct of Respondent
union had a tendency . . . to restrain or coerce the
Grundy employees , without requiring them to attempt
to get to work at the risk of their lives or even lesser
peril . The Act does not require proof that coercive
conduct had its desired effect, N.L.R.B. v. Wilbur H.
Ford, d/b/a Ford Brothers , 170 F.2d 735, 738 (C.A. 6).
[Emphasis supplied.]
I, therefore , find and conclude that Respondents
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.20
"See District 65. Retail, Wholesale & Department Store Union,
AFL-CIO (Eastern Camera & Photo Corp ), 141 NLRB 991, where the
Board adopted the rationale in Cuneo v. United Shoe Workers of
America. AFL-CIO, et al (Q T. Shoe Mfg Co), 181 F. Supp. 324
(D C NJ ), in which only 10 days of picketing was held to constitute a
reasonable time because of the unlawfully aggressive nature of the
picketing and its coercive effect on the employees involved
"A conclusion borne out in many Board cases involving UMW pickets
See, e .g., United Mine Workers of America and United Mine Workers of
America. District 2 (Solar Fuel Company). 170 NLRB No 178, and
United Mine Workers of America, et al, (Mears Coal Company), 173
NLRB No. 100
"See District 30, United Mine Workers of America (Terry Elkhorn
Mining Company, Inc), 163 NLRB No. 81
"Although Respondents in their brief do not challenge the agency of
Lamm and Hobbs, some question was raised during the hearing as to the
latter' s agency In view of their close cooperation and collaboration in the
violative incidents related herein , and the failure of Lamm, an admitted
officer of District 12 and an International representative , to disavow any of
UNITED MINE WORKERS OF AMERICA, DIST. 12
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The Respondents' activities set forth in section III,
above, occurring in connection with the substantial
relations in trade, traffic, and commerce of Lively and
Kelly among the several States, tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
Upon the foregoing findings of fact and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent Unions and District 50 are labor
organizations within the meaning of Section 2 (5) of the
Act.
2. Lively and Kelly are engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
3. By coercing and restraining the employees of Lively
and Kelly in the exercise of their statutory rights, by
threats and/or picketing to prevent them from working,
Respondents have engaged in unfair labor practices within
the meaning of Section 8(a)(1)(A) of the Act.
4. By threatening to picket Lively' s construction project
to prevent its employees from working with an object of
forcing or requiring those employees to accept or select
them as their collective -bargaining representative at a time
when Respondents were not currently certified as such
representative and Lively had lawfully recognized another
labor organization as the collective-bargaining
representative of its employees and a question concerning
representation could not be raised under Section 9(c) of
the Act, Respondents have engaged in unfair labor
practices within the meaning of Section 8(b)(7)(A) of the
Act.
5. By picketing , or causing to be picketed , Kelly, where
objects thereof were to force or require Kelly to recognize
or bargain with Respondents as the collective-bargaining
representative of its employees and to force or require said
employees to accept or select Respondents as their
collective -bargaining representative without a petition
under Section 9(c) of the Act being filed within the
reasonable period of time from its commencement of such
picketing , Respondents engaged in unfair labor practices
within the meaning of Section 8(b)(7)(C) of the Act.
6. Respondents have not engaged in any unfair labor
practices not specifically found to have been established
by the evidence.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have violated Section
8(b)(1)(A) and 8(b)(7)(A) and (C) of the Act, I shall
recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the employees of Lively were
unlawfully coerced into joining and paying initiation fees
and dues to Respondents, I shall recommend that
Respondents be ordered to refund to those employees such
sums which were so paid with interest at 6 percent.
Hobbs' solo activities , I find that both of them were acting as agents of
Respondents , and their activities are attributable to them.
RECOMMENDED ORDER
219
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
hereby recommended that United Mine Workers of
America, District 12 and United Mine Workers of
America, their officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Coercing or restraining the employees of J.O. Lively
Construction Company or Kelly Railroad Contractors,
Inc., in the exercise of their rights guaranteed them by
Section 7 of the Act by threats to picket and/or picketing,
or in any like or similar manner, to prevent them from
working on their respective construction jobs on the
premises of Truax-Traer Coal Company within the
meaning of Section 8(b)(1)(A) of the Act.
(b) Threatening to picket J.O. Lively Construction
Company where an object thereof is forcing or requiring
the employees of J.O. Lively Construction Company to
select or accept Respondents as their collective-bargaining
representative, in circumstances violative of Section
8(b)(7)(A) of the Act.
(c) Picketing, or causing to be picketed, Kelly Railroad
Contractors, Inc., where an object thereof is to force or
require said employer to recognize or bargain with
Respondents as the representative of its employees, or to
force or require employees of said employer to accept or
select Respondents, or any other labor organization, as
their collective-bargaining representative, in circumstances
violative of Section 8(b)(7)(C) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Refund to each of the employees of J.O. Lively
Construction Company the moneys unlawfully exacted
from them in the form of initiation fees and dues paid to
Respondents when coerced into joining United Mine
Workers of America, as set forth in the section of this
Decision entitled "The Remedy."
(b) Post at the business offices and meeting places, if
any, of United Mine Workers of America, located within
the territorial jurisdiction of United Mine Workers of
America, District 12, and in all business offices and
meeting places of said District 12, copies of the attached
notice marked "Appendix."" Copies of said notice, on
forms provided by the Officer-In-Charge for Subregion
38, after being duly signed by an official representative of
each Respondent, shall be posted by said 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
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Furnish to the Officer-In-Charge for Subregion 38
signed copies of said notice for posting by Truax-Traer
Coal Company, J.O. Lively Construction Company, and
Kelly Railroad Contractors, Inc., if willing, in places
where notices to their respective employees are
customarily posted.
(d) Notify the Officer-In-Charge for Subregion 38, in
writing , within 20 days from the receipt of this Decision,
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what steps have been taken to comply herewith."
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
..In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Officer- In-Charge for
Subregion 38, in writing , within 10 days from the date of this Order, what
steps Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS OF
AMERICA, DISTRICT 12 AND UNITED MINE WORKERS OF
AMERICA
Pursuant to the Recommended Order of a Trial
Examiner 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 coercethe employees of J.O.
Lively Construction Company or Kelly Construction
Contractors, Inc., by threatening to picket and/or by
picketing to prevent their employees from entering on
the premises of Truax-Traer Coal Company in order to
perform work for their respective employers ; or in any
other like or similar manner coercing the employees of
said employers in the exercise of their statutory rights
within the meaning of Section 8(b)(1)(A) of the Act.
WE WILL NOT threaten to picket J.O. Lively
Construction Company where an object thereof is to
force or require employees of said employer to accept
or select us, or any other labor organization , as their
collective-bargaining representative, in circumstances
violative of Section 8(b)(7)(A) of the Act.
WE WILL NOT picket, or cause to be picketed, Kelly
Railroad Contractors, Inc., where objects thereot are to
force or require said employer to recognize or bargain
with us as a representative of their employees, or to
force or require employees of said employer to accept
or select us, or any other labor organization , as their
collective-bargaining representative , in circumstances
violative of Section 8(b)(7)(C) of the Act.
WE WILL refund to each of the employees of J.O.
Lively Construction Company the money paid by them
in the form of initiation fees and dues upon being
coerced into joining United Mine Workers of America.
Dated By
Dated By
UNITED MINE WORKERS OF
AMERICA, DISTRICT 12
(Labor Organization)
(Representative) (Title)
UNITED MINE
WORKERS OF
AMERICA
(Labor Organization)
(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 Subregional Office, Fourth
Floor, Citizens Building , 225 Main Street , Peoria , Illinois
61602, Telephone 309-673-9061, Extension 282.