Local Union No. 6281, United Mine Workers of America

392 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD 1. Shall not : (b) Refuse to bargain collectively with Safeway for the employees in the unit described in paragraph numbered IV of the stipulation lit Case No. 20-CB-46, by insisting or demanding, as a condition to such bargainingi•.tliat Safetivay bargain coiectively.for location tmanagers• or other supervisory employees: of Safeway within the meaning of Section 2 (11) of the Act, and In Case No. 20-CB-47, in respect to paragraph 1 (b) thereof, so that the same shall read as follows: Retail Clerks International Associa- tion, A. F. of L., and Retail Clerks Union, Local 839: 1. Shall not : (b) Refuse to bargain collectively with Safeway for the employees in the unit described in paragraph numbered IV of the stipulation in Case No. 20-CB-47, by insisting or demanding, as a condition to Such bargaining, that Safeway bargain collectively for location managers or other supervisory employees of Safeway within the meaning of Section 2 (11) of the Act, and In Case No. 20-CB-60, in respect to paragraph 1 (b) thereof, so that the same shall read as follows : Retail Clerks International Associa- tion, A. F. of L., and Retail Clerks Union, Local 1532: 1. Shall not : (b) Refuse to bargain collectively with Safeway for the employees in the unit described in paragraph numbered IV of the stipulation in Case No. 20-CB-60, by insisting or demanding, as a condition to such bargaining, that Safeway bargain collectively for location managers or other supervisory employees of Safeway within the meaning of Section 2 (11) of the Act. MEMBER PETERSON took no part in the consideration of the above Second Supplemental Decision and Amended Orders. LOCAL UNION No. 6281, UNITED MINE WORKERS OF AMERICA and RUFUS M. TACKETT AND M. L. MULLINS. Case No. 9-CB-95. July 30, 1952 Decision and Order On November 29, 1951 , Trial Examiner Albert Wheatley issued his Intermediate Report in the above-entitled proceeding , finding that the 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 copy of the In- termediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended that the complaint be dismissed 100 NLRB No. 64. LOCAL. UNION NO. 62,81, UNITED MINE' WORKERS OF AMERICA 393 with respect to such allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs, and the Respondent, with the permission of the Board, filed a reply brief. The Respondent has also requested oral argu- ment. As the record and the exceptions and briefs, in our opinion3 adequately present the issues and the positions of the parties, this request is hereby denied. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. 1. We agree with the Trial Examiner that the Respondent did not violate Section 8 (b) (2) of the Act. As found by the Trial Examiner, there is no evidence that the actions of the Respondent, in seeking preference for the laid-off employees at mine No. 214, were governed by considerations of union membership, or that such preference was in any way conditioned upon union membership, or the enforcement of any obligation or incident of such membership.2 The evidence establishes, rather, that the Respondent's actions were predicated solely upon the laid-off employees' alleged contractual rights to reemploy- ment at mine No. 214. As meeting these demands of the Respondent would, in our opinion, clearly not contravene the provisions of Section 8 (a) (3), it follows that the actions of the Respondent in making such demands do not violate Section 8 (b) (2).3 The mere fact that the employees involved in this controversy were represented by two differ- ent local unions and the laid-off employees were at one time members of the Respondent does not, under the circumstances of this case, serve to bring the Respondent's conduct within the prohibition of Section 8 (b) (2). 2. Although we have found that the Respondent's conduct in seek- ing to establish alleged contractual rights for the idle panel at mine No. 214 did not violate Section 8 (b) (2), we nonetheless find that some of the methods used by it were outside the permissible limits of the Act and thus infringed upon the rights guaranteed employees in Sec- ' We find without merit the Respondent's exceptions to the Trial Examiner 's rulings (1) denying the Respondent 's motion to strike certain alleged hearsay testimony , and (2) granting the General Counsel's motion to correct the transcript As to (1), the testimony to which the Respondent objects was concerned principally with background evidence, and none of it forms the basis of any of our findings herein. As to (2), the corrections to which the Respondent objects involved arguments made by the General Counsel during the course of the hearings : accordingly, the Respondent could not be prejudiced thereby. ' Sub Grade Engineerin0 Company, 93 NLRB 406 , and Del E. Webb Construction Com- pany, 95 NLRB 337, relied on by the General Counsel, are therefore clearly distinguishable. 8 Firestone Tire and Rubber Company, 93 NLRB 981 , 984; National Union of Marine Cooks and Stewards (Pacific American Shipowners Association ), 90 NLRB 1099, 1100-1102. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 7. It is clear that the Respondent in resisting the Company's transfer plans was engaging in concerted activity within the meaning of the Act. , It is also equally clear that the transferees from mine No. 207, in reporting to work at mine No. 214, were exercising their right, guaranteed in Section 7, to refrain from joining in the Respondent's concerted activity. We therefore agree with the Trial Examiner that the Respondent violated Section 8 (b) (1) (A) of the Act by its con- duct in restraining or coercing the transferees in the exercise of those rights.4 We base our finding, however, solely upon the following conduct, all of which occurred on June 5, 1950: 5 • (a) Mine committeeman Stidham's threat that force would be used to make the transferees leave, if they did not leave voluntarily. (b) The action of the crowd in surrounding the transferees and cut- ting them off from the lamphouse, when considered in the context of Stidham's contemporaneous threat.' (c) Stidham's statement that the transferees could not get a lamp and were not going to work, which we find impliedly contained a threat of violence when considered in the context of Stidham's expressed threat and the action of the assembled crowd.7 * International Longshoremen's and Warehousemen's Union, C. I. 0. et al. ( Sunset Line and Twine Company ), 79 NLRB 1487 , 1504. Contrary to our dissenting colleague's ap- praisal of the record in this case , we find in agreement with the Trial Examiner that by the conduct which we have found violated Section 8 (b) (1) (A), the Respondent sought to force the transferees to join in its concerted activities . This situation is fundamentally the same as any in which strikers seek to force nonstrikers-for example, replacements- to refrain from working , and thereby join their strike , even though a clear objective of the strike might be to secure a contract giving certain lawful advantages to the strikers over the replacements , such as greater seniority rights based on greater length of service. Moreover, that the conduct involved in this proceeding may, in the words of our dissenting colleague, at best be considered as part of "a jurisdictional dispute" does not, In our opinion, remove such conduct from the purview of Section 8 (b) (1) (A). See National Union of Marine Cooks and Stewards, et al. ( Irwin-Lyons Lumber Company ), 87 NLRB 54, In which the Board found a violation of Section 8 (b) (1) (A ) in conduct arising out of the same situation which the Board majority , in an earlier proceeding pursuant to Section 10 (k) of the Act (National Union of Marine Cooks and Stewards, et al. (Irwin-Lyons Lumber Company ), 82 NLRB 919 ), had held constituted "a jurisdictional dispute" within the meaning of Section 8 (b) (4) (D ) of the Act. 5 We are unable to find any threat of violence or other restraint or coercion , either ex- pressed or Implied, in Recording Secretary Lundy's statement on June 4, 1950 , Financial Secretary Quillan's statement of June 5, 1950, erroneously attributed by the Trial Exam- iner to mine committeeman Boggs, and President Dillard's statement on July 24 , 1950, all to the effect that the transferees would not be able to work ; nor do we find any such threat in Lundy's June 4 prediction of possible friction . Although on July 24 certain unidentified individuals allegedly made statements which under other circumstances we might have found to be coercive, the Respondent was relieved of any responsibility for such statements by President Dillard's immediate repudiation of any threats of violence contained therein. See National Union of Marine Cooks and Stewards et al. (Irwin -Lyons Lumber Company), 87 NLRB 54 . And in the absence of any other restraint or coercion on that occasion, we find that the mere presence of a group of men on July 24 did not amount to restraint or coercion within the meaning of the Act. Perry Norvell Company, 80 NLRB 225, 242. 6Local No 1150 , United Electrical, Radio d Machine Workers of America, et al. (Cory Corporation ), 84 NLRB 972. 1 Randolph Corporation, 89 NLRB 1490. LOCAL UNION NO. 6281, UNITED MINEWORKERS OF AMERICA 395 We reject the Respondent's contention that it is not responsible for the foregoing conduct. It is clear from the record that the Respondent had determined to resist the Company's transfer plans, and that Stid- ham, whose duties as mine committeeman included participating in grievance proceedings, had participated in discussions with company officials in furtherance of that objective. Under these circumstances, we find that Stidham was the Respondent's agent when he acted as one of its spokesman on June 5, in furtherance of its objective.8 Moreover, President Dillard, who was present on this occasion, and whose author- ity included exercising general supervision over the Respondent's affairs,° took no action to repudiate any of such conduct. We find, therefore, that the Respondent's liability for that conduct is clearly established 10 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local Union No. 6281, United Mine Workers of America, its officers, agents, representa- tives, successors, and assigns, shall : 1. Cease and desist from : (a) Restraining or coercing employees of Consolidation Coal Com- pany, Kentucky Division of Pittsburgh Consolidation Coal Company, its successors or assigns, by threats of force or violence, or in any other manner, in the exercise of their rights guaranteed in Section 7 of the Act, including the right to refrain from engaging in such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at its business office and meeting hall, and in other con- spicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto and marked "Appendix A." 11 Copies of said notice, to be furnished by the Re- gional Director for the Ninth-Region, shall, after being duly signed by an official representative of the Respondent, be posted immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. ' Local No 1150, United Electrical, Radio & Machine Workers of America, et at. (Cory Corporation), supra. g Randolph Corporation, supra. 10 National Union of Marine Cooks ana Stewards, et at. (Irwin-Lyons Lumber Company), supra, International Longshoremen's and Warehousemen's Union, C. I. 0 , et at. (Sunset Line and Twine Company), supra. 11 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 "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Mail to the Regional Director for the Ninth Region signed copies- of the notice attached hereto and marked "Appendix A" for posting, the Company willing, in places where notices to employees of the Company employed in the vicinity of Jenkins, Kentucky, includ- ing employees at the Company's mines No. 207 and No. 214, are cus- tomarily posted. Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed as provided in-paragraph 2 (a) of this Order, be forthwith returned to-the Regional Director for posting. (c) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED , that except as otherwise found herein the complaint be, and it hereby is, dismissed. MEMBER MURDOCH, concurring in part and dissenting in part: I agree with the majority that the Respondent did not violate Section 8 (b) (2) of the Act in seeking job preference for the. laid-off employ- ees at mine No. 214. This is so because the record reveals that the Respondent's attempt to cause the Employer to give jobs to these em- ployees rather than to the transferees from mine No. 207 had nothing remotely to do with the encouragement or discouragement of union membership of these latter employees. Both groups of employees, it is clear, were already well-organized, disciplined union members, ef- fectively represented by their respective local organizations and acting only through those organizations. The controversy here involves nothing more than a dispute between two locals over the assignment of some newly created jobs. The interorganizational nature of this dis- pute is illustrated by the fact that one of the locals appealed to their parent International. That organization investigated and issued a decision in the matter, a decision to which the Respondent apparently wbuld not yield. Section 8 (b) (2), as the majority find, does not apply to this type of situation. For much the same reasons, I believe, contrary to the majority, that Section 8 (b) (1) (A) does not apply. It seems to me a strained interpretation of the facts in this case to find, as the major- ity do, that the transferees were exercising their right to refrain from joining in the Respondent's concerted activity. Normally, employees engage in concerted activity to secure some benefit from their em- ployer. Other employees may be satisfied to continue or begin work- ing without that benefit. Section 8 (b) (1) (A) protects the latter from restraint or coercion by the former. Here, however, there is no question of employees siding with the Employer and refusing to make ,common - front with other employees against the Employer. The Re- spondent certainly did not expect the transferees to join in the de- LOCAL UNION NO. 6281, UNITED MINE' WORKERS OF AMERICA 397 viand for their own liquidation. The demand in this case was the .very essence of a dispute between two labor organizations and, in my opinion, had nothing to do with the concerted activities of either. The legislative history is quite clear with regard to Section 8 (b) (1) (A). Those responsible for the passage of the- Act were con- cerned primarily with evidence that unions, sometimes through vio- lence and intimidation, had forced employees to join a labor organiza- tion during strikes and organizational campaigns? With the ex- ception of the term "interfere with," which was omitted from the final version of Section 8 (b) (1) (A), this section of the Acct was intended to parallel the requirement in Section 8 (a) (1) that an employer remain completely neutral in matters relating to the union activities of its employees 13 Thus, an employee, within certain statutory limi- tations, is free to join or not to join a union, to engage in a strike or not to engage in it, to speak for or against the union, and, in general, to be free from union as well as employer duress in participating or not participating in union activities l4 I can see no issue here relating' to the union. activities of the trans- ferred members of Local 5787. Nor can I relate the alleged threats of the Respondent to an attempt on its part to force these employees to join it in a program of concerted activities "for the purposes of collective bargaining or other mutual aid or protection." On the con- trary, I think it clear that these two labor organizations were engaged in a struggle that may, at best, be termed a jurisdictional dispute. Whether or not this case could have been tried under other applicable sections of the Act, it is clear to me, and I would find, that the Re- spondent's conduct was not calculated to and did not result in a de- privation of employee rights under Section 7 of the Act. I would dismiss the complaint in its entirety. MEMBER STYLEs-took no part in the consideration-of the above De- cision and Order. Appendix A NOTICE TO ALL MEMBERS OF LOCAL UNION No. 6281, UNITED MINE WORKERS OF AMERICA AND TO ALL EMPLOYEES OF CONSOLIDATION COAL COMPANY, KENTUCKY DIVISION OF PITTSBURGH CONSOLIDATION COAL COMPANY, EMPLOYED IN THE VICINITY OF JENKINS, KENTUCKY Pursuant to a 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: 12 Supplemental Views, Senate Report No 105, on S 1126, page 50; 93 Congressional Record 4136 , April 25, 1947; Ibid, page 4142; Ibid, page A2378, May 13, 1947 ; Ibtid, page 7001, June 12, 1947. 13 Ibid, page 4136, April 25, 1947 ;-Ibid, page 7306, June 20, 1947. " See Sunset Line & Twine Company, 79 NLRB 1487; Smith Cabinet Manufacturing Co., Inc., Si NLRB 886. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE • WILL NOT restrain or coerce employees of CONSOLIDATION COAL COMPANY, KENTUCKY DIVISION OF PITTSBURGH CONSOLIDA- TION COAL COMPANY, its successors or assigns, by threats of force or violence, or in any other manner,.in.the.exercise of their rights guaranteed'in,Section 7 of-the'Act, including the right to refrain from engaging in such activities. LOCAL UNICN No. 6281, UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated ----------------- By ---------------------------------=- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CAGE - Upon a complaint and answer duly filed, the above-entitled matter came on for hearing before the undersigned Trial Examiner on August 20, 21, 22, and 23, 1951, and on September 21, 1951. The complaint alleges, and the answer denies, that since on or about May 29, 1950, Local Union No. 6281, United Mine Workers of America, herein called Respondent, committed unfair labor practices proscribed by Section 8 (b) (1) (A) and 8 ( b) (2) of the National Labor Relations Act, as amended , herein called the Act. In substance, the complaint (as amended at the hearing) alleges that Respondent caused or attempted to cause Consolidation Coal Com- pany, Kentucky Division of the Pittsburgh Consolidation Coal Company, to discriminate against 57 named individuals' by causing or attempting to cause said Company to fail and refuse "to employ the said employees or transfer them from the Company's No. 207 to its No. 214 mine, because of their nonmembership in Respondent Union and because of their membership in another labor organi- zation, and for the purpose of encouraging membership in Respondent Union and discouraging membership in another labor organization." The complaint fur- ther alleges that Respondent restrained and coerced employees of the above- named Company by certain enumerated conduct? 1 T. D. Puckett, Dan Cantrell , Lawrence Mullins, Clint Mahone, Will Brown, Dallas Daniels, Roger Jones , Roy E. Stallard , T. C. Henderson , Charles Gambill , Arlie Hughes, Mart Bolling, Corbit Mullins , Rufus Tackett , Bernie Stewart, J. H. Farmer, John A. Can- trell, M L. Mullins, Gilmer Mullins. Milford Brown , Millard Hughes , L. H. Winchell, James Baker, Jennings Litton, Chester Caudill, J D. Webb, Buster Rose, C. V. Green, Eddie Powers, J. B. Short, Wayne Branham, Ulysus Shelby , It. D. Elkins , B. L. Bevins , Andrew Farley, George Adkins, Isaac Helton, Troy Boggs. H. M. Fleming, Hubert Mullins, Gil Taylor, Arthur Mullins, Farley Gilley, John Toth, Stanley Kisak , Tolly Meade, James I. Short, Manuel Black, Felix Wenix, Hubert Hawks, Steve Toth , Joseph Nash, Eddie Adkins, Donald Hester, J. D. Caldwell , M. C. Witt, Ralph Collins. 2 a. The conduct described above. b. Demonstrations , statements, striking, and other acts and conduct constituting threats of reprisal and force directed against the Company and Its employees, in order to force the Company to fail and refuse to employ certain named employees , or transfer the said em- ployees from the Company 's No. 207 mine to Its No. 214 mine, because of their nonmember- LOCAL UNION NO., 6 2 81 , UNITED MINE, WORKERS OF AMERICA 399 At the close of the hearing, the undersigned took under consideration (1) a notion to strike certain evidence and (2) a motion to correct the transcript of the record. Having further considered these matters the undersigned hereby (1) Denied the motion to strike and (2) grants the motion to correct the transcript. After the close of the hearing, well--prepared briefs were received from counsel for the General Counsel and from counsel for Respondent which have been considered. Upon the entire record in the case and from his observation of witnesses, the undersigned makes the following findings of fact, conclusions of law, and recommendations' Jurisdiction Pittsburgh Consolidation Coal Company, a Pennsylvania corporation, engages in coal mining in Kentucky, West Virginia, Ohio, and Pennsylvania. A division of this Company, known as Consolidation- Coal Company, Kentucky Division of Pittsburgh Consolidation Coal Company, engages in coal mining in Kentucky and the above-entitled proceeding involves employees of this division. Out-of- State purchases for the Kentucky division annually exceed $500,000 and annually this division ships to points outside of Kentucky in excess of $2,000,000 worth of coal. Labor Organization Involved Respondent is a labor organization which represents employees at mine No. 214 of Consolidation Coal Company, Kentucky Division of Pittsburgh Con- solidation Coal Company, hereinafter called the Company. Local Union No. 5787 is a labor organization which represents employees at mine No. 207 of the Company. Mines 207 and 214 are located in the vicinity of Jenkins, Kentucky. However, they are separate and district operating units-under different section super- visors, mined by different personnel, and separate payrolls are maintained. At the time of the controversy herein, there were. approximately -80-90 men em- ployed at mine 207 and approximately 200-225 employed at mine 214. ship in Respondent Union and because of their membership in another labor organization, and for the purpose of encouraging membership in the Respondent Union and discouraging membership in another labor organization. c. Blocking and obstructing entrances to company operations so as to deny to employees ingress to and egress from company operations. d. Attempting to deny and .denying to employees ingress to and egress from company operations by acts .of force, violence, and threats of force and violence of said employees. e. Threatening . to assault employees and assaulting employees, and otherwise threaten- ing to inflict and inflicting bodily harm on employees. f. Informing employees of the Company -that they could not work for the, Company or could not be transferred from the Company 's No. 207 mine to its No. 214 mine, and further informing employees of the Company that Respondent Union and its agents would prevent the said employees from working for the Company or transferring from the Company's No 207 mine to its No. 214 mine. 3 The testimony concerning the incidents involved in this proceeding is conflicting and contradictory and the findings of fact made herein result from the undersigned's attempt to reconcile the evidence and determine what probably occurred . The findings of fact are based upon a consideration of the entire record and observations of witnesses. All evidence on disputed points is not set forth so as not to burden unnecessarily this Report. However, all has been considered and where required resolved . In determining credibility the under- signed has considered inter alias The demeanor and conduct of witnesses ; their candor or lack thereof; their apparent -fairness, bias, or prejudice; their interest or lack thereof ; their ability .to know, comprehend , and understand matters about which they have testified; and whether they have been contradicted or otherwise impeached. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Collective Bargaining History For a number of years conditions of employment at the mines involved hereirt have been subject to certain collective bargaining agreements and interpretations thereof. The pertinent portions of these instruments are described below. The current basic agreement-known as the Big Sandy-Elkhorn Agreement- has existed since 1941. Although this agreement has been amended and sup- plemented at various times, provisions concerning seniority (the provisions in- volved herein) have not been revised. With respect to seniority this agreement provides: - - Seniority Seniority, in principle and practice as it has been recognized in the in- dustry, is not modified or changed by this Agreement. Seniority affecting return to employment of idle employees on a basis of length of service and qualification for the respective positions brought about by different mining methods or installation of mechanical equipment is rec- ognized. Men displaced by new mining methods or installation of new mechanical equipment so long as they remain unemployed shall constitute a panel from which new employees shall be selected. District Conferences shall arrange to incorporate in the several District agreements such rules and formulae as may be necessary to implement and effectuate this provision. It is understood that the panel so constituted shall apply only to an individual mine and it is further understood that the right of a former employee to avail himself of the provisions of this section shall not prevail if the applicant is not qualified to perform the work where a vacancy occurs. There have been two decisions by umpires concerning seniority which the par- ties to the basic agreement have used as a guide in their handling of labor rela- tions pursuant to the basic agreement. These decisions are known as Grievance Case No. 38 and the Walter Hall decision. They are attached hereto as Appendix A and Appendix B, respectively. Since September 1945 the afore-mentioned Company and four locals of the United Mine Workers of America, including Respondent, have been parties to an agreement stating : Jenkins, Ky. September 14, 1945 It Is agreed that whenever vacancies occur, employees in service shall be advanced according to their qualifications. and length of service when not in conflict with the contract provisions, or Federal regulations. Such considerations shall apply to the' various classifications of skilled labor. The Company agrees to recognize the system of transferring men from night shift to day shift, and when such transfers are made, it shall be based on length of service and qualifications. It is recognized that the above is not mandatory according to the terms of the District Agreement but is being adopted to promote a better feeling and good will and mutual understanding between the Company and its employees. Effective September 17, 1945. UNITED MINE WORKERS CONSOLIDATION COAL COMPANY TOM RANEY, G. 0. TARLETON, International Representative General Superintendent LESTER ABEL MACK GARNER H. M. DOTSON LOCAL UNION NO. 6281, UNITED MINE' WORKERS OF AMERICA 401 At the time of the execution of the 1945 agreement it was orally understood : that in the event that the Company decides to transfer a joy crew or any crew working on a machine from one mine to another under two different local unions , that the said crew being transferred and upon presenting transfer cards required by the Company that the crew effected would also transfer their age and time of employment would be recognized in determin- ing their Seniority. During these negotiations there were no "idle panels" at any of the mines in the Jenkins area and the possible existence of an idle panel was not taken into consideration and no agreement was made with respect to the rights of unemployed men at one mine as against transferees with machinery from an- other mine. Layoffs at Mine No. 214 In June 1949, as a result of changes in method of mining, there was a layoff at mine No. 214 which involved a large number of men (more than 100) "in virtually every labor classification " These men were informed that they would be considered for "jobs if and when jobs were available for them" and some of them were thereafter employed, as new employees, at other mines of the above-named Company. The record infers also that some of them were there- after reinstated at mine No. 214. In any event, records kept by the above-named Company reveal that between June 1949 and April 17, 1950, approximately 108 men were laid off at mine No. 214 4 and that as of April 17, 1950, they had not been reinstated. Transfer Plans In May 1950, mine No. 207 was "working out" ' and plans were made by the above-named Company to transfer certain men and machinery from this mine to mine No. 214 where there were sufficient coal reserves to warrant the em- ployment of substantial groups of men to take out coal. It was planned that two joy machines e and sufficient personnel to operate two joy machines' on each of the Company's three shifts would be transferred , and that the men should begin working at mine No. 214 on June 5, 1950 , and July 1, 1950. Early in June 1950, notices were posted on the bulletin board at the bath- house of mine No. 207 listing the names of the men to be transferred and the effective date of their transfer. See Appendix C and Appendix D attached hereto and made a part hereof. These were the men who had worked with the joy machines being transferred. Many individuals in the communities involved were aware of the con- templated transfers from mine No 207 to mine No. 214 and on two or three occasions prior to the time that these transfers were to be made effective, Mor- gan Dillard, president of Respondent and mine committeeman,' Sam Stidham. 4 Two drillers, 12 driller helpers , 13 motormen , 11 brakemen. 2 machinemen, 3 machine helpers, 1 joy operator , 14 joy helpers , 16 miscellaneous inside, 2 timber men , 2 timber helpers, 15 boommen, 1 section trackman, 1 switch cleaner, 1 iecoveryman, 2 pipemen 1 mine examiner, 1 track cleaner, 1 wireman, 1 rock biakeman, 3 utilitymen, 1 Larry operator , 1 slate dumper, and 1 slate dump trackman The coal in the acreage assigned to this mine was diminishing e A joy machine consists of cutting machinery, drills, loading machinery, and shuttle cars 7 A "joy crew" consists of the timber crew, the cutting machine crew, the driller, the shot firer, the loading machine operator, and the shuttle car operators 8 The mine committee consists of three mine workers elected bj the mine workers em- ployed at the mine And it is their responsibility to try to adjust disputes Mine com- mitteemen are officers of the local union concerned. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mine committeeman at mine No. 214, and Arnold Boggs , mine committeeman at mine No. 214, talked to Seth Kegan , mine superintendent at mine No. 214, about these plans, and "expressed their opinion at that time that they didn't feel the men at 214 would let the men transfer over there." At a picnic on June 3, 1950, Charles W. Lundy, president of Local 5787, United Mine Workers of America (the local that represented employees at mine No. 207), in the presence of the other members of the mine committee from mine No. 207 asked Seth Kegan, superintendent of mine No . 214, "what he thought -about it [the transfers ], and how the men felt about 207 men coming over there?" Kegan answered "there was a few of them that were griping, but he didn't think it would amount to anything" and told the men present "to report out to work the following morning, June 5th." On Sunday, June 4, 1950, T. D. Puckett, Ray Stallard , Daniel W . Cantrell, and Tom Henderson (see Appendix C) moved the joy machinery from mine No. 207 to mine No. 214. On this occasion Cantrell and Puckett went to where George Lundy, recording secretary of Respondent, was "timbering." Lundy asked Puckett "What are you doing here , Puckett?" and Puckett replied "I am trying to make a living. What are you doing?" Lundy then said "Probably the same thing. Are you men expecting to come over here tomorrow, or expecting to work over here?" Puckett answered "Yes, we expect to come over. Why? Do you think there will be any friction or not ?" Lundy then said "I know there will. You are not working over here.s10 June 5, 1950, Incident On the morning of June 5, 1950, the men scheduled for transfer and 2 of the mine committeemen from mine 207 reported at mine No. 214. As the transferees (men scheduled for transfer from mine 207 to mine 214) approached the lamp- house they were stopped about 10 feet therefrom and completely surrounded by an unusually large crowd . In addition to the men from mine 207, between 200 and 300 other men were present in this area that morning." A substantial num- ber of those assembled were employees and former employees at mine 214 although there were some strangers also present. Among those present were; Morgan Dillard, president of Respondent , Sam Stidham and Arnold Boggs," aline committeeman from mine 214, and Aster Quillan, financial secretary of Respondent. After the transferees were surrounded , and thus cut off from the lamphouse, Stidham asked what they were "over there for" and, upon being informed "we come to work," told them they would not be permitted to get a lamp and that they were "not going to work " Stidham then asked if the transferees wanted "to get back across the hill (wanted to leave peaceable ) or did we want them to U The membership of Respondent would not agree to this proposed transfer because at the time there was an idle panel of former employees of mine 214 , who had been cut off from work due to a reduction of the working force or other legitimate reasons In June of 1949 and thereafter 10 Lundy testified he did "not make any statement to those No 207 men that day to the effect that we are not going to let you work in this mine, or words to that effect." Lundy also testified he did not remember what he said to Puckett . The undersigned credits the testimony of Cantrell and finds the conversation , in substance , to be as stated above t' The total number of men employed at mine 214 during this period was between 225 and 230, approximately 100 normally worked on the first shift The total number at mine 207 was approximately 80 to 90 " Stidham and Boggs were not scheduled for work that day until evening shift ( second shift). LOCAL UNION NO. 6 2 8 1, UNITED MINEI WORKERS OF AMERICA 403 put us back across the hill rough (want to be run back)." The transferees stated they "didn't want no trouble." Aster Quillan then told the transferees there was an "idle panel"" at mine 214, that the transferees were taking jobs which the men on the idle panel were entitled to, and that after the men on the idle panel had been reinstated if the transferees "wanted to come and sign up a5 new-men', they wouldn't have no objection." Quillan then read the seniority provisions of the basic agreement (seniority provisions set forth above). Arnold Boggs suggested that the transferees see Seth Kegan, superintendent of mine 214. T. D. Puckett, one of the transferees, said there was no need to see Kegan if the transferees weren't going to work and asked "if they didn't intend for us to work?" Boggs said, "I will take you up to the house and feed you, but we don't intend for you fellows to work." Stidham then asked whether the trans- ferees "were going to leave" and was told by Puckett they were going to leave but "didn't see no use in being in too big a rush about it." Shortly thereafter, the transferees left the vicinity of mine 214,14 without going to work. The man-trip (cars which workmen ride going to and from ,their places of work) left at 7 a. m. but none of the men scheduled for work that morning reported to the man-trip station. Shortly thereafter, the men from mine 207 left the vicinity of mine 214 and a very few minutes after that the mine committee from mine 214 (Dillard, Stidham, and Boggs) conferred with Seth Kegan. Dillard said "Seth, I want to know what you are going to do. The 207 men are gone, and we are ready to go to work." Kegan responded he "was sorry, the man-trip had already gone and that was it" (there wouldn't be any work that day). Shortly thereafter, the crowd at mine 214 dispersed. Some of the men who congregated at mine 214 (between 50 and 75 men), including Dillard and George W. Lundy, recording secretary of Respondent, in a caravan of automobiles and trucks (about 30 cars and trucks), went to the preparation plant 1° to shut down said plant until the dispute concerning the transfers was resolved. Some of the men in this caravan talked to the workmen at the pre- paration plant and immediately thereafter this plant shut down. It remained 18 There is a dispute as to the exact composition of an idle panel (whether it includes men laid off who have secured employment elsewhere) but on this occasion Quillan was referring to the men who had been laid off previously (in 1949) and not reinstated, whether or not they were currently employed elsewhere. 14 Stidham denied speaking to Puckett, and denied informing "any of the men from the 207 mine that they could not work for the Company, or could not be transferred from the 207 mine to the 214 mine." He admitted talking to Ray Stallard and Tom Henderson, two of the transferees, but denied saying "to those gentlemen or either of them, that they would have to get bark over the hill to Jenkins and if they didn't leave peacefully, that we will get rough with you." Stidham testified : he asked Stallard "if he knowed that we had an idle panel over there that was sup- posed to be placed back to work before they come over there and he [Stallard] said no. Well, I [Stidham] said, "You realize you would be taking one of their jobs if you went to work here, wouldn't you?" He [Stallard] said "Well, I don't know about that." I [Stidham] said, "Well did you ever read the contract," and I believe he [Stallard] said no. And Tom Henderson spoke to me [Stidham] then and he said, "Are you a mine committeeman?" and I said "Yes." And that was all that I said to either one of them. And after that Quillan stepped up and read the contract to them. And by that time, some more men stepped in there and was listening." Quillan testified he did not hear Stidham say, in words or substance "get over the hill to Jenkins, and if they didn't want to leave peacefully, we would get rough with you." On the basis of the entire record and observation of witnesses, the undersigned finds Stidham made the statements attributed to him and that the facts concerning this inci- dent are as stated above. u Also called tipple. This preparation plant was used for mines 204, 207, and 214, located in the vicinity of Jenkins, Kentucky. 227200-53-vol. 10 0-2 7 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shut down until June 12, 1950, and all of the mines serviced by this plant were closed down during this period of time. On June 6 and June 8, 1950, officers of Respondent conferred with officials of District 30, United Mine Workers of America.' On June 6, 1950 , officials of District 30 made ar unsuccessful attempt to get the committee from Respond- ent to agree that everyone scheduled for work at mine 214, including the trans- ferees, should go to work and then process as grievances any complaints which might be filed by persons who felt they were mistreated . On June 8, 1950, Dillard, Stidham, Boggs, and Quillan conferred with officials of District 30 con- cerning the transfers from mine 207 to mine 214, and took the position that there were a number of men on the idle panel at mine 214 who could fill the jobs in dispute and that these men (men on the idle panel ) were entitled to go to work before any men from mine 207 were transferred. Discussion ensued concerning the seniority provisions of the basic agreement ( set forth above), the application of decision No. 38 ( see Appendix A), the application of the Walter Hall decision (see Appendix B), and the September 1945 agreement (set forth abovel. Officials of District 30 advised this group that in their opinion the September 1945 agreement was controlling and that "the coal com- pany could transfer the crews as they were attempting to do." The officers'of Respondent indicated that mine 214 would never work if the men from mine 207 were transferred while there was an idle panel of qualified men at mine 2141r On June 10, 1950, officials of District 30 contacted Charles (Pete ) Lundy. president of Local 5787 ( the local at mine 207 ) and suggested that he talk to the members of Local 5787 and advise them not to report for work at mine 214, but instead appeal to the International Union for a resolution of the dispute. This suggestion was renewed on June 11 , 1950, , at a fish fry where the officers of District 30 and of Local 5787 conferred concerning the dispute. On June 10, 1950. officials of District 30 called Respondent 's office and advised- Stidham to tell the employees of mine 214 to return to work Monday , June 12, 1950, and advised Stidham that it was their opinion ( the opinion of officials of District 30) that the men from mine 207 would not come out to work, but may decide to appeal to the International Union. Minutes of a meeting of Respondent held on June 11, 1950, state : Motion made and seconded to accept the report of Mine Committee. They reported the field workers [officials of District 30] told us to go back to work Monday. They said the 207 men would not be back, but would probably take their case up with the international. On Monday, June 12, 1950, the mines reopened and the regular employees at mine 214 returned to work. The transferees did not report on this occasion. On that same date officers of Local 5787 ( the local in which the transferees were members ) - sent a telegram , embodying a grievance , to the president of the United Mine Workers of America. The telegram stated : JOHN L. LEWIS, PRESIDENT UNITED MINE WORKERS OF AMERICA, UNITED MINE WORKERS BLDG, WASHINGTON, D. C. Dear Sir and Brother : Local Union No. 5787, Dunham, Ky., District No. 30, wishes to take this method in appealing to you, as President of the International Union and through you to the International Executive- in 11 Locals 6281 and 5787 are under the jurisdiction of District 30 17 It was the position of Respondent , based upon its interpretation of the seniority provisions in the basic agreement, that former employees of mine 214 constituted an idle panel , and that they should be given these jobs or at least offered the opportunity to accept them before the men from mine 207 could be transferred to mine 214. LOCAL UNION NO. 6281, UNITED MINE' WORKERS OF AMERICA 405 behalf of 28 members of Local Union No. 5787, who have been since June 5, 1950, deprived of work through and by the instigation of the officers and members of Local Union No. 6281, McRoberts, Ky. Local Union No. 5787 charges that Local Union No. 6281 through and by the officers and members have discriminated against these 28 members, through the loss of work each day the mine has worked since June 5, 1950, up to and including the date of this appeal and each date thereafter that they may be deprived of work until such time the International Union may decide in favor of the 28 involved members or until they have been permitted to return to work. For the information of the International Union, Local No. 5787 charges that both Local No. 6281 and No. 5741 did on the 14th day of September 1945, negotiate, agree and sign a special seniority agreement with the Consolidation Coal Company and District No. 30 representatives , and this mutual agreement has been and is now recognized by the Consolidation Coal Co. and District 30, and also both Local No. 6281 and No. 5741; Local No. 5787 further charges that when the seniority agreement was signed that the Consolidation Coal Co., both Locals and District No. 30 agreed that when the Coal Co. transferred a mechanical unit from one mine to another and under the jurisdiction of another Local Union that the crew that was working on said unit could be transferred along with the unit and take their seniority along with them. Local No. 5787 charges that on June 5, 1950, the Consolidation Coal Co., acting under the Local seniority agreement , transferred one mechan- ical unit and 2 men from the jurisdiction of Local 5787 to the jurisdiction of Local No. 6281, and the officers and members of Local 6281 refused to permit these 28 men to work and caused a picket line to go to mines 204, 207, and to the Hendricks Mine, closing these mines down and the McRoberts Mine refused to work, thereby closing down four mines with approximately 1,300 men members of the Union. Local No. 5787 again charges that Local No. 6281, McRoberts, ignored and refused to recognize their Local seniority agreement , and that they raised a question which was never raised during the negotiations of the seniority agreement, by claiming that men were not to be transferred with their units if there were idle men at the mine where they were being trans- ferred to. We claim this question of idle men was not negotiated or not discussed or mentioned any way during the negotiations of the Local senior- ity agreement. Local 6281 claims they are depending on the National and District Agree- ment where it mentions seniority in reference to a panel that shall be formed at each mine. It is their contention that the National and District agree- ment superseded the Local seniority agreement. Local No. 5787 charges that each Local Union, the District, and the Con- solidation Coal Co. knew when they agreed to the then Local seniority agreement that said seniority agreement would conflict with the National and District agreements. However, all parties agreed that all grievances arising under seniority agreement would be settled locally by two District and the Company officials and that no case would go before the Joint Board on the question of seniority. Local 5787 is asking the International Union to intercede in behalf of these 28 members of our Local by sending a Commission here representing the International Executive Board to hold a hearing and decide this con- troversy and if Local 5787 is sustained that each of these 28 men be paid 406 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD for each shift lost. All four mines that were down returned to work June 12, 1950, at the request of Board Member Tom Raney, and Dist. Rep. Carson Hibbitts, as a compromise in order to get the mines returned to work and prevent further unauthorized picket lines, the 28 displaced men agreed with the District representatives not to report out for work Monday morning, June 12; but the 28 men would appeal to the International Union for a hearing on the question. Local Union No. 5787 Dunham, Ky., hereby is appealing to the Interna- tional Executive Board through you in behalf of M. L. Mullins, Ullis Shelby and 26 other members of our Local Union. We hereby ask that you arrange for this appeal to be handled at the earliest date possible. Copy follows by mail. With best wishes. [s] CHARLES LUNDY, PRESIDENT. J. B. SHORT, REC. SECY. A commission of the United Mine Workers of America held a hearing with respect to this matter on June 22, 1950. However, the commission did not render a decision and recommendation until late in July 1950. On or about July 10, 1950, representatives of Respondent conferred with Seth Kegan, superintendent of mine 214, concerning "vacation pay." During this meeting Morgan Dillard told Kegan "that there were men at McRoberts [the community where mine 214 is located] who would not let the men from 207 come over to 214." July 24, 1950, Incident On July 24, 1950, Charles (Pete) Lundy telephoned Seth Kegan and made arrangements to have certain of the transferees (those scheduled for the no. 3 shift (see Appendices C & D-the shift that starts to work at 11 p. m.) report for work at mine 214 that night. A large gathering of men had already assembled at mine 214 when the transferees arrived at about 10: 30 p. m. This crowd was not as large as the crowd on June 5 and was composed generally of employees of mine 214.18 Morgan Dillard arrived on the scene shortly after the transferees and conferred with the crowd (men other than transferees) concerning their presence (presence of the transferees). Shortly thereafter, Farley Gilley, one of the transferees, asked Dillard "what he was aiming to do, if he was aiming to work with us?" Dillard answered "Hell, no, we have men cut off over here, and when we get them placed back, you can go to work." Gilley then responded that was all right but the transferees had come over there to find out something or to get a cut-off slip. No "trouble" ensued and immediately thereafter the transferees left the vicinity of mine 214. None of the employees scheduled for work on no. 3 shift reported to the man- trip station before the man-trip left for the mine. Within 10 minutes after the man-trip left, some of the regular employees at mine 214 started toward the man- trip station but were advised that the man-trip had pulled out. Between 11: 15 and 11: 20 a group of men on the no. 3 shift stated to Seth Kegan "We want to go to work and we are ready to go to work. The men that were from the 207 area who were over here have already gone, and we have lost enough time." Began then arranged for these men to go into the mine. Shortly thereafter, men from mine 207 caused the preparation plant to be closed down. It remained closed down for about a week (until July 31, 1950) and none of the mines serviced by this plant worked during this period. On July 26, 1950, the commission of the United Mine Workers issued its decision. A copy is attached hereto as Appendix E. This commission recommended inter alia: 18 There were around 50 men in the crowd when the transferees first arrived but the number increased as the time for change of shifts ( as 11 p. m. ) approached. LOCAL UNION NO. 6281, UNITED MINE' WORKERS OF AMERICA 407 that the transfer of these men from Local Union No. 5787 be permitted to take place provided the company gives the presently idle and unemployed men of Local Union No. 6281 the preference of these jobs, if they are quali- fied to do the type of work that is intended for the men from Local Union No. 5787. During the afternoon of July 27, 1950, the mine committee from mine 207 met with representatives of the Company (Stapleton and Began) and discussed the aforesaid decision and recommendation. The company representatives stated the Company was willing to comply with the recommendations of the commission and willing to post a list of the men at mine 214 presently idle and unemployed and indicated there were approximately five such individuals" who were quali- fied to perform the work involved. This meeting ended with an agreement that the parties would again meet the next day, after company representatives had met with representatives of Respondent. On July 28, 1950, representatives of Respondent (Dillard, Stidham, Boggs, and others) met with Began and discussed the decision and recommendation of the United Mine Workers Commission. At this meeting representatives of Respond- ent stated the position of Respondent to be : That all former employees who were cut off in a reduction in force at mine 214, and whose occupation or qualification is for jobs which will be filled in the two new sections, shall be placed up [reinstated], whether presently employed or not, before any of the new men are hired [before any men would be accepted from mine 207]. That no new men will be accepted on transfer from mine 207 with their seniority but if any are needed to fill jobs they must start as new men. Representatives of Respondent also indicated that "trouble" might result if the men from mine 207 attempted to transfer to mine 214. On July 28, 1950, after the meeting with representatives of Respondent, repre- sentatives of the Company and representatives of Local No. 5787 again met. At this meeting Began told those present that "the 214 men were not going to agree to them [the transferees] coming over there" and that it might be dangerous for them (the transferees) to report to mine 214. It was suggested by Company representatives present that the men from mine 207 contact officials of District 30 and seek an immediate solution of the problem. On that same date (July 28, 1950), Sam Cassidy, president of the Company, and representatives of Local 5787 contacted officials of District 30 and sought their assistance. On July 29, 1950, officials of District 30 contacted officials of Respondent and made an unsuccessful effort to adjust the dispute. On July 29, 1950, Kegan informed the transferees that the machinery pre- viously transferred to mine 214 would be transferred away from there. On that day the Company started removing the machinery from mine 214 and rescinded its transfer plans. Part of the machinery removed from mine 214 (one joy machine) was moved back to mine 207. Part of the remaining equipment, together with sufficient equipment from other sources to provide work for a joy crew, was sent to another mine-Hendrix Mine. Some of the transferees returned to work at mine 207 where they worked until work there ceased the latter part of January 1951. Thereafter, some of these men were employed at the Hendrix Mine. Other transferees were em- 19 Respondent, throughout the events herein , disputed this figure and insisted there were more than five. 408 DECISIONS OF NATIONAL LABOR I6ELATIONS BOARD ployed as new employees at the Hendrix Mine in August 1950, and some of the transferees were terminated when the transfer project was abandoned .20 None of the transferees worked at mine 214. . On or about August 9, 1950, Local No. 5787 filed with the international executive board of the United Mine Workers of America, an appeal from the decision and recommendation of the commission of the United Minei Workers. The international executive board considered the appeal at a meeting on September 13, 1950, and by letter dated October 3, 1950, Local 5787 was advised that this board approved the report of the commission. Thereafter, on October 29, 1950, the charge involved herein was filed. Conclusions On the facts set forth above and the record as a whole, the undersigned is convinced and finds that the acts and conduct of Respondent were in furtherance of its position that laid-off employees at mine 214 were to have seniority preference over transferees from mine 207 and that but for Respondent's acts and conduct the Company would not have rescinded its transfer plans and the transferrees would have been employed at mine 214. Accordingly, the questions for determination are: Did Respondent by such acts and conduct (1) violate Section 8 (b) (2) of the Act?; (2) violate Section 8 (b) (1) (A) of the Act? Section 8 (b) (2) declares it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3). . . . Section 8 (a) (3) of the Act proscribes "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." This Board has held that normally discriminations in regard to hire or tenure of employment or terms or conditions of employment have a natural tendency 10 The record does not reveal the status of most of the transferees after July 30, 1050. However, it does reveal the following : T. D. Puckett started working at Hendrix Mine as a new employee on July 31, 1950, and has been working there since that date Thomas C. Henderson started working at Hendrix Mine as a new employee on July 31, 1950, and has been working there since that date. Ray Stallard worked at mine 207 between August 1, 1950, and January 31, 1951, and started working at Hendrix Mine April 23, 1951. He was working at Hendrix Mine at the time of the hearing herein Farley 0. Gilley worked at mine 207 from July 31, 1950, to January 1951 and has not been employed by the Company since January 1951. Chester A. Caudill worked at mine 207 from July 31, 1950, to March 1951. Since March 1951 he has been working at Hendrix Mine. Gib Taylor worked at mine 207 from July 29, 1950, to January 31, 1951. Since March 17 or 18, 1951, he has been working at Hendrix Mine. John Allen Cantrell has been working at Hendrix Mine since August 1, 1950. John Caldwell worked at mine 207 from July 31, 1950, to January 31, 1951. He has not been employed by the Company since January 1951. B. L. Bevins worked at mine 207 from July 31, 1950, to January 31, 1951. Since March 14, 1951, he has been working at Hendrix Mine, as a new employee. James Baker worked at mine 207 from July 31, 1950, to January 31, 1951. He has not worked for the Company since January 1951. Milford Brown has not worked for the Company since June 2, 1950. U. Shelby was not employed at the time of the hearing . The record does not reveal whether he worked for the Company after June 2, 1950. - M. -L. Mullins was employed by Inland Steel Company at the time of the hearing herein. The record does not reveal whether he worked for the Company after June 2, 1950. - Daniel Cantrell has been working at the Hendrix Mine since August 9, 1950. LOCAL UNION NO. 6281, UNITED MINE' WORKERS OF AMERICA 409 to encourage or discourage union membership and are` violative of the Act. However, the undersigned has not found any cases directly in point on the precise questions involved in this proceeding. Nevertheless, it does not appear to be the purpose of the Act to proscribe all "discrimination in regard to hire or tenure of employment . . ." For example, a legitimate grievance success- fully processed may result in more advantageous working conditions for one person or group as opposed to another person or group and may thereby en- courage or discourage union membership. Yet, such a resolution of the grievance does not, per se, constitute a violation of the Act. Also, compliance with reason- able and lawful contractual provisions may result in more advantageous work- ing conditions for some employees but not others, and may have some effect on encouraging or discouraging union membership. Nevertheless, there is se- rious doubt that such discrimination would be violative of the Act 21 It seems to follow that the fact that some encouragement or discouragement of union membership may result from discriminatory conduct is not the criterion to be used in determining whether specific discriminatory conduct is violative of the Act. On the other hand, the ready criterion, or rule of thumb, appears to be whether the encouragement or discouragement of union membership is merely incidental or whether the discrimination is such as to have the natural substan- tial tendency to encourage or discourage union membership. It appears to the undersigned that the acts and conduct of Respondent Union herein were for purposes or objects which are remote from those normally considered to give substantial encouragement to membership in a labor organ- ization or substantial strengthening to the hand of the union and may be con- sidered to have only an incidental effect on encouragement of membership in a labor organization. Respondent herein was seeking compliance with what it con- sidered its contractual rights. Although others may not have agreed as to how the various agreements were to be interpreted and applied, such disagreement does not detract from Respondent's right to seek its interpretation and applica- tion thereof so long as its position with respect to these matters was not mani- festly unlawful. (Cf. The Texas Company, 93 NLRB 1358.) There is no con- tention that Respondent's position, that laid-off employees at mine 214 were entitled (by virtue of the basic agreement and interpretations thereof) to senior- ity. preference over transferees from mine 207, was manifestly unlawful. Since Respondent was seeking results not inherently erroneous and violative of the Act (was seeking the application of its bona fide interpretation of the agreements) its methods-to obtain these ends were lawful so long as they were peaceful and not otherwise violative of the Act. Respondent's statements, unaccompanied by threats, indicative of an unwillingness to work unless its interpretation of the agreements was applied, Respondent's refusals and failures to work (from June 5 to June 12, 1950, and on July 24, 1950), and Respondent's peaceful shutting down of the preparation plant on June 5, 1950, fall within this classification and were not violative of the Act. However, some of the methods employed were not within the permissible boundaries of the Act and infringed upon rights guaranteed employees in Section 7 thereof and were therefore violative of Section 8 (b) (1) (A) of the Act. These included the following incidents: (1) George Lundy's warning, on June 4, 1950, that there would be friction if the transferees attempted to work at mine 214 on June 5, 1950. (2) Sam Sidham's threat, on June 5, 1950, to get "rough" if the transferees did not leave peacefully. n Denial of the right to seek compliance with legitimate contractual provisions would tend to vitiate one of the policies of the Act ; to encourage collective bargaining leading to contracts. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) The surrounding of the transferees, thereby cutting them off from the lamphouse, on June 5, 1950, and accompanying statements that the transferees would not be permitted to get a lamp and go to work. (See Carpenters .* Painters, AFL (Fairmount Construction Co.), 95 NLRB 969.) (4) The statements, on July 24, 1950, indicative that the transferees would not be permitted to-work, accompanied by a show of strength capable of seeing that these transferees did not work. In view of the foregoing and the entire record, the undersigned believes and finds that the evidence adduced is insufficient to sustain the allegations of the complaint to the effect that Respondent violated Section 8 (b) (2) of the Act. Accordingly, it will be recommended that these allegations be dismissed. How- ever, as noted above, the undersigned believes and finds that certain conduct of Respondent was violative of Section 8 (b) (1) (A) of the Act. The undersigned further believes and finds that these unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. Having found that Respondent engaged in unfair labor practices, it will be recommended that Respondent take the action hereinafter specified to effectuate the policies of the Act. [Recommendations omitted from publication in this volume.] Appendix A UNITED MINE WORKERS OF AMERICA P. O. BOX 50-TELEPHONE 380 DISTRICT NO. 30 BIG SANDY DIVISION PIKEVILLE, KY. GRIEVANCE CASE NO. 38 ELKHORN COAL CO., INC. KONA,KENTUCKY •GRIEVANCE : Company not putting men back to work according to seniority, say company agreed with mine committee. DECISION: Referred to Umpire. Miners_____________________________ Sam Caddy, Blaine Collins Operators__________________________ R. C. Thomas, T. W. English Pikeville, Kentucky ---------- --------------------- __ April 23, 1934. Fairmont, W. Va., April 27, 1934 GRIEVANCE NO. 38 TO THE MEMBERS OF THE JOINT LABOR BOARD OF THE UNITED MINE WORKERS OF DISTRICT 30 and THE BIG SANDY ELKHORN COAL OPERATORS ASSOCIATION Gentlemen : In Re: The re-employment of men who have been temporarily idle which was referred to me for decision. I find no specific clause in the scale contract relative to the manner in which men shall be returned to work. However, this scale contract like all mutual agreements is based upon the fundamental principle of Justice. And in the absence of specific law custom and usage became an LOCAL UNION NO. 6281, UNITED MINE WORKERS OF AMERICA 411 unwritten law with as much validity as a written law. The general custom of mining throughout the coal districts where scale contracts have operated for years has been when a mine worker has been temporarily laid off from work, he was returned to his former place of work upon the resumption of such place: That where a number of men was laid off and places was provided other than the one they last worked , they shall be returned to work in the order the foreman chooses, but in all cases, men out of work shall have priority rights over men laid off at a later date and all former employees shall be returned to work before new men are employed unless a quality or class of labor is needed that cannot be supplied among those who are idle. I believe the above provisions to be in harmony with justice and the general practice of mining and submit it as my decision in the replacement of idle employees. E. S. MCCULLOUGH, Umpire. Appendix B GRIEVANCE CASE NO. 314 U. M. W. A., DISTRICT No. 30, LOCAL UNION NO. 5741 vs. CONSOLIDATION COAL CO., MINE NO. 204, JENIJINS, KENTUCKY Case received by Umpire, March 24, 1949. Case decided by Umpire, March 30, 1949. Nature of Dispute: Wherein the miners demand that Walter Hall be reinstated and compensated for time lost. Evidence: The undisputed evidence shows that Walter Hall , a tipple employee, with a group of twenty-two other employees were cut off from work in July, 1948, due to a reduction in the working force . Subsequently the coal company re -employed or re-called all of the laid off employees, who were available for work, with the exception of Walter Hall. The miners contend , that, on August 25, 1948, the mine committee met with Superintendent Blake and informed him, that, in line with the Local Seniority Agreement at this mine, the coal company had erred in placing a man to work at the tipple who was a younger man, in point of service with the company, than Walter Hall. The miners further contend , that, it was agreed at this meeting that an employee with less seniority than Hall , had been placed on a temporary job and be was not considered as a regular employee, further, it was agreed that the temporary employee would remain on the job, with the under- standing that Walter Hall would be next in line for employment . The evidence also discloses that on September 27, 1948, the coal company hired a new employee and placed him to work on the tipple. The miners further contend, that, it is their understanding that on August 25, 1948, an agreement was reached between Superintendent Blake and the Mine Committee regarding the re-employment of Walter Hail. A formal grievance case was not filed until later when it was recog- nized that Walter Hall was being by-passed by new employees . The evidence also indicated , that, subsequent to August 25, 1948, several meetings were held be- tween the Coal Company Officials and the United Mine Worker 's Representatives, for the purpose of adjudicating this grievance. The fact remains that Walter Hall has not been put back to work by the coal company. Superintendent Blake's statements before the Joint Board meeting, relating to this grievance and recorded in the transcript are as follows : 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Page No. 25 Mr. Blake. "Walter Hall was cut off with 22 other men 7-1-48 reduction of working force. "August 25, 1948, claimed job which Jack Tomkins was put on August 23, 1948. Tomkins was one of the men in same cut off. Hall was claiming job due to being older in service than Tomkins. "It was explained to committee and Hall. Since no one was put on the job Hall was cut off. According to contract and decision 38 we had the right to hire any person on the panel we chose." Page No. 35 Mr. Blake. "At this time I made the statement that Hall was the oldest in service" * * * and that's referring to Jack Tomkins * * * "and that we are going to place all the men on the panel back to work before hiring new men. Hall made the statement that if he did not get Tomkins' job he did not want to work at the plant." "Gentlemen, that is the only statement made at this meeting." Page No. 37 Mr. Blake. "November 10 Walter Hall came up to the office and asked for a job. He was told there was no vacancies at that time. After some discussion I again told him we did not have any job for him." Page No. 37-38 Mr. Blake. "November 16 Carl Conley, Garfield Goff and Kelly were at the office to see about work for T. M. Mullins who had been cut off November L Carl Conley again asked me if I had decided about the Hall case." Page No. 38 Mr. Blake. "I had heard that Walter Hall had bought a truck mine on Ken- tucky River and was operating same. Conley made the statement that he would check to see if this was true. At this time we checked to see if this was true. We obtained the information that be bought mine October 12 and sold same November 8, that he had worked in the mine, also he terminated his unemploy- ment insurance in October." Page No. 52 Mr. Blake. "November 20, Carson Hibbitts, Carl Conley, Garfield Goff, Walter Hall and Kelly stopped me in a parking lot at main office building at Jenkins. Carson requested that Walter be put back to work-in place of Lincoln Prichard who was hired September 27. I explained to Carson that since we had not hired anyone and put them on the job Hall was cut off that we could hire the men back for other jobs as we preferred. The statement was made that we had hired a new man, which was correct, but he was hired on November 8, and since Hall had been in truck coal business since October 12, he was no longer on the panel. "After some discussion I advised Carson that since we considered Hall was gainfully employed the case should be decided by a board hearing. Carson made the statement that he would file the case to the board." LOCAL UNION NO. 6281 , UNITED MINE, WORKERS OF AMERICA 413 Page No. 53 Mr. Blake. "December 2, Carl Conley, Goff and Kelly saw me at the Ceneral Repair Shop. They asked about Walter Hall case. Kelly insisted that since Hall was the oldest man in service, he should have the job Lincoln Prichard got. "I explained that under Decision No. 38 that all men on the panel were equal unless it was necessary to put one back on jobs they were cut off. No agreement was reached." Page No. 53 Mr. Blake. "Morning January 3, 1948, [sic] Carl Conley, Garfield Goff came to office and asked if we would consider putting Hall to work . Walter Hall had told them that he had not worked in the mine. "Hall was claiming the job of Bruce Sanders , the new man put on November 8. "Due to information we had concerning Walter Hall working I refused to recognize any claim of Hall having for job." Opinion: The evidence in this grievance case shows that Walter Hall was cut off from work with 22 other employees , July 1948. At a later date all the laid off em- ployees, who were available for work , were again employed ; except Walter Hall. It appears from the evidence that subsequent to the July lay off of the tipple men, many meetings and discussions relating to the re-employment of Walter Hall, was held between the coal company officials and the U. M. W. of A. officials and that fact is established by the testimony Superintendent Blake offered at the Board meeting. The major question to be decided by this Umpire, is, whether or not, Walter Hall is entitled to re-employment , and compensated for time lost and also, did the mine management agree with the local union officials August 25th, 1948, that Walter Hall was next in line for employment. The coal company's contention that Walter Hall purchased a small wagon mine on October 12 and sold same November 8 and that he worked in that mine during the period of his ownership is immaterial, for the reason , Hall was never given an opportunity to return to work. Superintendent Blake's own statement shows, that , he did meet with the mine committee on August 25, 1948, relating to the re-employment of Walter Hall. It must be noted that this grievance was instituted some time before Walter Hall worked in the wagon mine. The transcript this Umpire has before him, discloses the fact that Walter Hall's grievance was in litigation since August 25, 1948, and prior to that date all employees on the un-employed panel who were available for work, were put back to work except Walter Hall and also in addition to the exhausted panel new employees had been hired . The evidence fails to show, that , Walter Hall was given an opportunity to return to work. The coal company predicates their action of denying Walter Hall employment on the fact , that, he was employed at gainful work during the interim of this grievance . This Umpire is of the opinion , that, employees whose jobs have been stopped due to a reduc- tion of the working force or other legitimate reasons and they are listed on the panel and have been forced to accept temporary employment elsewhere, shall not forfeit their seniority rights as long as those employees continue to make their services ready and available to the coal company. In this case it clearly shows, that , Walter Hall was never given an opportunity to return to work; which he was entitled to. It is a recognized fact that the first law of nature is self preservation and it has been an accepted custom throughout the coal industry, that,' whenever a lay off or shut down occurs, the employees of the mines so affected are granted the privilege of temporarily working at other 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occupations. The fact must be recognized, that, Walter Hall was a regular employee and at no time did he quit his job on his own accord. Decision: Walter Hall is entitled to a job at this mine and compensated for all actual time he would have worked, had he been employed. His compensation shall begin from the date a new employee was hired subsequent to August 25, 194& And it is so decided. Respectfully submitted, FRANK W. FRIES, Umpire. Appendix C The following men will be transferred to 214 Mine effective June 3d, 1950, from 207 Mine: No. 1 Shift Raymond Wetzel T. D. Puckett Dan Cantrell Lawrence Mullins Clint Mahone Will Brown Dallas Daniels Roger Jones Ray E. Stallard T. C. Henderson Chas. Gambill FOREMEN No. 2 Shift Clarence Smith: JOY OPERATORS Arile Hughes MACHINE OPERATORS Mart Bolling MACHINE HELPERS Corbit Mullins SHOOTERS Rufus Tackett DRILLERS Kernie Stewart TIMBERMEN J. H. Farmer TIMBER HELPERS John A. Cantrell SHUTTLE CAR OPERATORS Wayne Branham John Toth PIPEMEN No. 3 Shift George Asbury M. L. Mullins U. S. Shelby Stanley Krzak Gilmer Mullins R. D. Elkins Tolly Meade Milford Brown B. L. Bevins Jas. I. Short Wm. Stapleton. LOCAL;UNJON NO. 6281, UNITED MINEWORKERS OF AMERICA 415 Appendix D The following men will be transferred to 214 Mine effective June July 1st from 207 Mine: - No. 1 Shift FOREMEN No. 2 Shift Jim Johnson MAINTENANCE FOREMEN No. 8 Shift N. L. Akers R. M. McDonough Millard Hughes Andrew Farley Manuel Black L. H. Winchell Geo Adkins Felix Wenix James Baker Issac Helton Hubert Hawks Jennings Litton Steve Toth Rex Lawrence JOY OPERATORS Chester Caudill C. V. Green MACHINE OPERATORS Troy Boggs Gib Taylor MACHINE HELPERS Joseph Nash J. B. Caldwell SHOOTERS J. D. Webb Eddie Powers DRILLERS H. M. Fleming Arthur Mullins TIMBERMAN Ed. Adkins M. C. Witt TIMBER HELPERS Buster Rose SHUTTLE CAR OPERATORS Hubert Mullins Donald Hester PIPEMAN MINE EXAMINER J. B. Short Farley Gilley Ralph Collins Wm. Stapleton. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix E _July 26,1950 Mr. Thomas Kennedy, Vice President United Mine Workers of America United Mine Workers Building Washington, D. C. Dear Sir and Brother: Your Commission consisting of Board Members Ray Thomason and Joseph Yablonski appointed by you on June 14, 1950, to hear the jurisdictional dispute that exists between Local Unions No. 5787 and No. 6281 in District No. 30 met in the Pikeville offices of the United Mine Workers of America with the officers, committeemen and some members of Local Union No. 5787 at which time the officers, committeemen and members of this local union present stated that the seniority agreement entered into between the local unions and the Consolidation Coal Company provided that men could be transferred from one mine to another with their full seniority when the company decided it was necessary to move a unit. The officers and members of this local union were very emphatic in their posi- tion that this was an understanding at the time the seniority agreement was negotiated. % We later met with the officers, committeemen and some members of Local Union No. 6281 who stated that there was no understanding with the company at the time the seniority agreement was negotiated to permit them to transfer men from one mine to another when it became necessary to move a unit if there were idle men on the panel in the mine to which the new unit was being transferred. The Commission also discussed with Board Member Tom Raney the question of whether or not men could be transferred from one mine to another when it became necessary to move a unit. Mr. Raney showed the Commission a copy of a memorandum which was sent to the local union immediately after this seniority agreement was negotiated, and personal working papers wherein he kept notes of what transpired at the meeting. Both the memorandum and working notes kept by Mr. Raney show very definitely, in the opinion of the Commission, that there must have been an understanding with the company that men could be transferred from one mine to another without loss of seniority when it became necessary to move a unit. Commission after hearing all sides of this dispute-are of the opinion that there must have been an understanding permitting the transfer of men from one mine to another without loss of seniority in the event it became necessary to transfer a unit. We, therefore, recommend that the transfer of these men from Local Union No. 5787 be permitted to take place provided the company gives the presently idle and unemployed men of Local Union No. 6281 the preference of these jobs, if they are qualified to do the type of work that is intended for the men from Local Union No. 5787. The Commission further recommends that the officers of District 30, United Mine Workers of America attempt to negotiate with the representatives of the Consolidation Coal Company an understanding that will not permit the transfer of men from one mine to another where there may be, a panel of idle men. The Commission makes this recommendation for the purpose of maintaining the seniority agreement that now exists between the Consolidation Coal Company and the Local Unions of the United Mine Workers of America. We feel that were we to make any other recommendation that it might result in the elimination THE HEEKIN CAN COMPANY 417 of the seniority agreement now in existence, which has been so beneficial and so much. desired by our membership at the mines of the Consolidation Coal Company. This decision being made is in no way to be construed as establishing a precedent of any kind in District 30 or in any other District of the United Mine Workers of America. Very truly yours, Commission [s] Joseph Yablonski. JOSEPH YABLONSKI. [s] Ray Thomason. RAY THOMASON. CC: District 30. UMWA Local Union 5787 Local Union 6281 Commission THE HEEKIN CAN COMPANY and LODGE 162, DISTRICT 34, INTERNA- TIONAL ASSOCIATION OF MACHINISTS, AFL, PETITIONER. Cases Nos. 9-RC-1624, 9-RC-1625, 9-RC-1626, 9-RC-1627, 9 RC-1628, and 9-RC-1629. July 30, 1952 Decision and Direction of Elections Upon 'petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Leonard S. Kimmel, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to sever from a plant-wide unit six separate craft units consisting of (a) welders, (b) sheet metal workers, (c) electricians, (d) plumbers, air-conditioning, and refrigeration repair- men, (e) machinists, mechanics, millwrights, and lubrication men, iL United Steelworkers of America , CIO and Its Local 4372 , were permitted to intervene on the basis of a contract interest. 100 NLRB No. 65.