United Mine Workers of America, Etc.

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. Rockland Printing Specialties & Paper Products Union, Local 643, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to hire and tenure of employment of employees, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The Respondent did not violate Section 8 (a) (4) of the Act. 5. The aforesaid labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Mine Workers of America ; United Mine Workers of America, District 31; and United Mine Workers of America, Local 2311 and Blue Ridge Coal Corporation ; Louis Marra, d/b/a M & T Coal Company; Louis, Sammie , and Robert Marra, Partners, d/b/a Marra Bros. Coal Co.; James W. Thompson, d/b/a Thompson Coal and Construction; and Chester Sinsel, d/b/a Sinsel Coal Co. Cases Nos. 6-CB-466, 6-CB-467, 6-CB-468, 6-CB-469, and 6-CB-482. September 09, 1960 DECISION AND ORDER On July 14, 1959, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents, United Mine Workers of America, and United Mine Workers of America, District 31, 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 copy of the Intermediate Report, attached hereto. The Trial Examiner also found that the Respondent, United Mine Workers of America, Local 2311, had not engaged in any unfair labor practices and recommended dismissal of the complaint with respect to it. Thereafter, the Respondents filed exceptions to the Intermediate Report together with supporting briefs. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the cases and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications. 1. We agree with the Trial Examiner's conclusions that the 6-month limitation period of Section 10 (b) began to run against the Interna- tional from the time the original charge was filed and served against 129 NLRB No. 19. UNITED MINE WORKERS OF AMERICA, ETC. 147 it on June 12, 1958. The charges in Cases Nos. 6-CB-466, 6-CB-467, and 6-CB-468 were filed on June 11, 1958. The charge in Case No. 6-CB-482 was filed on September 4,1958. All of these charges named only District 31 as the labor organization against which the charge was brought. The charge in Case No. 6-CB-469 was filed on June 12, 1958, and named the "United Mine Workers, Harry Myers and its and his agents. . . ." On November 19, 1958, the charges in Cases Nos. 6-CB-466, 6-CB-467, 6-CB-468 were amended and the Interna- tional was added as a Party Respondent. On the same date, the charge in Case No. 6-CB-469 was amended and the International and District 31 were separately named as parties. On November 24, 1958, the charge in Case No. 6-CB-482 was also amended to add the Interna- tional as a Party. The International contends that a complaint could properly be issued against it only for violations occurring within the six months prior to the filing and service of the amended charges in Cases Nos. 6-CB-466, 6-CB-467, 6-CB-468, and 6-CB-482 since, in those cases, it was first added as a Respondent in the amended charges. There is no merit to this contention. It is well settled that a charge is not a pleading to be governed by technical rules of procedure, but is merely designed to set in motion the Board's investigatory machinery in order to determine whether a complaint should issue.' In these cases, a charge was filed and served on the International almost contem- poraneously with the charges filed against District 31. Since all of the charges in these cases alleged the commission of similar violations which are found herein to have been part of a related pattern of unlawful activity, we find that service of one charge on the Interna- tional was sufficient to invoke the Board's jurisdiction and open the proceeding for full investigation.' Thereafter, the Board could properly issue a complaint alleging as unfair labor practices all conduct by the International which occurred after the cutoff date established by the first charge and which was related to the unfair labor practices alleged in the first charge.' Accordingly, we' find 1 N.L.R.B. v. Indiana & Michigan Electric Company, 318 U. S. 9, 17-18; N.L.R B. v. We8tem Boot & Shoe Company, 190 F. 2d 12, 13; N.L.R B. v. T. A. Mcaahey, Sr.; et at., d/b/a Columbus Marble Works, 233 F. 2d 406, 408-409. 2 Ferro Stamping and Manufacturing Co., 93 NLRB 1459, 1463; Triboro Carting Corporation, 117 NLRB 775. 'See N.L.R.B . v. Pant Milling Co., 360 U.S. 301 ; National Licorice Company v. N.L R B., 309 U.S. 350 ; N.L R.B. v. Gaynor News Company, Inc., 197 F. 2d 719. 4 Board Member Rodgers dissents on this point. He agrees with the International's contention that a complaint cannot lawfully be issued against it for violations occurring more than 6 months before the filing and service of the amended charges in Cases Nos. 6-CB-466, 6-CB-467, 6-CB-468, and 6-CB-482. He rejects the "almost contemporane- ous" service theory of his colleagues, noting specifically that Section 10(b) of the Act bars issuance of a complaint based upon any unfair labor practice occurring more than 6 months prior to the filing and service of a charge "upon the person against whom such charge is made. . . ." [Emphasis supplied.] He also notes that his colleagues' decision on this point is inconsistent with the recent decision of the Board in The H. K. Ferguson Company case, 124 NLRB 544 . Accordingly, he would find that the complaint could 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the filing and service of a charge naming the International as Party Respondent in Case No. 6-CB-469 was adequate to establish the limit of the Section 10(b) period and that a complaint could properly be issued against the International for all related violations occurring 6 months prior to June 12, 1958. We disagree with our dissenting colleagues' view that this finding is based on the theory that the first charge which named the Interna- tional was served at almost the same time as three of the four charges which did not name the International. Rather, it rests on the ground that the unlawful conduct of the International was part of a related pattern and that the filing of one charge naming the International was sufficient to establish the limit of the Section 10 (b) period for all unfair labor practices related in those alleged in the first charge. Nor do we agree that our decision on this point is inconsistent with the recent Board decision in The H. K. Ferguson Company. The crucial distinction between the Ferguson case and this case is that here the International was named as a Party in one of the early charges, while in Ferguson the International was not named at all as a Party Re- spondent until the second amended charge. 2. The Trial Examiner found that certain individuals were agents of both District 31 and the International during the period in which the violations occurred.' We agree with his findings except as to Lee Shoulders and Aussie Kimber. Although there is evidence that Shoulders and Kimber participated in misconduct both on and away from the picket line, the evidence is not sufficient to support a finding that they did so as agents of the Respondents. Therefore, we do not attribute to Respondents the responsibility for any activity away from the picket line which occurred when the only identified "agents" present were Shoulders and Kimber.6 3. We agree with the Trial Examiner that the Respondents re- strained and coerced the employees of the Charging Companies in violation of Section 8(b) (1) (A) of the Act. In so doing, we rely on the various incidents fully described in the Intermediate Report consisting of assaults, mass picketing, threats, and blocking of ingress and egress. However, we do not agree with the Trial Examiner that the Respondents should be held responsible for the incident in mid- properly be issued against the International only for violations on and after May 21, 1958, in Cases Nos. 6-CB-466, 6-CB-467, and 6-CB-468, and on and after May 26, 1958, in Case No. 6- CB-482. 6 In its brief, the International challenges the Trial Examiner 's statement that it con- cedes that Cappellini, Gladski, Murray, and Zivkovich were agents of the International as well as District 31. However, assuming the Respondent did not make such a con- cession, it is quite clear from the record that the four International representatives who were appointed by the International to work with District 31 were agents of the International as well as District 31. 9 Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO (Chas. Weinstein Company, Inc ), 123 NLRB 590. Cf. United Electrical, Radso & Machine Workers of America, Local 914 (American Rubber Products Corporation), 106 NLRB 1372, footnote 1. UNITED MINE WORKERS OF AMERICA , ETC. 149 June 1958 when Howard C. Williams was stopped on the Grafton Coal Road by a group of 10 to 12 men and told that he should be armed the next time he sought to report for work "because we have got guns . .. we will kill you." This incident occurred more than a mile distant from the entrance to the Marra Brothers mine, and Williams was unable to identify any of the men present . Under these circumstances, and particularly in view of the facts that there was no union agent present who might have repudiated the threat and no evidence that the men who made the threat were pickets, we do not attribute responsibility for this incident to the Respondents. 4. The Trial Examiner recommended the entry of a "broad order" calling on the Respondents to cease and desist from restraining and coercing not only the employees of the five Charging Employers, but also "any other employees engaged in mining operations within the geographical limits of District 31, . . ." in the exercise of rights guaranteed them by Section 7 of the Act. He 'also recommended that the Respondents cease and desist from "in any manner restraining and coercing" any employees in their right, guaranteed by Section 7 of the Act, to refrain from any or all of the concerted activities. Under the circumstances of these cases, we believe such an order is justified. We have found that the Respondents have engaged in vio- lations against the employees of the five Charging Parties. There was also evidence that the Respondents were engaged contemporane- ously in a similar organizational campaign against four other em- ployers, Riley Coal Company, P & J Coal Company, C & P Coal Company, and Craigmoor Coal Company . Furthermore Sergeant Karickhoff of the West Virginia State Police testified that Harry Myers told him the Respondents ". . . were organizing the small mines, that that was a start in Barbour County, and he [Myers] named other mines where they were going . . . ." Another State policeman, Sergeant Pike, testified to the following conversation with Myers: "He indicated to me that the pickets would be there until he unionized the mines, if it took a long time. He indicated to me he had a million and a half tons of non-union coal out off and he was going to unionize them or keep them cut off ." In view of these facts, and the record as a whole, we believe that the conduct of the Re- spondents evidences as a generalized scheme against all nonunion mines within the jurisdiction of District 31 which can be remedied only by the entry of a broad order.? ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 7 Cf. Communications Workers of America, AFL-CIO, et al. (Ohio Consolidated Tele. Co.) v. N.L.R.B., 362 U.S. 479; N L R B. v. United Mine Workers of America, Distrirt 31, at al. (L. E. Cleghorn ), 198 F. 2d 389 (C.A. 4) cert. denied 844 U.S. 884. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondents, United Mine Workers of America, and the United Mine Workers of America, District 31, their officers, representatives, agents, successors, and assigns shall: 1. Cease and desist from : (a) Restraining and coercing the employees, or any of them, of Blue Ridge Coal Corporation, M & T Coal Company, Marra Bros. Coal Co., Thompson Coal and Construction, and Sinsel Coal Co., or any other employees engaged in mining operations within the geo- graphical limits of the jurisdiction of District 31, United Mine Workers of America, in the exercise of the rights guaranteed them by Section 7 of the Act, by exerting force, or committing acts of force and violence against said employees, or any of them, or by using or threatening to use force or violence, or by taking or threatening to take punitive action or economic reprisals against any of said em- ployees, unless said employees join in the concerted activities or be- come members of said District 31 or its affiliated locals. (b) In any manner restraining and coercing said employees or any of them, in the exercise of their right to refrain from any or all of the concerted activities guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in the business offices of District 31, United Mine Workers of America, where notices and communications to members are customarily posted, copies of the notice attached hereto marked "Appendix A." 8 Copies of the notice, to be furnished by the Regional Director for the Sixth Region, shall, after being signed by official representatives of United Mine Workers of America, and of District 31, United Mine Workers of America, be posted and maintained for a period of 60 days thereafter. Reasonable steps shall be taken by the Respondents, to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign, as aforesaid, and mail sufficient copies of the said notice, attached hereto marked "Appendix A," to the Regional Director for the Sixth Region, for posting, the employers operating said mines and tipples being willing, at each of the mines and tipples involved in this proceeding in the places- thereat where notices, bulletins, or commu- nications to the employees of said mines and tipples are customarily posted. Such copies of the notice shall be furnished Respondents by the said Regional Director. (c) Sign, as aforesaid, and forward to each local of District 31, or United Mine Workers of America, a copy of the notice attached 9In 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." UNITED MINE WORKERS OF AMERICA, ETC. 151 hereto marked "Appendix A," with accompanying instructicns direct- ing and ordering the proper officers of the local to post and maintain same for a period of 60 consecutive days thereafter, at the office, headquarters, or meeting place or places of said local, in the place thereat where notices, bulletins, and communications to members of the local are customarily posted, or, if the local does not have an office, headquarters, or regular place of meeting, or place where communica- tions to the members are customarily posted, that said notice be communicated to the membership of the local in the manner, and by the means, in which notices, bulletins, or communications are cus- tomarily transmitted to its members. Copies of the notice for such purpose shall be furnished Respondents by the said Regional Director. (d) Cause a copy of said notice to be printed, at the expense of the aforesaid Respondents, in a newspaper of general circulation within the terriorial jurisdiction of District 31. (e) Notify the Regional Director for the Sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent Local 2311, United Mine Workers of America, violated Section 8 (b) (1) (A) of the Act, or that William Maddix, Lee Shoulders, and Aussie Limber were agents of any of the Respondents herein. MEMBER KIMBALL took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify you that : WE, United Mine Workers of America and United Mine Work- ers of America, District 31, our officers, representatives, and agents WILL NOT restrain and coerce the employees engaged in any of the mining operations of Blue Ridge Coal Corporation, M & T Coal Company, Marra Bros. Coal Co., Thompson Coal and Construc- tion, and Sinsel Coal Co., or any other employees engaged in mining operations within the organizing jurisdiction of District 31, United Mine Workers of America, in the exercise by them of the rights guaranteed to them in Section 7 of the National Labor Relations Act, by using or threatening them with force or violence, barring their ingress and egress to and from work, physically preventing them from working, or threatening punitive action 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or reprisals against them unless they become members of the United Mine Workers of America, FURTHER , WE WILL NOT in any manner restrain and coerce said- employees, or any of them, in the exercise of their right to refrain from any or all of the concerted activities guaranteed to them by- Section 7 of the National Labor Relations Act, as amended. UNITED MINE WORKERS OF AMERICA, Union. Dated---------------- By------------------------------------- (Representative ) ( Title) UNITED MINE WORKERS OF AMERICA, DISTRICT 31, Union. 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 STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the Trial Examiner- on a consolidated complaint of the General Counsel and answers of the Respondents (herein called International, District 31, and Local 2311, respectively), at a hearing in Clarksburg, West Virginia, which began on February 9 and closed on March 5, 1959. The issues litigated were whether the Respondents had violated Section 8(b)(1) (A) of the Act. At the close of the hearing the General Counsel argued orally; oral argument was waived by the Respondents. Motions to dismiss, made at the close of the hearing, were taken under advisement. They are disposed of as appears hereinafter in this report.' On May 8, 1959, counsel for the International, and on May 11, counsel for District 31 and Local 2311, filed able and compre- hensive briefs on all points involved herein. On the latter date the General Counsel filed a memorandum of points and authorities. Upon the entire record and from my observation of the witnesses, I hereby make- the following: FINDINGS OF FACT I. COMMERCE Each of the Charging Parties named herein is engaged in the business of mining,. producing, processing, and distributing coal from various mines located in Barbour and Taylor Counties, West Virginia. The facts as to their business operations, i At the close of the hearing District 31 and Local 2311 also renewed certain motions to- dismiss which had been denied earlier. In so doing, these Respondents moved for a dis- missal on the grounds that the amended charges, complaint, and notice of consolidation were not duly and legally served according to law ; (2) the complaint did not state facts constituting any alleged unfair labor practices within the meaning of the Act; (3) the complaint was issued in violation of Section 10(b) of the Act because it was based upon alleged unfair labor practices occurring more than 6 months prior to the filing of the charges with the Board; and (4) various motions made earlier to sever the cases, to strike allegations, and for particulars should have been granted There is no merit to any of these contentions and the motion to dismiss as to District 31 and Local 2311, insofar as it is based upon these grounds, is now denied. N.L R.B. v. United Mine- Workers of America, District 31, et al., 198 F. 2d 389, 390 (C.A. 4), cert. denied, 344- U.S. 884, enfg. United Mine Workers of America, District 31, et al. (L. R. (Jieghorn),_ 95 NLRB 546, 547, 549. UNITED MINE WORKERS OF AMERICA, ETC. 153 based on the credible testimony and financial records which were offered at the hearing, are set forth below. Blue Ridge Coal Corporation , herein called Blue Ridge , is a West Virginia corpo- ration which operates two deep mines and a tipple in Taylor County. In April 1958, at the outset of the dispute out of which the present proceeding arose, it had approximately 43 employees. Its principal customer is Niagara Mohawk Power -Company, of Albany, New York, to whom approximately 95 percent of its produc- tion is shipped each year. In 1958 its out-of-State sales totaled $67,937.56; during 1957 they exceeded that figure. Louis, Sammie, and Robert Marra are partners doing business as Marra Bros. Coal Company, herein called Marra Brothers . The partnership operates one deep mine and a tipple in Barbour County. The latter is located on a siding of the Baltimore & Ohio Railroad and most of the partnership 's coal production is shipped -on cars of that carrier to points in New York, Pennsylvania, and New Jersey. In 1958 it received $52,939.93 from one broker alone, Louis Gulotta & Company, of New York, New York, for coal sold and shipped out of the State of West Virginia. 'There was further credible testimony that in 1957 the out-of-State shipments of the ,partnership likewise exceeded $50,000. M & T Coal Company, herein called M & T , is a propietorship, owned by Louis Marra. It operates one mine in Barbour County, but has no tipple . Its entire pro- ,duction, therefore, is trucked to the tipple of either of two customers, Marra Brothers and Casella Coal Company (the latter located in Buckhannon, West Virginia) where it is processed and shipped to points outside the State of West Virginia. In the period from April 1, 1957, to March 31, 1958, M & T received $61,770.14, for coal which it produced and sold from this mine to Marra Brothers and Casella. The interstate operations of the former have been set forth in the paragraph above. Casella, likewise, ships all of the coal so purchased , as well as its own production, to customers located out of State. This volume exceeds $50,000 annually by a wide margin. William J. Casella testified, credibly and without contradiction, that in the period from January through April 1958, his company had sold approximately $95,000 worth of coal to customers in Maryland , Pennsylvania , Ohio, and Maine .2 Thompson Coal and Construction, herein called Thompson, a proprietorship -owned by James W. Thompson, operates a strip mine and tipple in Taylor County. Thompson also has another strip operation in Harrison, an adjoining county, but none of the events here in question occurred at that site . In the period from January 1 to April 30, 1958, Thompson received $57,083.27 for coal sold and shipped to customers outside West Virginia. Its out-of-State sales for 1957 exceeded $60,000. Sinsel Coal Co., herein called Sinsel, a proprietorship owned by Chester Sinsel, -operates two strip mines and a tipple in Barbour and Taylor Counties . In 1957 Sinsel sold coal valued at $284,668 . In 1958 the gross volume of sales totaled $77,945. Chester Sinsel testified, credibly and without contradiction, that 99 percent -of the foregoing production was sold and shipped via the Baltimore & Ohio Railroad to customers in Ohio, Pennsylvania, and Maryland. On the foregoing facts I conclude and find that each of the Charging Parties, viz, Blue Ridge, Marra Brothers, M & T, Thompson, and Sinsel, are engaged in com- merce within the meaning of the Act .3 ,'William J Casella further testified that some of this coal was sold through Gerstell & Company, a brokerage firm located in Grafton, West Virginia, but that the coal for all sales brokered through Gerstell was shipped via the Baltimore & Ohio Railroad directly from Buckhannon to consignees located outside the State of West Virginia 8 Respondents contend that as to some of the Charging Parties the above figures are not corroborated by various annual statements filed with,the Department of Mines for the State of West Virginia, and further that some of the Charging Parties were delinquent in filing their gross sales tax returns with the State Tax Commissioner. Whether or not the Charging Parties have complied with the requirements and regulations of the different State agencies which have jurisdiction over their operations is neither relevant nor mate- rial to the issue as to whether they are engaged in commerce within the meaning of the National Labor Relations Act. The foregoing findings are based on the documentary evidence and the credible testi- mony adduced at the hearing In those instances where a witness gave a summary as to the total volume of business, all the books and records of original entry were in the courtroom and available to opposing counsel for inspection At the direction of the Trial Examiner they remained available to counsel for the Respondents at all times throughout the hearing. With the fullest opportunity , therefore, to cross-examine the Charging 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED Respondents, United Mine Workers of America (herein called International or UMW) and United Mine Workers of America, District 31 (herein called District 31), concede that they are labor organizations within the meaning of Section 2(5) of the Act. Local 2311, however, contends that it does not come within the statutory definition. The facts as to the latter organization are as follows: Local 2311 holds a charter from the International and is a constituent local of District 31. For many years it functioned actively as the bargaining agent for the employees of the Simpson Creek Colliery Company, Galloway, West Virginia. In October 1957, that mine was shut down and has not been reopened. As a result, Local 2311 has no members who are currently employed. It does, however, have 212 members who are either pensioners 4 or laid-off employees of the Simpson Colliery. The latter pay dues of $1.25 per month to Local 2311. The organization also has a president, vice president, recording secretary, and a financial secretary and treasurer. The latter official receives a small salary. The constitution of the International details the steps which may be taken to disband a local if a colliery has been permanently abandoned but the International has never taken any such action with respect to Local 2311. The latter organization has retained its charter and seal and, pre- sumptively, with its complement of officers, is prepared to represent its members as to any reemployment or other rights they may have. Under these circumstances, it is clear, and I find, that Local 2311 is a labor organization within the meaning of the Act. United Mine Workers of America, District 31, et al. (L. E. Cleghorn), 95 NLRB 546, 549-550, enfd. 198 F. 2d 389 (C.A. 4), cert. denied 344 U.S. 884. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events Harry Myers, field representative of District 31 and chairman of its organizing committee, testified that in March and April 1958, he was actively engaged in an organizational campaign in Barbour and Taylor Counties. In this effort Myers was assisted by four International representatives who were assigned to work with him, viz, Eli Zivkovich, Joseph Gladski, Renaldo Cappellini, and William Murray. The organizational campaign was directed toward the employees of rune small coal producers in the same immediate area. These were, in addition to Marra Brothers, M & T, Blue Ridge, Sinsel, and Thompson (the five Charging Parties involved in this case), the Riley Coal Company, P & J Coal Company, C & P Coal Company, and Craigmoor Coal Company.5 In April to June, work stoppages occurred at all of these mines. On April 22, many of the employees at Marra Brothers and M & T did not report for work. At about the same time a similar development occurred at the Blue Ridge Mines. On about May 12 many of the employees at Sinsel quit work and on June 9 a work stoppage began at the Thompson mine and tipple.6 In each instance after the employees quit work, union representatives demanded that the Charging Party involved recognize the UMW and sign a contract with the International? None of the Charging Parties acceded to these demands. Subse- quent to the outset of the work stoppages and the foregoing demands for recog- nition, groups of people assembled at or near the entrances to the mine properties involved. At times these groups were relatively small but on other occasions they consisted of several hundreds. Employees who attempted to report for work had to pass through these groups and when they attempted to do so were charac- terized as "scabs" and by other epithets characteristic of a labor dispute. Most of the incidents which form the basis for the allegations of restraint and coercion Parties, the Respondents were unable to assail successfully either the testimony or the business records on which the above findings are based. N L.R.B. v. W B Jones Lumber Company, Inc., et al., 245 F. 2d 388, 391-392 (C.A. 9). 4I.e., former miners who are drawing a pension from the United Mine Workers welfare fund. As used hereinafter in this Report "pensioner " will mean only those who are in this category. 6 The last two named are also referred to in the record as Railing and Kauffman, respectively. O During this same period , similar work stoppages also occurred at the mines of the four other coal operators mentioned earlier. 7 Referred to throughout the record as the standard UMW contract, or National Bituminous wage agreement. UNITED MINE WORKERS OF AMERICA, ETC. 155 set out in the complaint occurred among these groups assembled at or near the mine entrances. Myers denied that he had called any of the employees of the Charging Parties out on strike and he denied that any of the men who gathered at what he chose to term "assembly points" were under union direction or control. At the hearing, repre- sentatives of the Respondents preferred not to call these people pickets or to describe them as having formed a picket line. Instead they endeavored to characterize them as "assemblies" or "assembly lines." This was a distinction, however, which Re- spondents' witnesses, and even its counsel, found difficult to maintain. Thus, Russell Mayle, a principal witness for the Respondents was asked: Q. Did the Mine Workers establish any picket posts or picket lines in Taylor County? A. Picket lines or assembly places are what they are called. Some called them picket lines, but I would call them more or less an assembly place. Eli Zivkovich, International representative, testified that no picket lines were estab- lished. On the other hand, in a prehearing affidavit as to the incidents in question he consistently used the word "pickets" to describe the people who were with him.s When asked what he meant by an "assembly line," Harry Myers testified, "Well, the assembly line is where the boys meet, get off the highway, discuss welfare of the organization, discuss compensation, discuss the organization there about the union and talk about signing up cards, membership cards. That's what your assembly line is for. . . . We don't talk every morning, but we assemble there and eat-we eat sandwiches there. We are not roaming all over the county. We assemble at one point." Even counsel for the Respondents found it difficult to maintain any distinction between an "assembly line" and a "picket line." When interrogating one of his witnesses (James Pope), Mr. Meisel asked: Q. Now at that time were the pickets stationed along the road? A. Yes, sir. Later, he asked this same witness Q. Did anybody tell you you had to be on the picket line because you were getting these payments? A. No, sir. On another occasion, Mr. Owens asked a witness for the Respondent (Eli Zivkovich) : Q. Now, did the men assembled there-pickets or whatever you want to call them-did they yell anything at these people, Marra Brothers' employees, as they drove by? A. They did. Counsel for the International asked another of his witnesses (William Bland) : Q. Did you say anything to these pickets about yelling at them? A. No, sir. Later, Mr. Owens asked Eli Zivkovich: Q. "[Did] Norman Watkins ever report to you on the picket line? A. No, he didn't, sir." The distinction was lost completely on the Respondents' rank-and-file witnesses most of whom consistently referred to the assemblages as "picket lines." 9 In 8 This affidavit was received in evidence during the cross-examination of Mr. Zivkovich. O For example, the following passages appear in the testimony of the Respondents' witnesses. JOHN MADOIX JR.: "We held this picket line up there . . . we didn't have no picket line in the afternoon-just in the morning . . . We decided we were going to have a picket line the next morning." STEPHEN B. MCGILL: "Well, I heard people talking . .. when we was out on the picket line, out with the men. . . . I told them I went out on the picket lines, out where they was at." FOREST MCDANIEL: "Q . . . after you signed the [Union] card what did you do? A. Well, I had been on the picket line off and on since." FRANK CROIKSHANK : "We formed a line, formed a picket line the next morning (April 221 at the crossing at Brownton . . . CHARLES KNOTTS : "On the night of June 9th I wasn't on the picket line. I was in the morning." 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD addition, some of the witnesses for the Respondents testified that they carried signs and banners such as "Be wise and organize" and other slogans commonly associated with picket line activity.10 In view of this testimony on the part of the Respond- ents' own witnesses, the groups of people and the assemblages in question will be referred to hereinafter in this report as pickets and picket lines. Further, those employees who quit work and joined the pickets will be referred to as strikers and those employees who did not will be referred to hereinafter as nonstrikers." At the time of the hearing, none of the Charging Parties had acceded to the demands of the UMW for recognition, nor had any of them signed a contract with that union. Picketing, of the character outlined above, which began in April 1958, was still in progress when the hearing closed. Although the Respondents disclaimed all responsibility for the actions and conduct of the pickets it was conceded that Myers and the International representatives visited the picket sites regularly, where they talked with and advised the pickets. Eli Zivkovich stated that he and the other organizers "would talk to them [the pickets] and explain to them any questions they may have to ask. We advised them that they can win their strike against the coal company." He was then asked, by Mr. Owens, "Was this a strike or a lock- out" and answered "Lockout; win their fight, I meant to say, against the coal company, and come up with a contract if they behaved themselves." Each day the men assembled at the picket sites at very early hours, often at 5 or 6 a.m. Even during the winter months the pickets continued this schedule, so that they were at these points long before daylight. The nonstrikers who would have to pass them reported for work at 6:30 to 7. Many of the Respondents' witnesses testified that they were at the picket sites much of the time after they quit work. One (Charles Knotts) testified "around two-thirds of them [the strikers] have been attending pretty regular." In addition to the latter, a considerable number of UMW pen- sioners from the neighboring communities have been on the picket lines.12 Union support of the strikers was not limited to advice from Myers and repre- sentatives of the International. From the outset of the picketing, District 31 provided sandwiches and coffee each morning for those who assembled at the Brownton and Buck Run locations. At Brownton it also erected a shelter for protection of the pickets during the winter months. Far more significant financial support how- ever. began in April 1958, when District 31 started payments of $30 per week to the employees involved in the work stoppages. L. Clyde Riley, secretary-treasurer of District 31, testified that each week he went to the two principal assembly points for the pickets, Buck Run and Brownton, and there distributed $30 checks to approximately 138 men.13 According to Riley, the determination as to whom would receive these payments was made in discussions which he had with Myers and the four representatives of the International who were in charge of the or- ganizational campaign. Riley testified that the only criteria for payment was whether a man had "voluntarily left his employment [or been discharged] for recognition of the United Mine Workers." From April through December 1958, Riley testified that he disbursed approximately $180,000 in this manner. Most of this amount was obtained by District 31 as an advance from the International-` At the time of the hearing these weekly payments were still being made. The Respondent denied that the strikers were paid this money to picket and denied that any conditions were attached to its receipt. There was evidence, how- 10 See the testimony of Hugh R Moore and Ernest McDaniel. 11 The Respondents contend that at some of the mines Involved in the organizational campaign the employees were locked out. Zivkovich, however, conceded that the em- ployees of Marra Brothers, Blue Ridge, and Sinsel had gone on strike. The issue as to whether the employees were locked out or went on strike Is not involved in the instant proceeding. Consequently, use of the terms "striker" and "nonstriker" hereinafter In this report Is not to be construed as a determination of whether the Individuals involved were on strike for union recognition or had been locked out because of their union activities 12 Renaldo Cappellini, representative of the International testified that, although retired from the mines, these men have a more than academic interest in the continued organiza- tional success of their union. According to Cappellini, the retired miners who draw a pension from the 13MW are interested In helping to organize the nonunion mines in order to enhance further the security of their pension fund is He testified that be knew these were men who had worked for the Charging Parties and other employers in the Barbour and Taylor Counties area whose employees the UMW was seeking to organize. 7'4 Riley testified that from April through December 1958, the International advanced District 31 approximately $ 190,000. UNITED MINE WORKERS OF AMERICA, ETC. 157 ever, that at least some of the miners were told that service on the picket line was a prerequisite to qualifying for the weekly payment. Thus, Norman Watkins testified that after he signed a card in the UMW he acted as a picket at Buck Run and that while there both Myers and Zivkovich told him that to get the $30 an individual had to serve on the picket line every day unless he was sick. Watkins further testified that he reported for picket duty to Zivkovich and another picket named Powell and that when he did so they wrote his name on a piece of paper.15 Clarence Wolfe, an employee of Marra Brothers, testified, that when William Bland sought his signature on an application card in the UMW, Bland told him that he would not have to be on the picket line the first week but that that would be required thereafter and that he would then get $30 a week.16 According to the credible and undenied testimony of Howard C. Williams, a nonstriker in the employ of M & T, Myers asked him to sign a UMW card and told him that if he did so he would "draw $30 a week." Even one of the Respondents' witnesses testified that as soon as he signed a UMW card he was ordered to report for picket duty. Thus, Forest McDaniel, a striking employee of Blue Ridge, testified that he signed a UMW card at Mayle's house on May 7, 1958, and ,that, after he had done so, Mayle told him "to come to Buck Run the next morning." According to McDaniel, he was at Buck Run the following day at 5:30 a.m, and when he arrived about 100 other strikers had already gathered there. This witness, and others as well, testified that the strikers continued to assemble at this early morning hour both at Buck Run and Brownton. During the winter months, this meant, of course, as Frank Crinkshank, one of the strikers testified, that they were assembled at their posts long before daylight. B. The evidence as to the events in question 1. Marra Brothers The Marra Brothers mine and tipple involved herein are located approximately 2 miles from the village of Brownton on what was commonly referred to at the hearing as the Grafton Coal road. In April 1958 this mine had about 23 employees. On the evening of April 21, 1958, after the organizational campaign had been in progress for sometime, employees of the Marra Brothers, M & T, Sinsel and Craig- moor mines,17 met at the UMW hall in Brownton. About 40 men were present. Some had already signed UMW cards. Many others signed cards at this meeting. John Maddix, Jr., an employee of Marra Brothers, testified that those present "decided we were going to have a picket line the next morning." James Pope, another Marra employee, was designated to contact District 31 the next day. Early on the morning of April 22, the employees gathered at the Brownton intersection of the Grafton Coal road.18 Those present elected a committee con- sisting of Maddix, Pope, and Bradford Montgomery from the Marra mine and Frank Cruikshank, an employee of M & T. Shortly thereafter, Pope telephoned the headquarters of District 31 to request assistance. In response to this call, Myers and Zivkovich arrived at Brownton at about 9 a.m. In the meantime, at about 6 a.m., when the three Marra Brothers, Sammie, Louis and Robert, arrived at the intersection, a conversation ensued between Maddix and Sammie Marra. According to Maddix, "I told him I was elected spokesman of the whole group. . [and that we had] appointed Harry Myers and Eli Zivkovich as our representatives to do our negotiating for us . . .Sammie Marra also testified, credibly, that when he asked why the men were not at work Maddix replied "We are on strike and we are being paid $30 a week to stay out." This 15 Myers and Zivkovich denied ever having told Watkins that be was under an obliga- tion to picket. The Respondents vigorously assailed Watkins' credibility with testimony from both Myers and Zivkovich that they had sent Watkins home on one or two occasions when he appeared at Buck Run in an intoxicated condition. On the other hand, Zivkovich conceded that he did not thereafter direct that Watkins be taken off the list of those who were getting $30 a week. Furthermore, he conceded that his own recollection of Watkins was none too clear and that at an unemployment hearing in September 1958 he had been unable to identify Watkins. The denials of Myers and Zivkovich as to this matter are not credited. I accept the testimony of Watkins as true. 1e The testimony of Wolfe was credible and undenied. 17 The Craigmoor (or Kauffman) tipple was also located on the Grafton Coal road and only a short distance from the Marra Brothers' property. 18 This was the crossroads at which the employees customarily turned off the highway in Brownton to proceed along the Grafton Coal road to the Marra and Craigmoor mines. It was also used by some of the Sinsel and M & T employees. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony was corroborated by Louis Marra.19 The Marras proceeded through to Brownton and on this occasion met Myers and Zivkovich with the pickets. Ac- cording to Marra, they stated that they wanted him to sign the UMW general contract and he promised that he would meet with them later that morning. The first bargaining conference was held at about 10 a.m. that day in the law office of Paul Ware, counsel for Marra Brothers. The employer was represented by Sammie Marra and Ware. The union delegation consisted of Myers and Zivkovich as well as Maddix, Montgomery, Pope, and Cruikshank, the latter four of whom were introduced to Marra as a "committee representing the men out on strike." 20 The union representatives asked that Marra Brothers sign the standard contract which the International had negotiated for the bituminous coal industry. Marra suggested that a contract on a smaller scale, negotiated for their mine alone, would be acceptable, but Zivkovich stated, "No, you have to sign this contract. . This contract has already been bargained for. It has been negotiated already." When Marra declined to sign the standard UMW agreement, Myers stated "If you don't sign that contract you won't work again. You won't work tomorrow." After this meeting the parties held one more bargaining conference. This was on April 25, when the three Marra brothers met with Myers and Zivkovich in Brownton. The latter again requested that the Marras adopt the UMW agreement which applied to the entire bituminous field. When the Marras declined, Myers told them that that was "the last time that he would talk with us about it. .. ." No further meet- ings between the Union and representatives of Marra Brothers and M & T have been held since that time.21 From April 22 pickets were present at the Brownton intersection on substantially every workday. Sergeant R. R. Karickoff, who was in charge of the West Virginia State Police for Barbour County, testified at some length as to the circumstances under which he observed the picketing. For several months after the strike began he and other members of his detachment were at the Brownton site almost every morning. He testified that the State police arrived there at about 6:30 a in. each day and that by that time some 200 to 400 pickets would have already gathered at the intersection. Karickoff, who was a credible witness in every respect, testified that there were at least 200 there every morning in June. Other witnesses for the General Counsel testified that the number varied from 50 to several hundred. The union witnesses were more conservative, but even Zivkovich testified that on those days when the District 31 representative delivered the weekly checks for $30, the crowds would number up to 250. He further stated that the least he ever saw assembled at the Brownton crossing was from 10 to 15. According to Sergeant Karickoff, ". . . all of us that were there (i.e., State policemen) would be out in the road keeping them back off the highway so these employees could get through." This same witness testified that Harry Myers was present practically every day and that Zivkovich was there with almost equal frequency. He recalled that Gladski and Cappellini, the other International representatives, were also there several times each week. According to Karickoff, the largest number of people was present at about 6:30 a.m., but by 10 a.m. very few were left at the intersection. He testified that the large crowds of pickets never interrupted any ordinary traffic along the road and that it was only within the hour of 6 and 7 a.m. when the Marra em- ployees arrived that he and his men had to clear a path through the pickets. In this connection, counsel for District 31 asked Sergeant Karickoff "From your personal observation the road was kept open for the most part?" The latter answered, "It was kept open when we were there in number, yes." The General Counsel offered a great volume of testimony from witnesses who endeavored to report for work when no police were present. Shortly after the strike began Robert Riffle and Raymond Wilson, two nonstrikers, endeavored to cross the picket line at the Brownton intersection . Some 75 to 100 men were gathered at this corner, including Harry Myers, Lee Shoulders, Aussie Kimber, John Maddix, Jr., and Steve Maddix. The pickets formed a solid line across the road and told the two nonstrikers there would be no more work until Marra Brothers signed a contract with the Union. No police being present, Riffle and his companion is Maddix testified that he did not recall having made this remark . I find the testi- mony of the Marras more credible. Zivkovich testified that at one point, when Marra questioned the presence of Cruik- shank, on this committee , since he was an employee of M & T, "we explained the men from both operations had quit work that day and we had asked them to come along to represent both of the companies ' employees." n The quotations in the above paragraph are from the credited testimony of Sammie Marra which , in this connection, was also uncontradicted. UNITED MINE WORKERS OF AMERICA, ETC. 159 turned around and returned to their homes 22 On about May 1, two other Marra employees, Herbert Robinson and Carl Keene, were stopped at the Brownton in- tersection by from 20 to 25 pickets, who were standing in the road and who announced "This is all of it. You just as well go home. The strike is on." Robinson testified that Aussie Kimber and Lee Shoulders were among the pickets and that the former asked them to sign a UMW card. When Robinson and Keene declined to do so, the pickets told them they "wasn't going to work." The two nonstrikers made no further effort to report that morning. Instead they returned to their homes. About 2 weeks later these same employees started coming to work via a route known in the record as the Pepper road, which enabled them to avoid the pickets at Brownton. As they proceeded to work one morning late in May, however, this route was blocked with a truck across the road and some 200 pickets milling around it. In- cluded in the crowd were Myers, Aussie Kimber, and Russell Mayle. The pickets asked the two nonstrikers to sign a UMW card. When they refused the pickets told them they could not proceed to the mine. Robinson and Keene then returned to their homes and did not attempt to work again for several weeks.23 One afternoon about the middle of May, Sammie Marra turned off the highway at the Brownton intersection and proceeded along the Grafton Coal road. As he did so, a car driven by Lee Shoulders followed, and shortly thereafter passed Marra and blocked the road in such a manner that Marra was compelled to stop. There- upon, Shoulders, Aussie Kimber, Jess Wilfong, and three others got out of their car. Wilfong asked Marra where he was going and then grabbed him by the throat. As Marra started to back his truck away, Wilfong grasped the steering wheel and the truck partially overturned when it rammed into the bank along the road.24 On about May 20 another incident occurred at the Brownton intersection. Sergeant Karickoff testified that about 300 pickets had congregated at the crossing when he and several other State police arrived. Sammie and Robert Marra, driving a truck, attempted to lead two cars of Marra employees through the crowd. As they did so, the pickets moved out around the truck and cars so as to completely block them. Sergeant Karickoff testified that only after he and the other State police present had moved in among the milling crowd was it possible to clear the road to such an extent that the Marras and their employees could proceed on to the mine. Included among the pickets present were Myers, Steve Maddix, William Bland, Lee Shoulders, and Jess Wilfong.25 Clifford Wagoner, one of the Marra employees that was attempting to get across the picket line, testified that as they moved through the crowd, pickets called out epithets and yelled "Don't let them through. Wreck them, We're going to beat up on you." 26 Sergeant Karickoff testified that the as The foregoing is based on Riffle's credible, undenied testimony 23 The foregoing is based on the credible, undenied testimony of Herbert Robinson Kimber never testified Myers and Mayle denied being at the Pepper intersection on other occasions but were not asked about this particular incident. Sergeant Karickoff testified that (luring this period he occasionally saw both Myers and Mayle at this point Clifford Wagoner, a Marra employee, testified as to a similar incident at the Pepper intersection According to Wagoner, on about May 11, Harry Myers and a large group of pickets blocked the road and refused to let him proceed to the mine. Wagoner, how- ever, was very vague as to the date of the occurrence. Although he at first testified that it took place on May 11, other portions of his testimony indicated that it must have occurred much later. In any event, Myers credibly testified that on May 11 he was not in Barbour County Consequently, in view of the confusion in Wagoner's testimony as to the approximate date when this incident occurred it will not be considered further. n As a result of this incident, Wilfong was arrested for assault and battery and paid a fine. Shoulders was arrested for obstructing traffic; his case was still pending at the time of the hearing. Neither testified at the instant proceeding. The foregoing findings are based on the credited, undenied testimony of Sammie Marra. 25 The foregoing identification of those present is based on the credible testimony of Sammie Marra. Myers testified that he was not at Brownton on May 20 and that, in addition, on no occasion did he ever see the pickets block any of the roads. On the basis of the record herein I find that testimony completely incredible and rely instead on the testimony of Marra. Bland did not testify as to this incident. Steve Maddix, Shoulders, and Wilfong were not called as witnesses iS Floyd Wagoner, brother to Clifford and also a nonstriking Marra employee, was present. He testified that when they were going through the picket line a "one armed guy" told Clifford "he ought to thank his God he was still living." Renaldo Cappellini, International representative, had only one arm and the General Counsel endeavored to establish that it was Cappellint who made the remark. When Clifford Wagoner was on 1-60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scene on this particular morning was duplicated frequently thereafter at the Brownton intersection. According to Karickoff, from May through July, the pickets "were. out in the road all of the time unless there were some of us there-we would have to just get out right in the crowd when the cars.[of nonstrikers] came through." One afternoon about June 1, two nonstrikers, Clarence Wolfe and Herman Riley stopped at a grocery store in Brownton. Wolfe was accompanied by his wife. A group of 40 to 50 people quickly gathered around the employees' car. Included in the crowd were John Maddix, Jr., and Aussie Kimber. According to Wolfe, Maddix held up a newspaper and declared "I see where they blew up another scab place up here." Kimber, in the meantime, came up to the automobile, and asked Riley and Wolfe to join the UMW. While doing so, Kimber picked up a hatchet which lay on the floor of the car and handed it to his wife. According to Wolfe, at this point Mrs. Kimber brandished the hatchet before him and stated that she would "chop my brains out." Wolfe testified that he was permitted to leave when he told the crowd that he had to take his wife to a doctor. According to Wolfe, "They told me I could go but said I had better join up." 27 Early one morning about June 9 another incident occurred at the Brownton in- tersection. The Marra brothers and two employees, Walter Cleavenger and Frank Menear, endeavored to pass through a crowd of from 200 to 300 pickets. No police were present. The Marra group finally went through, but in the process they were assailed by rocks and jeers. Zivkovich was present throughout this occasion. Steve Maddix and Jess Wilfong were also there. Clevenger credibly testified that Russell Mayle was among those who threw stones at their cars. The same witness testified that William Bland threw a bottle which hit the window of the car in which Cleavenger was riding.28 The windshield and door glass on one Marra car were broken, as was the aerial on another. Louis and Sammie Marra testified that it was Zivkovich who had broken the aerial and that he had done so after he had called to the throng of pickets "Come on boys, let's get them " It was clearly established that there had been some property damage Sergeant Karickoff testified that when he arrived at the scene shortly thereafter he observed that the windshield on Louis Marra's truck was broken and that an aerial on one of the Marra cars was damaged. I am also satisfied that the remark "Come on boys, let's get them" was made by someone in the crowd whom the Marras heard. On the other hand, Zivkovich denied that he had made this remark or that he had broken the aerial. His denials in this respect were convincing and are credited. Harry Myers was not present with the pickets while the Marra group was attempting to reach the mine. At that moment he was in his room at a home in Brownton where he was staying during this period. Sergeant Karickoff testified that he arrived in Brownton shortly after the Marra group had gone through the picket line and that he immediately contacted Myers to ask about the rock throwing. According to Karickoff's undenied testimony, Myers stated "they tell me there were [rocks thrown] but I was inside." One morning in June, Walter Parks and Howard C. Williams, both nonstrikers then in the employ of Marra Brothers, were prevented from going to work by pickets who stopped them near Pepper. According to Parks, when he and his co- worker turned on to the Grafton Coal road they found the highway blocked with an automobile parked across the road and some 200 to 250 men around it. Upon discovering this scene, Parks and Williams did not stop but drove on to Clarksburg. the stand, however, he testified that It was Harry Myers who made the remark to him Both Myers and Cappellini denied having made the remark in question In view of the fact that neither of the Wagoner brothers clearly identified either of these union officials, and the further fact that they were Inconsistent with each other, I shall not credit their testimony as to foregoing remark. Cassell Duckworth, an employee for an independent coal trucker, testified that on about May 22, as he was hauling coal for Craigmoor he was stopped by a one armed man and two others According to Duckworth, the one armed man told him that If he hauled any more coal "they was going to bring their gang and stop us " The General Counsel attributed this incident to Cappellini. Apart from the fact that Duckworth testified that the individual in question bad only a right arm, whereas Cappellini, who appeared on the stand, had only a left arm, the balance of Duckworth's identification was In- sufficient to establish that it was Cappellini who made the threat. 27 The foregoing is based on the credited testimony of Wolfe Maddix conceded that lie was present on this occasion but denied that he made the remark attributed to him by Wolfe. Kimber did not testify. Maddix's denial was unconvincing and is not credited 11 Bland conceded he was present on this occasion but denied throwing anything, or having seen anything thrown Mayle denied that he was present. Their denials were most unpersuasive and are not credited. UNITED MINE WORKERS OF AMERICA, ETC. 161 As they did so, three cars followed them all the way to Clarksburg. Parks testified that although he did not know the names of any of the men in the pursuing cars, he recognized some of them as those whom he had seen on the picket lines. One morning about the middle of June, as Howard C. Williams was on his way to work and within a mile or two of the Marra mine he was stopped by a group of 10 to 12 men on the Grafton Coal road. He was questioned as to where he was bound and when Williams gave an evasive answer, the men in the group cursed him and one threatened, "If you come over this hill another time you had better have your guns with you because we have got guns . . . we will kill you." With this, Williams turned around and returned home. One Saturday in the latter part of June,29 Parks, Williams, and several other employees left the Marra mine in a caravan of three trucks. Louis Marra was driving one of the vehicles. Only a short distance from the mine and as they pro- ceeded along the Grafton Coal road toward Pepper, they were halted by some 200 to 250 men. In addition, a car was parked in the middle of the road. The non- strikers endeavored to go forward by edging past the road block and speeding through the crowd. As they did so, rocks were thrown at their cars and several shots were fired.30 One of the bullets grazed Williams' arm and injured him slightly. Louis Marra credibly testified that among those present in the crowd along the road at this point were Lee Shoulders and several other strikers whom he knew, including Frank Cruikshank, an M & T employee 31 A few days later, while on his way to the mine, Williams stopped at the home of Louis Marra in Galloway, West Virginia. While Williams was standing in front of Marra's house, Ed Fluhardy, a striking employee of M & T, approached him and said "- I am going to kill you if you go over there to that mine." At that point Marra arrived and ordered Fluhardy off the premises.32 Clarence Wolfe lived only a short distance from the Marra mine and often walked to and from work. He testified, credibly and without contradiction, that on several occasions during the summer while he proceeded along the road and when the police were not present Lee Shoulders endeavored to run him down with his automobile and at the same time characterized him as a scab and by other epithets. During the latter part of June, about 10 of the nonstrikers adopted the practice of living in a shanty on the Marra mine property during the workweek and leaving only on weekends. A number of these men were from the vicinity of Buckhannon, in the adjoining county. On the evening of Sunday, June 29, a car containing seven of the nonstrikers 33 was proceeding from Pepper along the Grafton Coal road on. the way to the Marra mine. Paul Gooden was the driver of this automobile. He testified at length, in a frank and completely credible manner, as to the events which occurred that evening. According to Gooden: As he and his coworkers came within about 1,000 feet of the mine entrance, the car was stopped by a large group of people who thronged across the road. One of those who stopped the car asked if Gooden and his companions were bound for the Marra coal mine. When, Gooden gave a noncommital response, one of those who had come up to the car started hitting him in the mouth. Gooden put his car in gear and started to move away. As he did so, rocks were hurled at the automobile and several shots were fired. He proceeded on through the crowd until he reached a point some distance beyond Brownton. By that time most of the glass on his car, including the windows, lights, and windshield, was broken and a bullet had gone through a front tire. He also discovered at this stage that two of his passengers, Lloyd Kelly and Corder Liggett, were missing from the car. Gooden estimated that there were at least 200 people in the crowd along the road to the mine. He further testified that Harry Myers was present when one of the pickets had struck him. William Bland was likewise present at the time. According to Gooden, "He [Myers] wasn't doing 29 The approximate date as to this incident is based on the credible testimony of Howard C Williams. 20 Louis Marra credibly testified that be heard four shots 31 The foregoing findings are based on the credible , undenied testimony of Parks, Williams , Louis Marra, and Sergeant Karickoif As noted earlier, Shoulders did not testify. Cruikshank, though called as a witness by the Respondents , did not testify as to this incident. 32 The foregoing is based on the credible testimony of Williams . Fluhardy conceded having had a conversation with Williams at the time and place in question, but denied that he had made the threat attributed to him His denial is not credited. 83 These were Paul and Stanley Gooden , Floyd Wagoner , Lloyd Kelly, Corder Liggett, Ishmael Zirkle, and Raymond Bostick. 5 3 (43 9--61-vol 129-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anything to prevent me from getting hit, but so far as doing anything , I didn't see him do anything . . . He was just standing towards the right front side of the car when I pulled down and stopped." It was at this point that Gooden had lost two of his passengers . Liggett had jumped from the car and run out through the crowd. Lloyd Kelly, the other one, was dragged from the car and severely beaten. Kelly testified that as the car stopped, Myers shouted "Drag them out of the car and beat them up," whereupon four or five others whom Kelly did not know pulled him out of Gooden's car and struck him about the face and mouth. According to Kelly, his assailants quit only when Myers told them they had gone far enough and ordered them to carry Kelly into a shanty along the side of the road. Kelly's nose was broken during the assault and his injuries kept him off work for approximately 3 weeks.34 It was obvious that Gooden and his associates had come prepared for trouble. Gooden conceded that both he and Zirkle had guns with them. The pickets re- lieved them of these weapons at the moment when Gooden first stopped at the picket line 35 Gooden, Zirkle, and the others in the car that night denied that any of these guns had been discharged at the pickets. The testimony of the many witnesses for the Respondents presented an entirely different story. In substance, it was that on that particular Sunday evening William Bland had driven up the Grafton Coal road and, with a public address system mounted on his automobile, had begun to play recorded music for a group that just happened to congregate in the area . Bland and other witnesses for the Respondents described this gathering as a "rally" to hear some religious music that was in no way connected with their organizational efforts. Bland testified that they had been there only a short while when he heard a shot fired some distance up the road; that he proceeded to investigate and found a man bleeding from the nose and standing beside the watchmen's shanty near the Craigmoor tipple. According to Bland, this individual identified himself as Kelly and stated that "he hurt hisself or fell out or jumped out of the car." 36 Two other witnesses for the Respondents 37 testified that shots came from Gooden's car as it sped down the hill toward them Myers testified that he heard four or five shots and that they appeared to come from the left side of the car. According to Myers, he first saw Kelly when the latter was near the shanty. The testimony of these witnesses for the Respondents was most incredible. The attempt on the part of Bland and the others with him to explain their presence at the scene as an innocent Sunday evening rally to hear some religious hymns and other records was obviously far removed from the facts. The location they selected was along a lonely, narrow, county road. There were no churches, stores, or any habitation in the area that would attract a throng of people there on a Sunday evening. Nothing, that is, except for the Marra and Craigmoor mines Bland con- ceded that he parked his car at the driveway which led to the Marra tipple. Another group of people were strategically located at the entrance to the Craigmoor tipple There were striking employees of both mines in the crowd. After numerous wit- nesses for the Respondents had endeavored to establish that their outing had no connection with the current labor dispute, on cross-examination, Myers was asked the following questions and gave the answers which appear below: Q. What was the purpose of being up there . . . the night of this shooting? A. What I thought the boys was going to do was go up there and talk to these fellows coming out of the other county, and persuade them to cease work . . . These strike breakers coming from Buckhannon and taking these boys' jobs. Q. Who was coming in from Buckhannon to take these boys' jobs? A. Well, these 7 men that was in that car. 31 The foregoing testimony of Gooden and Kelly was corroborated by Floyd Wagoner and Ishmael Zirkle. Wagoner also testified that Russell Mayle was present when Gooden stopped at the picket line, that Mayle pointed a gun at Gooden and ordered him not to move, and that when this occurred he (Wagoner ) knocked the gun from Mayle's hand. In addition to the fact that no other witnesses testified as to Mayle's participation in such an incident, Wagoner's identification of Mayle as one of his assailants was not persuasive enough to overcome the force of Mayle's denial that he was among those present. Con- sequently , Mayle's denial is credited. 35 These were subsequently turned over to the State police and both Gooden and Zirkle were fined for carrying loaded firearms without a permit. 88 The quotation is from Bland 's testimony. aT Franklin Cavalier and Hugh R. Moore. UNITED MINE WORKERS OF AMERICA, ETC. 163 Sergeant Karickoff arrived at the scene later in the evening.38 He testified that there was a crowd of some 150 people present at the site, and that among them were Myers, Bland, and Steve Maddix. As to the identity of the others in the crowd he testified "everyone I saw [there] I had seen before or saw afterwards around the picket line at various times." It is apparent from the foregoing that Myers, Bland, and their associates expected the arrival of Gooden and the other nonstrikers at the mine that night and that they were prepared to prevent it. Be- cause of their evasiveness as to the purpose of their vigil and their failure to offer any credible testimony as to the manner in which Kelly arrived at the side of the road with his face cut and bleeding, it is my conclusion and I find that the testimony of Gooden and Kelly as related earlier herein is the more credible and presents a substantially accurate account of what occurred on the night in question. The unsuccessful attempt which Robert Riffle and Raymond Wilson made in April to cross the picket line at Brownton has been discussed above. Later, Riffle started using a different route to reach the mine. This was along what was known as the Stewart Run road. About the middle of June and after he had been doing this for a short while he found the road blocked with cars one morning and a large group of pickets in the area. Among their number were Russell Mayle, Lee Shoul- ders, and Aussie Kimber. He was unable to proceed and did not report for work that day. Early in August, and as a result of Riffle's difficulties in reporting for work individually, Sammie Marra began the practice of picking up Riffle at his home and driving him to the mine. Riffle lived at Flemington, a town about 6 miles from the Marra property. One morning about the middle of August, Sammie Marra, accompanied by Walter Cleavenger, another employee, arrived in Flemington. As he attempted to enter the street which led to Riffle's home the way was blocked by Steve Maddix and several other strikers who had parked their car in the middle of the road. When they refused to move, Marra turned around and left without reach- ing Riffle. The following day, Marra found the same group at the intersection again. This time, however, a large number of men were standing around Maddix and his car. On this occasion also, Marra was unable to get any closer to Riffle's house and, after a short delay, abandoned his efforts to do so that morning. Marra's testimony as to the above events was corroborated by Riffle. In addition, the latter testified that on the second day, which he stated was about August 15, while the crowd of people thronged about the intersection down the street, several cars of pickets patrolled the area in front of his home. According to Riffle, Steve Maddix, Bland, and Shoulders were in these cars which drove back and forth along the street in front of his home for approximately 2 hours that morning. The patrolling pickets never left their cars but called out names and jeers as they drove past his house.39 Respondent's witnesses as to the above incident were Myers, Zivkovich, and two residents of Flemington, Mary L. Marks and Robert Napiall. Myers and Zivkovich testified that at about the time in question a large number of employees of the C & P Coal Company had gathered at the Flemington intersection to meet with a field examiner of the Labor Board in connection with a settlement of unfair labor practice charges involving that company. Mrs. Marks and Napiall testified that they had seen this crowd of men at the intersection but had not observed any picketing in the area. Both Myers and Zivkovich conceded that they were present there that day, but the latter was most confused in his testimony as to precisely when he was there. The Respondents asked no questions of Bland about this matter when he was on the stand and Maddix and Shoulders were never called as witnesses. As a result, there was no specific denial of the testimony of Riffle and Marra about the participation of these three individuals in any picketing activity before Riffle's home or at the Flemington intersection. Consequently, it is my conclusion, and I find, that the testimony of Riffle and Marra was credible and an accurate account of what occurred. Witnesses for the Respondent consistently testified that they never saw cars blocking any road or any occasion when pickets prevented ingress to, or egress from, any mine. Apart from all the testimony of witnesses for the General Counsel to the contrary, one further incident related by Sergeant Karickoff should be noted here. Thus, he testified that one Sunday in the latter part of the summer while on one of his patrols, he found two private automobiles parked front to back across the entrance to the Marra mine. He thereupon wrote out and served traffic tickets upon two men present whom he described as men "who I normally saw on the 38 Both Bland and Gooden testified that they had called the State police. On other occasions during the summer , both Bland and Maddix had come to Riffle's home to ask that he sign a UMW card. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket line." Harry Myers was present at the time, discussed the matter with, Karickoff, and promised that the men involved would report in answer to the charge.40 William Messenger was the payroll clerk for Marra Brothers and went to the mine office about 1 day a week to perform the duties in connection with that job. One day about the middle of August, when he was on his way to work and only a short distance from the Marra property, he was stopped by a crowd of 30 to 50 men spread across the road . Lee Shoulders stepped forward and asked where Messenger was I -mind. When the latter told him that he was going to work on the Marra payroll, Shoulders told him that he could proceed only if he supplied him with the names and addresses of all Marra employees then on the payroll. Messenger was permitted to go through the line when he promised to provide this information to Shoulders. In fact, he did not abide by this commitment and at about 6 p.m . that evening he recrossed the picket line in the company of the State police and two of the Marra brothers . About 2 weeks later when Messenger was again on his way to the Marra office he found the road to the mine blocked by a car at the Brownton intersection. Shoulders was present on his occasion , as well, and again questioned Messenger as to his destination. When the latter disclosed' that he was on his way to the Marra office, Shoulders declared that he would not be permitted to get there . At this point another picket came up to ask Shoulders if he needed any help. Messenger then announced "I won't argue" and returned to his home in Clarksburg 41 The foregoing constitutes the evidence which the Parties offered in connection with Case No. 6-CB-468. At the time of the hearing the picketing at Brownton, was still in progress. 2. M & T Coal Company The M & T mine is located about 2 miles from the Marra Brothers property involved in the incidents related above. As noted earlier, Louis Marra, sole owner of M & T, is also a partner in Marra Brothers . Thus, it was in both capacities that he, along with his brothers , Sammie and Robert met with Myers and Zivkovich on April 25 in response to the UMW demand for recognition and a contract. At that time, when Louis, as well as his brothers, refused to sign the standard UMW agreement for the soft coal industry , the union representatives told them that that was the last time they would talk with them. M & T had only a few employees 42 prior to the work stoppage which started on April 22. About four men, Howard C. Williams, Dorsey Bennett, Walter Parks, and Porter Booth, worked at the mine after the strike began . These employees remained at M & T until May 22 , when that mine was shut down . They were then hired by Marra Brothers where they continued to work until M & T resumed opera- tions in mid-December 1958. Some of the picketing here involved took place near the M & T property. Most of it, however, was conducted some distance away on the country roads which the employees used en route to and from the mine . Howard C. Williams testified that late in April when he reported for work at the outset of the strike a crowd of from ,200 to 250 men were at the entrance to the M & T premises and that a car barred the road to the mine. When be was compelled to stop by this roadblock , pickets asked him to sign a UMW card. After Williams declined to do so, he was introduced to Harry Myers who endeavored to persuade Williams that, as an elderly man, it would be to his advantage to join the UMW and thus qualify for a pension from the welfare fund. When Williams persisted in his refusal to sign up with the strikers he was permitted to proceed through the crowd of pickets and report for work. One afternoon shortly thereafter, however, as Williams and Parks were proceeding homeward they were stopped by a group of pickets on the Stewart Run road , approximately 3 miles from the M & T mine. Included in the group were Russell Mayle and Steve Maddix. Parks and Williams were asked to sign UMW cards. When they declined, Mayle stated "This work has got to be stopped, and if it takes violence we will have violence ." 43 On another occasion in May, Parks was stopped at the entrance to the M & T mine by a large number of pickets. According to Parks, Steve Maddix was among the group and stated to Parks "You are not going to work. . . . This work has got to be stopped or else." After some 4° The foregoing findings are based on the credited, undenied testimony of Karickoff. The foregoing findings are based on the credible , undenied testimony of William Messenger 4 The record does not disclose the exact number 43 The above findings are based on the credited , undenied testimony of Williams and Parks. UNITED MINE WORKERS OF AMERICA, ETC. 165 -further discussion, Maddix summoned Harry Myers, who was present, to talk with Parks. The latter testified that Myers told him "You have got to sign up Union or ,quit," and that "if it takes violence to stop this we will have violence." Both Myers and Zivkovich testified with respect to this incident . Myers denied that he made any reference to violence, or that he stated the work had to be stopped. Zivkovich testified to the same effect. In general , Parks impressed me as a credible witness. On the other hand, as to this incident, the denials of Myers and Zivkovich find sup- port in the admission of Parks that at the conclusion of his discussion with Myers on the morning in question , Myers directed the pickets to stand aside and permit Parks to drive forward to the M & T property. In this instance, therefore, I credit the denial of Myers that he made the statement attributed to him by Parks. The testimony of the latter as to the remarks which Maddix made at the time , however, were undenied and are credited. Another incident occurred on the afternoon of May 22. At the end of their shift Dorsey Bennett and Porter Booth left the M & T mine in a car; they were followed by Williams and Parks in a pickup truck. About a mile from the mine and at the crest of a hill on the Stewart Run road they were met by a throng of from 150 (to 200 pickets. A car was parked in the middle of the road. Present among the large crowd at the scene were William Bland, Steve Maddix, Aussie Kimber, Russell Mayle, and several of the striking M & T employees." Bennett managed to make his way around the roadblock and proceed down the hill. As he did so, he was pursued for some distance by a car with several occupants . As this car passed them, rocks were hurled at Bennett and Booth. One of the rocks struck Booth in the left eye resulting in his serious injury and a five-day hospitalization . In the meantime, Williams and Parks were attempting to make their way through the pickets. As they proceeded, Bland jumped on the running board of Williams ' truck, caught Williams by the arm and shouted "Stop there you - - " Williams, however, increased his speed and moved forward so rapidly that Bland was forced to drop off the running board. As Williams and Parks drove away their vehicle was pelted with rocks and stones 45 3. Blue Ridge Coal Corporation In April 1958, this company was operating a tipple and two mines in Taylor County. The mines, known as Blue Ridge No. 1 and No. 2, are only a short distance off a State highway designated as Route 13. They are are approximately 6 miles apart and the tipple is at a point about midway between them. A narrow road extending from the highway to No. 2 mine is known as Gabe's Fork. The latter intersects Route 13 at a point only a short distance from another road known as Buck Run. The C & P Coal Company is located on the latter. In April, No. 1 had about 13 employees and No. 2 had approximately 25. No. 1 was shut down on April 23, 1958, and was still closed at the time of the hearing. No. 2 was shut down from April 22 to November 10, 1958. It has been in operation since the latter date. In April 1958 the union organizers solicited applications for the UMW from the Blue Ridge employees. On about April 16 Zivkovich, Gladski, and Mayle called on Earl Thorn, secretary-treasurer of the Company, to request that the employer discuss a contract with the UMW. The latter promised to take the matter up with the board of directors. Early on the morning of April 22 about 150 pickets appeared at the Gabe's Fork junction with Route 13. Zivkovich conceded that the Blue Ridge employees had gone on strike that day but he denied that the UMW had initiated the strike 46 The evening before, on April 21, as Ralph Greathouse and Thaner Smith, two Blue Ridge employees, left work, Russell Mayle and several others met them on the road near the exit. According to the undenied testimony of Greathouse and Smith, Mayle told them ". . . either join the Union or you are not going to work." The following day Greathouse and Smith returned to No. 2. At the time there were from 50 to 75 pickets across the road. When they passed through the crowd on the way to the mine, Mayle, who was present, shouted "We will kill you - - if you come back in the morning." 47 Great- 44 Including Frank Crmkshank who had been designated to serve as an employees representative on the bargaining committee. 48 The foregoing findings are based on the credible testimony of Bennett, Booth, Williams, and Parks Bland, Mayles, and Cruikshank denied that they were present on this occa- sion. Their denials are not credited. 46 According to Zivkovich, when he was at Buck Run that morning the Blue Ridge em- ployees reported to him that they had quit work to better their conditions 47 Mayle denied making these remarks ; his denial is not credited 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD house, who was a carpenter, continued to work at the mine for several days after it was closed. He testified that when he reported to the mine about a week after the foregoing incident the pickets at the entrances, many of whom were striking employees of Blue Ridge, cursed him and told him they would throw dynamite at him. On April 23, Russell Mayle and about 25 pickets appeared at No. 1 mine. Ac- cording to William G. Rorrer, president of Blue Ridge, Mayle told him he was there to shut down the mine. Rorrer testified "I asked Mr. Mayle who he repre- sented and he said the United Mine Workers of America, and I asked him who was in authority to discuss the issue and he said he was, and so we agreed to a meeting date in my office on the 25th. . .." 48 That same morning, George W. Coffman, an employee at No. 1, went through the picket line at the entrance to that mine. Later that morning when he came back near the entrance, he was questioned by Mayle as to whether he intended to work that day. After Coffman answered in the affirmative, Mayle stated "You had better not go up on that hill we will come up there and beat you off." At the time there were about 25 to 30 pickets in the area.49 On April 25, the company and union officials held the collective-bargaining con- ference which Mayle had arranged. Blue Ridge was represented by Rorrer and Thorn and the Union by Cappellini and Zivkovich. Rorrer refused to sign the standard UMW contract and the meeting broke up shortly thereafter. Thorn testi- fied, and in this respect his testimony was undenied, that at the conclusion of their conference, Zivkovich stated that "no mine that was down, including [Blue Ridge], would go back to work until the contract was signed." On May 26, Blue Ridge notified its employees to report for work on May 28. Preparatory to resuming operations, on May 27, John M. Breedlove, an independent trucking contractor, was secured to move several loads of coal from the stoage bins of No. 2 mine to the tipple. Only the tipple employees came to work that day. Breedlove made several trips from the mine to the tipple before trouble occurred. On his first trip from the tipple with a loaded truck, about 50 pickets at the Gabe's Fork intersection stopped him and told him not to load any more coal. During the course of the morning the number of pickets at the crossing increased to over 100. On his third trip Breedlove was accompanied by Hugh R. Mitchell, a Blue Ridge employee.50 This time, as Breedlove approached the Gabe's Fork crossing the pickets there started throwing stones at the truck . The engine was damaged, glass on the doors was broken and the windshield was cracked . Mitchell was cut by flying glass. As the truck passed through the pickets, some of the crowd uttered threats to kill the occupants if they did not quit hauling coal. In- 48 Mayle denied that he ever threatened to shut down the Blue Ridge mines, but he did not deny having the conversation about which Rorrer testified I find that Rorrer's ver- sion of the meeting is a credible and substantially accurate account. 49 This finding is based on the credible , undenied testimony of Coffman 60 The Respondents contend that Mitchell was a supervisor . This argument is based upon Mitchell's testimony in which, at one point, he described himself as supervisor of the tipple and further stated that he had recommended the hire of an employee. Upon further examination , however, it developed that his one and only recommendation in this latter respect was that his younger brother , Elmer Mitchell , was available for work The facts with respect to Mitchell's duties are as follows : Mitchell, along with one other employee, is responsible for operating the tipple . In so doing, he picks slate and dirt from the coal, loads it into the railroad cars, and maintains the tipple machinery . At the time of the hearing he was paid 15 cents an hour more than his younger brother, Elmer Mitchell, the other employee at the tipple. Prior to the time his brother was hired, Mitchell was assisted at the tipple by Sherman Mayle , an older employee Mitchell re- ceived only 5 cents an hour more than Mayle Thorn testified that Mitchell received the extra pay because he also worked as a welder when not engaged in his job at the tipple It was undenied that Mitchell neither hired , fired, or bad any of the other indicia of supervisory authority . For this reason, it is my conclusion , and I find, that Mitchell was not a supervisor within the meaning of the Act. N L.R.B. v. North Carolina Granite Corporation, 201 F. 2d 469 , 471 (CA. 4 ) ; N.L R.B. v. R H. Osbrink, et al. d/b/a R. H. Osbrink Manufacturing Company, 218 F. 2d 341, 344 (C A. 9) ; N.L R.B. v. Beaver Meadow Creamery, Inc., 215 F. 2d 247, 251 ( C.A. 3) ; Stokely Foods, Inc . v. N L.R.B., 193 F. 2d 736, 739 (C.A. 5 ) ; N L R.B v. A E Nettleton Co., et at., 241 F 2d 130, 132 (C.A. 2) ; Southern Bleachery and Print Works, Inc., 115 NLRB 787, 791-792. UNITED MINE WORKERS OF AMERICA, ETC. 167 eluded in the throng of pickets were Russell Mayle and William Bland, as well as striking employees of Blue Ridge.51 Earl Thorn credibly testified that on this particular morning he was at the tipple and that after Breedlove had dumped his first load of coal, Russell Mayle arrived, accompanied by two others. According to Thorn, Mayle stood on the road, surveyed the situation at the tipple and then said to his companions "Those fellows are going to go to work. You guys know what to do." Thorn tesitfied that Mayle then drove off and returned a few minutes later. Soon thereafter cars began arriving in the area. As they did so Mayle stopped each one, and spoke to the driver. Some of the cars then proceeded on down the road toward the No 2 mine and others remained near the tipple. In the meantime, as the crowd of people on the highway continued to increase, some of them yelled out to the three Blue Ridge employees present 52 and to Breedlove various threats including "We are not going to get you fellows today or tomorrow.. . . We will get you today. Just wait until our gang gets here." 53 Blue Ridge did not resume operations on May 28 as planned. Thorn and Rorrer testified that there were from 100 to 200 pickets on the Gabe's Fork road that morning and that Mayle, Zivkovich, and Myers were among them.54 None of the Blue Ridge employees came to work that day, and the Company did not attempt to operate again until the following August. In the latter part of July one of the striking employees brought word to Rorrer that Mayle wanted to see him. Rorrer arranged to meet him and when he did so found Myers with Mayle. According to Rorrer "Russell started off the con- versation by saying he guessed I was mad at him because he stopped our mine from operating." Rorrer testified that he assured Mayle that that was not the case and then, after some preliminaries, Myers stated that he would like to talk with Blue Ridge about a contract. Thereafter, on about July 26, Rorrer and Thorn met with Myers, Zivkovich, and Gladski. Myers insisted that the Company had to sign the standard UMW contract. Rorrer suggested that he would be willing to negotiate a contract but that the industry agreement was unsatisfactory. Myers then put a copy of the standard contract on the table and declared "You know well this is the only contract that we can sign." That concluded the meeting. There were no further bargaining conferences.55 Early in August, Blue Ridge notified its employees that it would resume oper- ations at No. 2 mine on August 6. On August 5 the pickets returned to Gabe's Fork. On the morning of August 6 there were approximately 150 pickets on the road leading to the mine, and the Company abandoned its plans to go back into production. Sergeant Walter L. Pike, who was in charge of the detachment of the State police for the district which included Taylor County, was present at Gabe's Fork on that day. He met Harry Myers, whom he had known for a long time, with the first group of pickets. Pike testified "he [Myers] stated to me that he was going to maintain his picket line until about four o'clock in the afternoon. He stated that this mine had closed down before and after the pickets had left had attempted to run coal in the afternoon , and for that reason he was going to main- tain his picket line there all day." According to Pike, that same morning he also saw Zivkovich and Gladski with other groups of pickets in the immediate area Blue Ridge resumed operations at its No. 2 mine on November 10. About eight employees returned to work that day. The pickets reappeared shortly thereafter. m Mitchell had known both Mayle and Bland for a long time. His identification of these two individuals was positive and credible. He further testified that Harry Myers was in the crowd. He conceded, however, that he did not know Myers personally whereas he had known Mayle and Bland for a long while . Thorn also testified that he saw both Mayle and Myers in the area that day. As was the case with Mitchell, Thorn had been acquainted with Mayle for several years but it does not appear that up to that time Thorn bad ever met Myers. Myers denied being present at the scene and testified that on that particular day he was in another county . His testimony in this regard is credited u These were Mitchell, Sherman Mayle, and Eugene Thorn. The foregoing quotations are from, and the findings are based upon, the credited testimony of Thorn . Mayle denied that he was present on this occasion. His denial is not credited s4 The testimony of Thorn and Rorrer as to the presence of the last three named in- dividuals was undenied. to The quotation and the foregoing findings are from the credited, undenied testimony of Earl Thorn. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of the hearing the picketing was still in progress. Mayle and Myers were frequently seen with the pickets during the ensuing weeks. Thorn testified that as the employees reported for work the pickets often held rocks in their upraised hands and that one of those who often resorted to this gesture was Russell Mayle.56 One other incident appears in the record. This occurred on December 10 and involved Breedlove, the trucker who had hauled coal for Blue Ridge in May. Ac- cording to Breedlove, on that morning, when he was some 2 miles from the No. 2 mine, the road was blocked by a car in which Mayle was sitting. He testified that when he sought to get around this car two striking Blue Ridge employees along the highway threw stones at his truck. The testimony of Mayle and others who were present, however, tends to prove that Mayle had had motor trouble with his car, that it was stalled on the road at that particular moment and that if Breedlove had exercised a reasonable degree of caution there was sufficient room on the highway for him to have driven around Mayle's car instead of having crashed into it. Ernest McDaniel, one of the alleged stone throwers, as well as several other witnesses for the Respondents, testified that they saw no rocks thrown at the truck. As to this incident the testimony of the Respondents' witnesses is found to be the more credible.57 4. Sinsel Coal Co. Sinsel conducts strip mining operations at two locations, one, known as the Reppert job, located in Taylor County, the other, known as the Brownton job, in Barbour County. The latter is located only a short distance from the Marra Brothers mine. Sinsel also operates a tipple which is not far from Blue Ridge Mine No. 1. In May 1958, and prior to the dispute here involved, Sinsel had approx- imately 18 employees. In the latter part of April, Steve Maddix and Jess Wilfong came to the Sinsel tipple where they spoke to Chester Sinsel and requested an opportunity to speak to his men who were then at work. Sinsel gave his permission for them to do so and within a day or two thereafter Maddix and Wilfong returned to ask whether he would meet with certain officials of the UMW. Sinsel agreed and suggested that the meeting take place at the office of his attorney in Grafton, West Virginia. An hour was agreed upon and at the appointed time and place Sinsel met the union -delegation which consisted of Wilfong, Maddix, Murray, Zivkovich, and Cappellini. Sinsel's counsel was not in his office when the group arrived. While awaiting his return, the parties discussed the prospects of reaching an accord. When Sinsel stated that he did not intend to sign any agreement, the meeting broke up, even before the attorney returned to his office. There were no further conferences between the parties. Picketing on the Sinsel properties began about the second week in May.58 Steve Yacenech, bulldozer operator on the Reppert job, testified that on May 9 he sought to report for work and found the road to the strip operation blocked with from 50 to 60 pickets who refused to let him through. As a result, he did not go to work that day. On May 12, Yacenech and Boyd McDaniel, the latter a shovel operator, turned off the highway to proceed along the narrow road that led to the Reppert -strip. They were stopped by a group of from 50 to 60 pickets. One of the pickets announced, "You are not going to work here." Then, William Bland, who was present in the group, engaged the two nonstrikers in a conversation. He told them that more than half of Sinsel's men had joined the union and that no one would be permitted to work until Sinsel signed a contract with the UMW. When McDaniel expressed his doubts as to the number of Sinsel employees who had signed up, Bland had several of them come forward so that McDaniel could see them. Bland then declared "If we have to, we can spill some blood to keep you from going in se The foregoing findings are based on the credited testimony of Earl Thorn. Mayle denied that he ever engaged in the type of threatening gesture attributed to him by "Thorn. T-Iis denial is not credited. 61 The General Counsel originally offered Breedlove's testimony as to this incident. Later, after the Respondents had put on some testimony in rebuttal, counsel for the International moved to strike all testimony as to the occurrence This motion was granted. Subsequently, however, Respondents offered further testimony in rebuttal and -counsel for District 31 and Local 2311 has argued the matter fully in his brief. There- fore, despite the ruling on the motion to strike and because the facts as to the incident were fully litigated, I have set forth the foregoing findings. 51Chester Sinsel testified that unfavorable weather conditions prevented any strip .wining from April 25 to May 11. UNITED MINE WORKERS OF AMERICA, ETC. 169 there." McDaniel and Yacenech did not attempt to go any further, but returned! to their homes instead . Yacenech never tried to go through the line again.59 That same day the Brownton job was also picketed. Sinsel testified, credibly and without contradiction, that when he arrived there 40 to 50 pickets were standing at the intersection on the road which led off to that mine. Included in the group of pickets were Steve Maddix, Russell Mayle , and Jess Wilfong. On May 13, Joseph Richman, a bulldozer operator , and Gerald Stemple, a fore- man, attempted to report for work at the Brownton job. An automobile was parked across the road leading to the strip and about 60 pickets were in the area, including: Jess Wilfong and Lee Shoulders. When the pickets asked Richman and Stemple what they were going to do, the latter told them that they were going on the job to "backfill." 60 The pickets then told them "You are not going any place." That same day Sinsel met Myers and Zivkovich in Brownton . He protested to them that the pickets had prevented Richman and Stemple from getting to work that morning and. requested that Myers give him written permission so that these two employees- could backfill . Myers refused .81 The following morning Richman and Stemple returned to the Brownton site. Again their ingress was blocked by a car across the road and a large group of pickets. When Richman told them that Smsel had sent them there to backfill, the pickets told them "You tell Mr. Sinsel we said that you wasnt going to do anything." Since the road was effectually closed and the pickets refused to yield, Richman and Stemple left and did not return. Although Sinsel made no effort to resume operations after May 12, picketing in the vicinity of his mines continued for about 3 weeks. His last recorded encounter with any of the pickets was late in May when he stopped at one of the picket lines and asked Steve Maddix whether he could send a mechanic in to repair a shovel. Maddix told him "No use trying to do anything, Sinsel until you sign up." ... we, are out here to organize this place and we are going to see that it is done." 5. Thompson Coal and Construction As noted earlier, Thompson is engaged in strip mining at two locations, one in Taylor County, near Rosemont, West Virginia , and the other in adjoining Harrison County. Thompson likewise operates a tipple which is about one-half mile from the strip mine near Rosemont. All of Thompson's coal production from the two strips is carried to the tipple by truckers who operate as independent contractors. In June 1958, the period in question, there were four employees at the tipple. These were supervised directly by James W Thompson, the proprietor. Late in May 1958, Harry Myers stopped at the Thompson tipple and spoke to, the owner. Myers testified that in a brief encounter with Thompson he told the latter that the UMW had a majority of the employees signed up and that he would like to bargain with him. According to Myers, his request met with a negative, and very profane, response. One of the principal incidents in this phase of the case occurred on June 9. When Mr. Thompson arrived at his tipple that morning he discovered that the tipple generator had been shot full of holes. According to Thompson, at that point, anticipating further trouble later in the day, he armed himself with weapons of his own and proceeded to get the tipple operating with an auxiliary generator . Between 8 and 9 a.m. that morning a large number of pickets, variously estimated at from 50 62 to several hundred 63 arrived at the tipple. Among those in the crowd of pickets were Myers, Zivkovich, Gladski, and Mayle. It was undisputed that for ce The foregoing findings are based on the credited testimony of McDaniel and Yacenech. The former had known Bland for several years His identification was positive and throughout his testimony he impressed me as a frank and honest witness. Bland denied ever making the remark attributed to him and further denied that he was present at this site at the time. His denial is not credited Lake Jackson and Andy Saltis, two Sinsel employees on the picket line, denied hearing any such remark. Both of these indi- viduals were evasive witnesses whose appearance and demeanor on the stand were most unpersuasive. 0° "Backfilling" is the postmining operation connected with replacing the earth after the coal has been removed from the strip. m Myers conceded that he refused to give Sinsel any such written permission . Accord- ing to Myers, he declared at the time, "Sinsel, I am not giving you anything. I can't run your job." Oa According to Zivkovich. 61 According to Thompson. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some while after the pickets arrived and remained on the highway overlooking the tipple, Thompson stood at a vantage point on the tipple, in full view of all, with a loaded rifle and announced that if the pickets wanted to keep living they would have to stay off his property. During this period there was much shouting to the Thompson employees at the tipple. According to Eli Bennett, one of the latter, the pickets kept calling out "You scabs, shut this tipple down." Thompson testified that Zivkovich called out to him "We have got guns up here, too, and some- body will shoot you off the top of that tipple." 64 After several verbal exchanges between Thompson and the union representatives, the latter finally persuaded him to put down his rifle and discuss recognition. Myers, Zivkovich, and Gladski participated in the brief discussion which followed. According to Myers, he told Thompson that the UMW had a majority of his employees and desired recognition. When Thompson suggested a Labor Board election, Myers countered with the offer of a card check by a judge or justice of the peace. Thompson testified that when he suggested a Labor Board election Myers declared "To with the Federal Government. We don't need them. We are bigger than they are, and we will do as we please. Now if you want to load coal here it will cost you 40 cents a ton or you are not going to run this tipple . . We don't give a what you pay your employees, as long as you pay us 40 cents a ton." 65 According to Myers, although Thompson finally agreed to meet him at the tipple the next day, the latter never kept the appointment. Thompson loaded no railroad cars with coal after the arrival of the pickets. Clarence Hebb, one of the independent truckers, engaged in hauling coal from the Rosemont strip to the tipple, testified that he dumped one load of coal at the tipple after the pickets arrived. The pickets had shouted at him when he came to the tipple and one had said "you , don't come back here any more." 66 Another witness present that morning was John Kovar, a driver for the H & M Trucking Company. Kovar was also engaged in hauling coal from the Thompson strip to the tipple. At about the time that Hebb had his encounter with the pickets, Kovar was approximately a half-mile from the tipple, his truck fully loaded. He was stopped at that point by a group of people he estimated to number from 150 to 200, and most of whom were in the center of the road. He testified, "I had to stop because if I didn't stop I would hit them." When he did so, a man who introduced himself as "Mayle" came forward with a UMW card and stated to Kovar "You sign that card there, and there will be no trouble." Kovar signed the card and Mayle then ordered him to dump his load of coal at the roadside. Another man in the group then told Kovar that he would accompany him on the drive back to the tipple in order that "none of the rest of them will stop you." Kovar's escort remained with him until he reached the tipple. Kovar did not stop there but proceeded on to Clarksburg and did not return to Thompson's Rosemont operation.67 Many of the union witnesses endeavored to explain their presence at the Thompson site on June 9 as pure happenstance. Russell Mayle testified that he was on his way to another town when he "seen a congregation" at the Thompson tipple. Another, Franklin Cavalier, told of driving by and having stopped when he discovered that Jess Wilfong was giving out coffee and sandwiches there. Zivkovich testified that on his way to Thompson's that morning he had picked up one pensioner who rode along with him. On the other hand, Zivkovich conceded that some of those at Brownton or Buck Run where he and Myers had been earlier that morning had driven with him. In a pretrial affidavit that was received during his cross-examina- tion, Zivkovich had averred that on June 9, "Harry Myers asked me to take some pickets to . . . the Thompson Coal Co. tipple. One of the employees there, Marion Pritt, had sent word to us of some shooting and the employees wanted some help. I took about 19 or 20 cars of pickets, about 50 or 60 pickets." [Emphasis supplied.] The aforementioned Pritt testified that early on the morning of June 9 he had met Earl Wilfong, whom he described as an active union organizer, and told him that Thompson was very incensed over the damage to his tipple machinery, and that "maybe we had better have a little help." 68 According to Pritt, Wilfong drove off in the direction of Brownton and about 45 minutes later people began appearing at 81 This statement was denied by Zivkovich . His denial is not credited. 65 Myers and Zivkovich denied that the former made any derogatory contrasts between the UMW and the United States Government 66 The quotation is from the credited, undenled testimony of Richard L. Bryan who was in the truck with Hebb. °7 The above findings are based on the credited , undenied testimony of Hebb and Kovar 68 The quotation is from Pritt's testimony. UNITED MINE WORKERS OF AMERICA, ETC. 171 the tipple. Mayle, who at one point endeavored to ascribe his presence at the tipple to sheer coincidence, later conceded that he had been at Gabe's Fork that morning and while there had heard from Earl Wilfong that there had been some shooting at Thompson's. He also admitted that a few other cars might have accompanied him to the latter sites. 69 Mayle further conceded that he "may have said" to Thompson that "if any of our men wanted to shoot him he would be a perfect target." When asked what he meant by "our men," Mayle explained "some of the people along the road there . . . some of them were people that were on these assembly lines. . Because of this evasiveness and hedging on the part of the above witnesses for the Respondents and the fact that the witnesses for the General Counsel were, in the main, frank and forthright , it is my conclusion and I find, on the above evidence, that on the morning of June 9, the representatives of District 31 and the International mobilized a large mass of pickets whose presence and conduct at the Thompson tipple that day were threatening and coercive , not only to the Thompson employees but also to the employees of the independent truckers who were engaged in hauling coal from the Rosemont strip to the tipple. On June 10, Thompson did not operate . Two employees on the Rosemont strip, John R. Moninger, an oiler, and Lee Donahue, a bulldozer operator, returned to the jobsite that day for tools they had left behind . On the road leading to the strip, they were stopped by 15 to 20 pickets . Moninger had already signed a UMW card, but Donahue had not. The pickets endeavored to persuade Donahue to sign one also, but he refused . The pickets then gave the two employees 30 minutes to get their tools. On their way back through the picket line, Donahue was again asked to sign a UMW card. When he declined once more, several of the pickets declared that "They ought to beat the out of him... " Moninger did not know the names of any of the pickets other than one whom he knew as "Wilfong." On June 13 Thompson attempted to resume operations . Again a large crowd of pickets arrived . Sergeant Pike, who was present that day, testified that shortly after 7 a.m. about 75 of the people he had seen earlier that morning at Buck Run started arriving at the Thompson tipple. When trucks from the strip mines drove up to unload their coal, crowds of men and women gathered on the ramp to the tipple and refused to move. Throughout this period the pickets called out threats of various kinds to the Thompson employees on the tipple . Thus, according to Renick Freeman, he heard the pickets say "Let's go down over the hill and kill the scab " Eli Bennett, another Thompson employee, testified that he heard a picket shout "We ought to take a gun and go down and kill them at the tipple ." Gladski, Mayle, and Bland were present during this period. The truckdrivers finally de- spaired of being able to get on the ramp and drove away. Soon thereafter Thompson left the area also. According to Sergeant Pike, at about this time Harry Myers arrived. Pike had known Myers for a long while. He testified That [was] the first time I had seen Harry for several years, and I shook hands with him , and he told me at that time these pickets were his men and that he would be responsible for them, and that if the occasion arise they would have a warrant for any of his men to notify him, and he would bring them in; it wouldn't be necessary for me to come out and get them. Q. Did he say anything else? A. After Thompson had left his tipple , Harry ordered the pickets to return to Buck Run, and they did, they left there and returned to Buck Run.70 Before the pickets left, Gladski and Bland had met with Thompson. Freeman and Bennett, the two employees at the tipple, were also present. Freeman testified, "They asked Jim [Thompson] how come he was trying to operate the tipple . and they would like to have a royalty and if he didn't pay the royalty on the coal they was going to shut the tipple down , and they asked us [Freeman and Bennett] if we would join the Union, and I told them [no] . . Jim [Thompson] asked them if they would take the Coal Company and run it and give him 25¢ a ton and they said they weren't in the coal business.... All they wanted was their money. . . ." 71 89 In his pretrial affidavit, which was received in evidence Mayle stated , "The morning of June 9, 1958, I was on a picket line at Blue Ridge Coal Co. when Earl Wilfong told me there might be shooting at the Thompson Coal Co. because he had seen a man with a gun. I took about 10 or 12 carloads of pickets and went to the Thompson tipple. .11 79 Sergeant Pike's testimony as to this conversation was undenied. Pike was a thoroughly credible witness and his account of the events on this occasion is accepted as true. n Thompson testified that Bland also stated that the 11MW had a "wrecking crew in their employ all of the time, and they would blow this whole valley off the map, if they had to. . . . 11 Bland denied that he made this remark to Thompson. Gladski 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two of the truckdrivers testified as to the circumstances which caused them to- abandon their efforts to unload any coal after the pickets arrived . Clarence Hebb, himself an independent contractor, was driving a truck that day and had two of his drivers on other trucks there that morning. He testified that while he was near the ramp awaiting an opportunity to unload, Russell Mayle asked him if he would promise not to haul any more coal for Thompson if the pickets permitted him to dump the load then on his truck . Hebb agreed ; Mayle then spoke to the pickets and reported back that they would not let Hebb dump any coal at the tipple. Hebb stated that by that time the ramp was so crowded with people it was impossible for him to drive up to it and he made no attempt to do S0.72 Lawrence Miller , a driver for the H & M Trucking Company, testified that he was met by pickets as he ap- proached the tipple with a load of coal from the Rosemont strip. The road was- blocked by an automobile that was parked sideways ; about 150 people were standing around it. A picket asked Miller if he was a union driver. When he responded in the negative some of the pickets threatened to overturn the truck . Miller was theno asked to sign a UMW card and was told by one of the pickets "if you don't then somebody just may kick the out of you." Another picket then appeared with a club, whereupon Miller signed . According to Miller, at that moment , "I would have signed anything." After he had signed the card, the automobile that blocked the road was removed . One of the pickets stepped into the truck and accompanied Miller a short distance further. At that stage the truck was stopped by another crowd of pickets who told Miller that he would have to dump his load of coal immediately. Miller complied with this order, unloaded his coal at the roadside and left the area. He did not return. Pickets were at the tipple every day for several weeks in June , but picketing was. discontinued when Thompson did not resume operations . At the time of the hear- ing he still had not gone back into production at the Rosemont tipple. C. The agency issue 1. District 31 as an agent of the International The International seeks to avoid responsibility for much of the conduct here involved on the ground that the organizing campaign was a function solely of District 31 and that the parent body can not be held liable for the acts of District 31 or the organizers working for the latter. District 31 holds a charter from the International but has no constitution or bylaws of its own . It operates under the constitution and bylaws of the International. It has three officers, President Cecil J. Urbaniak, Vice President Pnakovich, and Secretary-Treasurer L. Clyde Riley. These officers are appointed by the executive officers of the International 73 for 1-year terms . They may be removed from office by the same officials of the International at any time . The salary of the president of District 31 is paid directly by the International, but District 31 pays the salary of its vice president and secretary-treasurer. These same three officers of District 31 may appoint "District representatives." During the period in question there were four of the latter and Harry Myers was one of them. Mr. Myers testified that when he was put in charge of the organizational campaign that figures in these cases, four representatives of the International were assigned to work with him, Cappellini, Gladski, Murray, and Zivkovich. Mr. Riley testified that International representatives , such as the last four named, receive their appoint- ments from the executive officers of the United Mine Workers. He further testified that they are paid their salaries by the International and not by District 31. Through- out the membership drive the organizers solicited the employees involved herein to sign application cards in the "United Mine Workers of America " and authorize that union and its "representatives to act . . . as a collective bargaining agency in all matters pertaining to pay, rates, wages , hours of employment and other conditions of employment." 74 In their subsequent bargaining conferences Myers and the representatives of the International uniformly requested that the employers here involved sign the standard UMW contract which the International had negotiated testified that it was Thompson who had mentioned a wrecking crew. Under the circum- stances, it is my conclusion that the more accurate account of this meeting is that which Freeman gave and which appears in the quotation above 72 Sergeant Pike took the position that the ramp was off the highway and on Thompson's private property so that he had no authority to order that it be cleared of pickets. 73 These are Messrs John L Lewis, Thomas Kennedy, and John Owens. 74 The quotation is from the language on the application cards. UNITED MINE WORKERS OF AMERICA, ETC. 173 for the bituminous coal industry. The very substantial support which the Interna- tional contributed by its advance of over $190,000 for the payment of weekly benefits to the strikers involved in the organizational drive has already been discussed. As found earlier herein, Mr. Riley supervised the disbursement of this fund in the form of $30 checks to the individual strikers who had assembled at the different picket lines which Myers and the International representatives had encouraged , established, and maintained. In the light of the foregoing, it is my conclusion and I find that throughout the period in question, District 31 was acting as an agent of the International in further- ing the organizational objectives of the International, and that the District and the International were engaged in a joint venture for which both were equally respon- sible. United Mine Workers of America, et at., District 23, et a!. (West Kentucky Coal Company, et al.), 92 NLRB 916, 950-951, enfd., 195 F. 2d 961 (C.A. 6), cert. denied 344 U.S. 920. It is my further conclusion that, in connection with the organizational campaign out of which the present proceeding arose, the officers and agents of District 31 were agents of the International. Mile Branch Coal Co. v. United Mine Workers of America, et al., 266 F. 2d 919 (C.A.D.C.). One other related matter should be considered here. In its brief, the International ,concedes that there was proper service of the charges in these cases in November 1958. It contends, however, that the limitation in Section 10(b) of the Act bars any liability for alleged violations prior to May 26, 1958, in Case No. 6-CB-482, and prior to May 21 in the other four cases. There is no merit to this contention. On June 13, 1958, L. Clyde Riley, secretary-treasurer of District 31 and an agent of -the International 75 accepted service of charges in Case No. 6-CB-469 against "United Mine Workers of America, Harry Myers and its and his agents, members, employees, pickets and associates ." In addition, during this same period in June and in September 1958, District 31 was served with charges in all of the cases in- volved in this proceeding. I have already found that for all purposes material to the subject matter of the instant complaint District 31 was the agent , and, in effect, an alter ego, of the International. Consequently, it is my further conclusion, that service on Riley and on District 31, both agents of the International , was adequate service of the International for those periods prior to May 21 and May 26, 1958, which are in question. United Mine Workers of America v. Meadow Creek Coal Co., Inc., 263 F. 2d 52, 59 (C.A. 6), cert. denied 359 U.S. 1013; Claycraft Co. v. United Mine Workers of America, 204 F. 2d 600, 602-603 (C.A. 6). 2. Agents of District 31 and the International The Respondents concede that Myers was an agent of District 31 and that •Cappellini, Gladski, Murray, and Zivkovich were agents of the International. I further find, on the above evidence, that during the period here in question these -five named were agents of both District 31 and the International. The General Counsel alleged, and the Respondent denied, that Russell Mayle, William Bland , John Maddix, Steve Maddix, William Maddix, Jess Wilfong, Lee Shoulders, and Aussie Kimber were also agents of the Respondents . The evidence as to this issue will now be considered. Neither Mayle nor Bland was an employee of any employer involved in the organizational campaign. Mayle had been a member of the UMW for many years and had held several offices in Local 2311. At the time of the hearing he was both financial-secretary and treasurer of that union and received a small salary in connec- tion with the former post 78 He was also a laid-off employee of the Simpson Creek -Colliery, mentioned earlier, and had been unemployed since October 1957. Mayle conceded that he had played some part in the organizational effort among the .employees of the Charging Parties, and that he had secured signed application cards from a few of those employees . He also conceded that he had often visited the 751n the Mile Branch Coal case the court stated (supra) : The evidence showed'that the President and Secretary-Treasurer of District No. 6 are appointed to their posts by the President of the International, and that their salaries are paid by the International. The only appointments which the Inter- national's constitution authorized its President to make fall into two categories : (1) specified International posts, and (2) "such organizers, field and office workers as may . . . be necessary to conduct the affairs of the International Union." In the absence of countervailing evidence, it would appear that District officers necessarily fall within the second category as agents of the International to "conduct [its] affairs... . ' He testified that as financial-secretary he received a salary of $6.93 a week. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket lines, but testified that these were only for brief intervals . According to Mayle, in addition to his duties with Local 2311 , he had various responsibilities as a volunteer assistant in the distribution of surplus commodities. He explained that the combination of functions which he performed for the State Department of Public Assistance and for Local 2311 required that he contact many members for the execution of forms, applications , and various other papers and that, in so doing, he often visited the picket lines. The casual explanation which Mayle offered for his frequent presence in the midst of the pickets must be viewed in the light of the great number of witnesses who testified as to his activities throughout the months that the picketing was in progress . Even Mayle conceded that he often arrived at what he termed the "assembly lines" around 6 or 7 a.m . This, of course, was the hour at which the nonstrikers sought to report for work. It was undenied that Mayle, in the company of Gladski and Zivkovich, contacted the officials of Blue Ridge and sought to discuss a collective -bargaining contract before the work stoppages began . Later he sought out Rorrer, president of Blue Ridge, to arrange a meeting between the officials of Blue Ridge and Harry Myers. Mayle was present at the Blue Ridge mine when pickets stoned the truck of John Breedlove and super- vised the placement of the pickets on the road which led to the tipple . There was also testimony from Forest McDaniel, an employee of Blue Ridge, that after he signed an application card in the UMW at Mayle's solicitation, Mayle told him to report to the picket line at Buck Run the next morning. Although at the hearing Mayle sought to disassociate himself from the picketing, during his cross-examination it developed that earlier he had given an affidavit in which he had conceded : "In the last few months I have been acting as a leader in the picketing of some of the non- union mines in Taylor County. . William Bland was an unemployed miner who had last worked for the Clinchfield Coal Company, an employer not involved in this proceeding . He sought to explain his frequent presence among the pickets on the ground that as a long time member of the UMW he was interested in the welfare of the strikers and also that he had volunteered to assist in the distribution of food and clothing to the needy families of the strikers. He conceded that he occasionally signed up members for the UMW. He likewise conceded that, along with Gladski , he had met with Thompson when the UMW had sought to initiate collective-bargaining negotiations with that em- ployer. Sergeant Karickoff , who was a frequent visitor to the picket lines testified that Bland was usually in the company of Harry Myers at those sites . Karickoff further testified that one night when he was called to the scene of an altercation that occurred between the strikers and nonstrikers along the Grafton Coal road, Bland told him that he was in charge of the picketing. Both Mayle and Bland received $30 per week from L. Clyde Riley, the secretary- treasurer of District 31, as did the striking employees of the Charging Parties. Riley conceded, however, that neither Mayle nor Bland had voluntarily quit work or been discharged because of the instant labor dispute. From the record it appears that Mayle was the only member of Local 2311 who received these $30 a week payments. Bland was similarly favored among the members of his local. He admitted that of the 123 men who had been laid off by his former employee he was the only one that received $30 a week from the UMW. During the cross-examination of Harry Myers, a prehearing affidavit was received in which Myers had stated of the organizational campaign: "Eli Zivkovich, as national representative of the UMW was in charge, assisted by Bill Bland and Russell Mayle. These two, Bland and Mayle are miners, unemployed at present, and members of UMW ." On the basis of the foregoing evidence, it is my conclusion and I find, that, throughout the period here in question, Mayle and Bland were acting as agents of the Respondents Dis- trict 31 and the International. Steve Maddix, Jess Wilfong, John Maddix, Jr., Lee Shoulders, and Aussie Kimber, as the findings set forth above disclose , were frequently on the picket lines and, often in the presence of the representatives of District 31 and the International, participated in the incidents that have been the subject matter of this proceeding . All of these last-named individuals, with the exception of Kimber, received $30 per week benefit checks which have been discussed earlier. Steve Maddix and Jess Wilfong were the first to approach Chester Sinsel, the proprietor of the Sinsel Coal Company , to request that he bargain with the UMW. Subsequently, they participated, along with Zivkovich, Cappellini , and Murray, in the short-lived conference with Sinsel at which the union representatives sought to obtain Sinsel's agreement to a contract with the UMW. Late in May 1958, and after he had participated in much of the picketing , Maddix told Sinsel that the latter would be unable to resume any of his coal mining operations until he signed up with the UMW and then added "We are out here to organize this place UNITED MINE WORKERS OF AMERICA, ETC. 175 and we are going to see it is done." Neither one appeared at the hearing to refute the testimony as to their participation in the numerous incidents attributed to them. John Maddix, Jr., was likewise an employee committee member. As a member of the employee selected committee for the Marra Brothers' mine, Maddix had participated in the bargaining conferences held with those owners, along with Myers and Zivkovich. At the hearing, Maddix conceded that he acted as the spokesman for the committee. Shoulders was a striking employee of the Craigmoor Coal Company and Kimber was a pensioner of the UMW welfare fund who lived in the area. There was credible testimony as to their having participated in numerous incidents of picket line misconduct or coercion. Neither was called by the Respondents to testify and no explanation was offered for their failure to appear and deny the testimony offered as to them by the witnesses for the General Counsel. It is my conclusion and I find that, as alleged in the complaint, Steve Maddix, Jess Wilfong, John Maddix, Jr., Lee Shoulders, and Aussie Kimber were acting as agents of the Respondents District 31 and the International throughout the period in question and that the latter organizations are responsible for their conduct.77 In the summer of 1958 when most of the incidents that form the subject matter of this case occurred, Harry Myers had not been so reluctant as he was at the hearing to acknowledge the identity of the pickets and the responsibility of the UMW for their presence on the picket lines. Sergeant Karickoff testified, credibly and without contradiction, that on a visit to the Brownton intersection in May, Harry Myers had told him, as to the assemblage of pickets there that "they were organizing the small mines, that that was a start in Barbour County, and he named other mines where they were going, that it was a union activity and in the very start of it he told me, he said it is going to be peaceful picketing but if any of the boys do get out of line you let me know and I will bring them in . 78 On another occasion, at Thompson's tipple on June 13, Myers told Sergeant Pike that the pickets present "were his men and that he would be responsible for them, and that if the occasion arise they would have a warrant for any of his men to notify him and he would bring them in; it wouldn't be necessary for me to come out and get them." According to Pike, in that same conversation Myers told him "that the pickets would be there until he unionized the mines, if it took a long time. He indicated to me he had a million and a half tons of nonunion coal cut off and he was going to unionize them or keep it cut off ." 79 In the light of the foregoing and upon the entire record in this case it is my conclusion and I find that District 31 and the International were responsible for the conduct of the pickets which their agents massed at the picket lines and assembly points and for the action of those groups in barring the ingress and egress of the nonstrikers on the numerous oc- casions set out in the findings above. 3. The issues as to Local 2311 Earlier herein, I have found that Russell Mayle, treasurer and financial secre- tary of Local 2311, acted as an agent of District 31 and the International during the period in question . There was no evidence, however, that any other officer, or even a member, of Local 2311 had participated similarly in the organizational campaign on which District 31 and the International embarked . Nor was there any evidence that during the months covered by the complaint herein Local 2311 had authorized or ratified Mayle's conduct. Consequently, it is my conclusion that Mayle's activities that are an issue in this case cannot be attributed to Local 2311. For this reason, I find that the evidence adduced by the General Counsel fails to sustain the allegation of the complaint that the latter organization violated Section 8(b)(1)(A) of the Act. The motion to dismiss the complaint as to Local 2311 is, therefore, granted. Oertel Brewing Company, et al., 93 NLRB 530, 531, enfd. 197 F. 2d 59 (C.A. 6). D. Concluding findings The Respondents urge that they were not responsible for any misconduct on the part of the strikers. In effect, they have sought to establish that they were no more 77 William Maddix was another individual alleged in the complaint to have been an agent of the Respondents. The record contains no evidence as to his activities. Con- sequently, it will be recommended that the complaint as to him be dismissed '8 Myers did not contradict the foregoing testimony and acknowledged "I think I did [have such a conversation with Karickoff]." 79 Myers conceded that Sergeant Pike had related a substantially accurate aee^"int of their conversation. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than innocent bystanders to the events in question: That the employees of the .Charging Parties had gone on strike of their own volition, that they had remained on strike without any inducement or direction from the Respondents and that the latter had not authorized picket or assembly lines. The evidence in this case is to the contrary. The whole strength of the UMW organization was thrown into the struggle, its representatives and agents established picket stations at vantage points in Taylor and Barbour Counties from which pickets could be, and were, marshalled for assignment at any of the strike-bound properties, the International and District representatives were frequently, and at times almost constantly, in attendance, and, finally, the pickets received weekly strike benefits that by the end of 1958 approxi- mated $180,000. Riley made these payments to only 138 men. All were striking .employees of the employers in Barbour and Taylor Counties who were involved in -the organizational drive of the UMW. Riley and other representatives of the Respondents testified that the money was given only as a form of benefit to the needy. He conceded, however, that District 31 had several thousand unemployed members not involved in this organizational campaign and that none of them received any $30 per week checks. These weekly payments were doubtless inadequate to support many families. Nevertheless, they were unquestionably a strong inducement to those who wanted to continue their organizational struggle until the employers capitulated. Moreover, on this record, it is my conclusion and I find that many strikers were given to understand that, to qualify for these benefits, service on the picket line was essential. Here, as in another case involving District 31, "it is abundantly shown that repre- sentatives of respondents engaged in threats and violent conduct in attempts to coerce the employees of [the charging parties] in the exercise of rights guaranteed them by the act." N.L.R.B. v. United Mine Workers of America, District 31, et al., 198 F. 2d 389, 390 (C.A. 4), cert. denied 344 U.S. 884. Upon the evidence and findings detailed above, it is my conclusion that District 31 and the International, violated Section 8(b)(1)(A) of the Act by the use of mass picketing to deny the right of ingress and egress to the employees of the Charging Parties to the mines and tipples of those employers, by threatening to assault, and assaulting, the aforesaid employees, by threatening to assault, and assaulting, the independent trucking con- tractors used by the Charging Parties as well as the employees of said contractors, and by assaulting one of the employers.80 More specifically, I conclude and find that District 31 and the International violated the aforesaid section of the Act by the following action and conduct of its agents: Case No. 6-CB-468 (1) By the mass picketing, the accompanying threats of reprisal voiced by the -pickets, and the stoning of nonstrikers that occurred at the Brownton intersection, on the Grafton Coal road and along the Stewart Run road, on and after April 22, 1958, which intimidated and prevented the employees from reporting for work. (2) By threats to and/or assaults upon employees Riffle, Wilson, Robinson Keene, Williams, Parks, Cleavenger , and Menear which prevented or delayed them from reporting for work on occasions in April , May, and June 1958 , as described in detail, supra. (3) By the assault committed upon Sammie Marra in May by Shoulders , Kimber, and Wilfong.81 80 The issue, as framed by the complaint in the instant case, is solely whether the Respondent Unions restrained or coerced employees in the exercise of their statutory rights. It is, therefore, no defense for the Respondents to urge, as they did during the hearing, that the Charging Parties had also committed unfair labor practices Communi- cation Workers of America, AFL-CIO (Ohio Consolidated Telephone Company), 120 NLRB 684, 686-687 (".. . the Act provided the Respondents with ready redress, if they believed the Company had engaged in misconduct by filing an appropriate charge with the General Counsel for his independent determination as to whether to proceed with the issuance and prosecution of a complaint."). See International Longshoremen's and Warehousemen's Union, CI.O. (Sunset Line and Twine Company ), 79 NLRB 1487, 1492, footnote 6 ("Unlawful conduct on the part of the Company, if established, would neither extinguish the right of its employees to be free of union restraint and- coercion, nor justify the Respondent Unions' alleged infringement of that right.") E1 Such violence on the part of the union agents, although committed upon an em- ployer and outside the presence of the employees, was of such a character that the latter could reasonably be expected to learn of it and be intimidated thereby. N.L.R.B. v. UNITED MINE WORKERS OF AMERICA , ETC. 177 (4) By the threat to Clarence Wolfe and Herman Riley implicit in remarks and conduct of John Maddix, Jr., and Aussie Kimber in Brownton on about June 1, 1958. (5) By the threat uttered by a group of pickets in mid-June 1958 when Howard C. Williams was told that the next time he sought to report for work he should be armed "because we have got guns . . . we will kill you." 82 (6) By the incident late in June in which Parks, Williams, and several other employees, accompanied by Louis Marra, were proceeding from the mine toward Pepper, when the road was blocked by pickets, the nonstrikers were stoned and Williams was shot. (7) By the threat of Ed Fluhardy, a striker, to kill Williams if he continued to work at the mine and the intimidation practiced by Shoulders in pursuing Wolfe, a nonstriker, with his automobile, while the latter walked to and from work. (8) By the assault upon Lloyd Kelly and Paul Gooden on June 29, 1958, and the stoning of Gooden and the other nonstrikers with him by pickets in the company of Myers, Bland, and Steve Maddix. (9) By the picketing of Riffle's home in August by Steve Maddix, Bland, and Shoulders. (10) By the action of Shoulders and other pickets with him in preventing William Messenger, a nonstriker, from reaching the Marra mine in August 1958. Case No. 6-CB-467 (1) By the threat implicit in the remark of Mayle to Parks and Williams that work at the M & T mine had to be stopped "and if it takes violence we will have violence." (2) By the mass picketing which blocked the Stewart Run road on May 22, the subsequent stoning of nonstrikers Bennett, Booth, Williams, and Parks when they attempted to proceed, and the assault upon Williams committed by Bland. Case No. 6-CB-466 (1) By the mass picketing at Gabe's Fork on April 22, 1958, and thereafter, which intimidated and prevented the employees from reporting for work. (2) By the restraint and coercion implicit in the remarks of Mayle on April 21 when he told employees Greathouse and Smith "either join the Union or you are not going to work" and on April 22 when, after they had walked through the picket line, Mayle told them "We will kill you - -, if you come back in the morning." (3) By Mayle's remark to nonstriker Coffman on April 23 that if the latter went to work at the mine ". . . we will come upthere and beat you off." (4) By the stoning of Breedlove, the independent trucking contractor, and Mitchell, a Blue Ridge employee, by pickets in the Gabe's Fork intersection on May 27, and the threats of reprisal voiced by other pickets at the tipple site to the Blue Ridge employees and Breedlove that same day.83 Case No. 6-CB-482 (1) By the mass picketing, the road blocks and the threats of reprisal which the agents of District 31 and the International used to intimidate and prevent the nonstrikers among the Sinsel employees from reporting for work at both the Brown- ton and Reppert jobs on and after May 9, 1958. (2) By the threat implicit in the remark of William Bland, while among the pickets on May 12, to employees Yacenech and McDaniel that "If we have to, we can spill some blood to keep you from going in there." Local 140, United Furniture Workers. etc, 233 F 2d 539, 540-541 (CA. 2) ; United Packinghouse Workers of America, AFL-CIO (R. L Ziegler, Inc.), 123 NLRB 464; H. It. McBride, d/b/a H. R McBride Construction Company, 122 NLRB 1634. 82 Altliough these pickets were not identified by Williams, their actions and conduct were similar to those in which many identified agents of the Respondents participated both before and after this occasion In this context of violence and intimidation and the failure of the Respondents to repudiate this type of conduct by their admitted -^ents, I find District 31 and the International responsible for the threat directed to W,11i•iins on the above-descnbed occasion Central Massachusetts Joint Board, Textile Workers Union of Ametiea, AFL-Cf0 (Chas Weinstein Company), 123 NLRB 590 83 The assault upon Breedlove. under the circumstances present here, was as in- timidatory as the stoning of the Blue Ridge employees See cases cited supra, footnote 81. 586439--61-vol. 129-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case No. 6-CB-469 (1) By the mass picketing and the accompanying threats of reprisal voiced by the pickets at the Thompson tipple on June 9 and 13 which intimidated the Thomp- son employees, the independent trucking contractors, and the employees of the latter. (2) By the declaration of pickets at the Rosemont strip on June 10, that they ought to beat up Donahue, a nonstriker, for refusing to sign a UMW card. (3) By the road blocks and threats used by the pickets on both June 9 and 13 to intimidate Kovar and Miller, drivers for independent trucking contractors, and in that manner prevent them from hauling coal from the Rosemont strip to the Thompson tipple. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Unions, District 31 and the International, and their agents, set forth above, occurring in connection with the mining operations of the employers as appears in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead, and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The General Counsel urges the entry of a "broad order" against the aforesaid Respondents prohibiting similar violations throughout the territorial jurisdiction of District 31. It is clear from all the facts that the coercive practices found to be unlawful in all of these cases have been typical methods and techniques utilized by District 31 and the International in their organizational activities and that it may be reasonably anticipated that the Respondents will engage in similar conduct in the future not only against the employees of the five employers involved but as to other employees engaged in mining operations anywhere within the organizing limits of District 31. N.L.R.B. v. United Mine Workers of America, District 31, et al., 198 F. 2d 389, 390 (C.A. 4), cert. denied 344 U.S. 884; United Mine Workers of America, District 2 (Mercury Mining and Construction Corporation), 96 NLRB 1389, 1391-1392, enfd. 202 F. 2d 177 (C.A. 3). For this reason, I conclude that the policies of the Act will best be effectuated by recommending the entry of a broad order in terms coextensive with the threat of future violations of Section 8(b) (1) (A) of the Act. Further, because of the scope and range of the activities of the afore- said Respondents I shall recommend that they be required to publish the terms of the notice in a newspaper of general circulation within the territorial jurisdiction of District 31. United Hatters, Cap & Millinery Workers International Union, AFL-- CIO, et al. (Louisville Cap Company), 123 NLRB 572; N.L.R.B. v. Local 135, International Brotherhood of Teamsters, etc., 267 F. 2d 870 (C.A. 7), enfg. Local 135, International Brotherhood of Teamsters, etc. (Capital Paper Company et al), 117 NLRB 635, 647. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Mine Workers of America, United Mine Workers of America, District 3 1, and United Mine Workers of America, Local 23 11, are labor organizations within the meaning of Section 2(5) of the Act. 2. Each of the Charging Parties herein is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By restraining and coercing the employees of Marra Bros., M & T, Blue Ridge, Thompson, and Sinsel, and the employees of various independent trucking contractors doing business with the foregoing, in the exercise of the rights guaranteed in Section 7 of the Act, District 31 and the International have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Local 2311 has not restrained or coerced the employees of the Charging Parties as alleged in the complaint. (Recommendations omitted from publication.]