Local 5881, United Mine Workers of America

LOCAL 5881 , UNITED MINE WORKERS OF AMERICA 1181 it all depended upon how he behaved with respect to adhering or staying away from the Union? I find all these but tenuous arguments, based more upon suspicion and unsupported implication than on positive probative proof. Like all records in cases of this type, the ultimate finding must be based upon the totality of the record. Upon consideration of all the evidence , I find it insufficient to support, as required by law,2 the allegation that Bouton was discharged because of union or other protected con- certed activities, and I shall therefore recommend that the complaint be dismissed in this respect. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III , above, occurring in con- nection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic; and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in unfair labor practices, I shall recom- mend that it cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact , and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Pan-O-Ramic Package Co., Inc ., is engaged in commerce within the meaning of the Act. 2. United Textile Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Statutes. 3. By threatening to deprive employees of existing economic benefits in their conditions of employment , and to make it "harder" upon them if they choose to engage in collective bargaining through a union, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) 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. [Recommendations omitted from publication.] 2 Glen Raven Silk Mills, Inc., 101 NLRB 239, enfd. as mod . 203 F. 2d 946 (C.A. 4). Local 5881, United Mine Workers of America and Grundy Min- ing Company. Case No. 10-CB-1525. March 3, 1961 DECISION AND ORDER On November 21, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The 130 NLRB No. 112. 1182 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Inter-' mediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommen- dations 'of the Trial Examiner, with the following modifications : The Trial Examiner found, and we agree, that the Respondent en- gaged in serious acts of violence in violation of Section 8(b) (1) (A) of the Act. It is the contention of the Respondent that although these acts were committed by its members, perpetrators of the incidents were not officers or agents of the Respondent whose acts could be imputed to it. We find no merit in this contention. As the Trial Examiner found, the Respondent's president and its financial secretary were present in the mob when the violent acts against employees, the Employer's mine superintendent, and an organizer for a rival union were committed. These officers took no action to halt the violent acts or to repudiate them. In these circumstances, we find that by the failure of these officials of the Respondent to repudiate this conduct the Respondent ratified the acts of violence and cannot escape liability for their commission.' We find it unnecessary, therefore, to determine whether the individuals who perpetrated the acts of violence were members of a union committee, for whose acts in that capacity the Respondent might be liable. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 5881, United Mine Workers of America, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Assaulting or threatening with violence employees of Grundy Mining Company. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed 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 at the offices and meeting halls of the Respondent copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed' by an official representative of the Respondent, be posted by it immediately upon receipt thereof, and 1 Grant-Billingsley Fruit Company, Inc., 127 NLRB 50; Chas. Weinstein Company, Inc., 123 NLRB 590 ; Midwest Homes, Inc., 123 NLRB 1806. 2 In the event that this Order is enforced by a decree of a -United States , Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the-United states Court of Appeals , Enforcing an Order." LOCAL 5881 , UNITED MINE WORKERS OF AMERICA .1183 'be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to its members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for the Tenth Region for posting by Grundy Mining Company, said employer being willing, at all locations where notices to its employees 'are customarily posted. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF GRUNDY MINING COMPANY Pursuant to a Decision and Order of the National Labor Relations 'Board, and in order to effectuate the policies of. the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT employ or threaten to employ physical violence for the purpose of preventing employees of Grundy Mining Com- pany from operating mines for that employer., WE WILL NOT in any like or related manner. restrain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. Loo u. 5881 , UNITED MINE WORKERS 'OF AMERICA, Labor Organization: Dated---------------- By--=----------=----------=-=-=-------- (Representative ) ' ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE ' A charge having been filed and duly served, a complaint and notice of hearing .thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Re- spondent Union, a hearing involving allegations of unfair labor practices in violation of Section 8(b) (1) (A) of the National Labor Relations Act, as amended, was held in Chattanooga, Tennessee, on October 26, 1960, before the duly designated Trial Examiner. At the hearing all parties were represented by counsel, and were afforded full .opportunity to present evidence pertinent 'to the issues, to argue orally, and to file briefs. Oral argument was waived. Briefs have been received from-General Coun- sel and the Respondent Union. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE CHARGING PARTY Tennessee Consolidated Coal Company is a Delaware corporation having an office and place of business in Tracy City, Tennessee, where it is engaged in mining, processing, and selling of coal. During the year preceding issuance of the com- plaint Consolidated sold and shipped products valued at more than $100,000 di- rectly to points outside the State of Tennessee. Grundy Mining Company is a Tennessee corporation and is a wholly owned sub- sidiary of Consolidated. It maintains its office and place of business in Tracy City, Tennessee, and is chartered to engage in the business of mining coal. Pursuant to contract, Consolidated has leased land to Grundy to perform Consolidated's mining operations. By terms of contract, also, Consolidated agrees to sell all coal produced by Grundy. On or about August 5, 1960, Consolidated was awarded a contract by the U.S. Navy for coal produced by Grundy valued at more than $150,000. The contract requires shipment of the coal by Grundy to points outside the State of Tennessee within the next 12 months. The Charging Party, Grundy, is engaged in commerce within the meaning of the Act. II. THE RESPONDENT UNION Local 5881, United Mine workers of America, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues The events in issue took place in a period of about an hour early the morning of August 16, 1960. General Counsel claims that when Grundy tried to start mining operations that morning, a large number of the Respondent's members, officers, and agents massed near the mine entrance and with threats of violence prevented newly hired em- ployees from working, ejected the mine superintendent from the minesite, and assaulted an organizer for a rival union. The Respondent Union denies all such allegations. Described more fully in a companion case (Tennessee Consolidated Coal Company, Cases Nos. 10-CA-4523, 10-CA-4524, 131 NLRB No. 80) where the Respondents are reversed, is the controversy out of which developed the brief action here involved. In this report it appears enough to note that officers and members of the Respondent Union, who until the spring of 1960 had operated mines in this area under contract with the parent company, Consolidated, were somewhat less than kindly disposed toward the move initiated by Grundy, the newly formed subsidiary, to open new Consolidated mines through use of members of a rival labor organization, called the Southern Labor Union. Material facts and conclusions are set out in the following section. B. Conduct involved According to their own testimony, President Waldon Schrum and Financial Secretary Alder Brewer together with a large number of members of the Re- spondent Local,' having heard that Grundy was about to open a new mine, gathered near the site the morning of August 16. Although both Schrum and Brewer said they saw no one in the group who was armed, more credible testimony is to the effect, and the Trial Examiner finds, that many of this mob, "most all" of whom "belonged to the Local," according to Schrum, were carrying shotguns'. Soon thereafter 3 carloads of new employees, some 18 in. number, started to turn 'off a main road through the hills, at a point called Dogwood Flats, where an access Toad to the minesite branched off. Bob Banks, a member of Respondent Local's mine or grievance committee, and another individual were posted at this junction. The new employees asked Banks if he had seen Paul Gibbs around there-Gibbs being the mine superintendent to whom they had been told to report. Banks said 1 Schrum's estimate was 40 or more ; Superintendent Gibbs said there were 75 or 100. LOCAL 5881 , UNITED MINE WORKERS OF AMERICA 1185 he had not seen Gibbs and asked what they were doing there. One employee re- plied that he "didn't know right then." As soon as they had stopped to question Banks, the unidentified individual with him hastened down the road toward the mine. Promptly the mob of members of the Respondent Union came up the access road to Dogwood Flats, piled out of their cars carrying guns, and ordered the new employees to get out of there.2 It is undisputed that Banks told them that if the mine was to be worked, they (members of Local 5881 ) would work it, and warned them that they had the choice of leaving there or being killed. Discretion caused the new employees to leave at once, hurried on their way by a blast from a shotgun behind them . None of them have returned to Dogwood Flats, so they said, since that day. Shortly after these employees went elsewhere, Superintendent Gibbs came up the access road from the pocket where he had arrived earlier that morning. He was immediately stopped, as he described it, by a "mess of men . . . with shot- guns." E. Woodley, another member of the Local's mine committee, informed Gibbs he was about to be killed, and reached in to haul Gibbs from the cab of his truck. Gibbs suggested that he was capable of getting out of the truck for that purpose without help. He did so, and was not killed. Someone in the mob called out that they had "that little two-bit organizer over there," according to Gibbs' uncontradicted testimony, whereupon they decided to take the superintendent to this point, where "they might just whip each of us." Gibbs was thereupon ordered into his truck, and by the mob in their cars escorted to a point 2 or 3 miles distant to a road leading in to another mine . Here a group of Local members was holding Cain, an organizer for Southern Labor Union. In the presence of Gibbs, Schrum, and Brewer, Cain was beaten by three individuals, two of whom were identified by Gibbs as being members of the Local's mine committee .3 C. Conclusions The Respondent Union having offered no evidence to show that its officers , agents, and members were gathered at Dogwood Flats that morning to hunt squirrels or to repel either revenuers, Castro, or the U.S.. Navy, the Trial Examiner infers that their real purpose was to "restrain and coerce" the new employees from going to work as members of Southern . Such methods are frowned upon by the Act. The Trial Examiner therefore concludes and finds that by threatening employees and Gibbs with violence, and by assaulting Cain , a representative of a rival labor organi- zation, the Respondent Union violated Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above , occurring in con- nection with the operations of the Charging Party , described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce and tend to lead to labor disputes burdening and obstructing the free flow of com- merce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner recommends that it cease and desist therefrom ; and take certain affirmative action designed to effectuate the policies of the Act. Upon 'the -foregoing findings -of'-fact, and upon the 'entire record in the case,'the Trial Examiner makes the following:' . CONCLUSIONS OF LAW 1. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 7 According to some witnesses the invitation was not so simply expressed. s Banks and Meeks. 597254-61-vol . 130-76