United Mine Workers, District 12

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Mine Workers of America, District 12, and United Mine Workers of America, Local Union No. 2117 (Old Ben Coal Company) and Raymond Fur- low, Incorporated. Case 14-CC 1272 December 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND Mi MBF RS JENKINS AND PEN ILI,(J On August 30, 1978, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. m Although we agree with the Administrative L aw Judge's dismissal of the complaint herein, we do not agree with his characterization of Sheet Metal Workers Union. Lox'al No 2 (Hall Refrigeration Salesr & Service). 203 NLRB 954 (1973). as noted in fn. 16 of his Decision. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ. Administrative Law Judge: This pro- ceeding was heard in St. Louis, Missouri, on June 5, 1978, upon an unfair labor practice charge filed on April 13, 1978, and a complaint issued on April 25, 1978, alleging that Respondents District 12 and Local 2117 violated Sec- tion 8(bX4XB) of the Act. In their duly filed answer, Re- spondents denied that any unfair labor practices were com- mitted. At the hearing, no appearance was entered on behalf of Respondents, nor were they in any manner represented. However, prior to the opening thereof, in the presence of counsel for the General Counsel, I participated in a tele- phone conversation with counsel for the Respondents, who explained that he had been misinformed as to the date of the hearing. This was disputed by counsel for the General Counsel, who represented that on Thursday, June I, 1978, she consulted with Respondents' counsel and informed him that the hearing would proceed on Monday, June 5, 1978, that the latter indicated his agreement thereto, and that he further agreed to have a witness subpenaed by the General Counsel present at that time. lUpon consideration of the foregoing, an effort was made to proceed with the hearing in a manner which would ac- commodate the interest of all parties. To that end, counsel for Respondents was informed of my intention to proceed forthwith with the General Counsel's case-in-chief, and as the transcript reveals, to afford Respondents a 20-day pe- riod in which a motion to reopen the record might be en- tered on their behalf. However, as the record discloses, it was my intention to grant such a motion only if stating substantial grounds "supported by primary evidence of a type that would be received in a court of law .... " To date, no motion to reopen has been filed. Accord- ingly, the issues presented are deemed ripe for resolution. Upon the entirety of the duly constituted record in this proceeding, and after due consideration of the post-hearing brief filed by the General Counsel, I make the following: FINDINGS OF FACT I JURISDICTION Raymond Furlow, Incorporated, 2 is an Illinois corpora- tion engaged in grading and general earth moving work from its principal office and place of business in Benton, Illinois. During the calendar year preceding December 31, 1977, a representative period, Raymond Furlow, in the course and conduct of said operations, performed services valued in excess of $50,000 for customers, each of whom produced, sold and distnbuted products valued in excess of $50,000 from their facilities in the State of Illinois for use by customers located outside the State of Illinois.3 Old Ben Coal Company, a subsidiary of General Dy- namics Corporation, maintains an office and place of busi- ness in Benton, Illinois, from which it is engaged in the production, sale, and distribution of coal and related prod- ucts. In the course and conduct of said operations, Old Ben Coal Company annually ships coal valued in excess of $50,000 from its Illinois worksites to customers in States other than the State of Illinois.4 Based upon the foregoing, I find that Raymond O. Fur- low, Incorporated, and Old Ben Coal Company are, and have been at all times material herein, employers engaged /Although not appearing on tile face of the transcript. Respondents' counsel was Informed directly that any resumption of the hearing contemp- lated that the General Counsel would make available all witnesses affording testimony during her case-in-chief It was anticipated, in that event. that counsel for the Respondents. with the aid if the transcript of earlier testu- mony. could conduct full and effective cross-examination on that basis. Name appears as amended at the hearing. Based on the credited testimony of Ray.nlond Furlow. 4Based upon the credited testimon) of Alfred Jack Webster, general manager. of the Old Ben Coal Company 800 UNITED MINE WORKERS, DISTIRCT 12 in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that each constitutes a "person" within the meaning of Sec- tion 8(b)(4XB) of the Act. II THE I.ABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that United Mine Workers of America, District 12, and United Mine Workers of America, Local Union No. 2117, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRAC(ICES A. The Issue The question of major consequence in this proceeding is whether Respondent Unions in furtherance of a primary labor dispute with Raymond O. Furlow, Inc., "threatened, coerced, or restrained" Old Ben Coal Company, a neutral to that dispute, within the meaning of (ii) of Section 8(b)(4) of the Act. B. Concluding Findings Raymond O. Furlow, prior to April 1, 1978.5 was a sole proprietorship engaged in performing grading work on farms and coal mines. Furlow, himself, regularly worked on those jobs, utilizing his own equipment, often without additional employees. On April 7, Furlow was working alone, cutting grass and weeds on a I-day job for Old Ben Coal Company. Though scheduled to perform an additional job for Old Ben Coal, Furlow's return was delayed initially because of adverse weather conditions. As for succeeding events, Furlow testified that on April I I, he was informed by Old Ben's chief engineer, Bill Hake, that Hake had been informed by Alfred Webster, Old Ben's general manager, that Norm Beattie, allegedly an agent of Respondent Unions, had contacted Webster. Hake relayed to Furlow that Beattie informed Webster that Old Ben's contract with the UMW precluded non- union help, and that since Furlow was not a member of the Union and held no union card, Furlow could not do any more work for Old Ben until the matter was straightened out. Hake did not testify. Webster testified as to the content of his conversation with Beattie. Thus, according to Web- ster, in the same general time period, he received a phone call from Beattie, opened by Beattie stating: "I have a problem." Webster asked what he could do for Beattie. The latter replied that Raymond Furlow was performing work on mine 25, but neither possessed a union card, nor was a member of the National Bituminous Contractors As- sociation. Webster indicated that Furlow had previously been a member of the Union, but Beattie clarified that this was no longer true. Webster said that he would check with All dates refer to 1978. unless otherwise indicated. Hake to find out what was going on. Beattie then indicated that ". . some of the boys were angry because Mr. Fur- low was performing work at Old Ben Mine No. 25." Webster claims that he then went to see Hake, who ad- vised Webster that Furlow had no work at mine 25 and was simply removing his equipment. Webster thereupon telephoned Beattie relaying this information. Beattie indi- cated that he would check in to it and get back to Webster. Webster never again heard from Beattie. Insofar as this record discloses, the phone calls between Beattie and Webster descnbed above were the only in- stances of direct communication between an alleged agent of Respondent Unions and the neutral employer, Old Ben, during the time frame relevant to this proceeding. The only additional facts, which are material, relate to a meeting between Furlow and Beattie which, according to Furlow's testimony, took place on the day after his phone call from Hake. Thus, Furlow relates that at that time, he, together with a friend, went to the union hall to clarify his situation. Furlow met Beattie in the latter's office, where he ex- pressed his understanding that Beattie had called Webster and told Webster that as Furlow was not a union member, he could not work at the mine. Beattie confirmed to Fur- low that such a conversation had occurred. Furlow then informed Beattie that he was present for the purpose of applying for a union card. Beattie indicated that Furlow could not belong to the Union, advising that he had ex- pressed that position to Furlow previously.6 Furlow indi- cated that there was nothing in the contract to this effect, and requested that Beattie show him something in writing to support his position. Beattie answered that it was a ques- tion of union policy. With this. Furlow advised Beattie that he would take action to remedy the situation. Beattie indi- cated that this was what lawyers and courts are for. As Furlow was leaving, Beattie asked, ". . . are you going back to Old Ben to work?" Furlow said "no, I don't want to cause an)y problems for Old Ben or any trouble for Old Ben . . . I'm not going back up there until I get it straight- ened out." Beattie then informed Furlow that if he did return, "there would be pickets. . ." 7 In order to maintain that a labor organization has en- gaged in unlawful secondary activity, the General Counsel has the burden of proving conduct entailing two distinct elements. Thus, the record must establish that a neutral was the subject of pressures defined in (i) or (ii) of Section 8(b)(4). Second, consistent with Section 8(b)(4XB), such means must be shown to have been invoked for an object of forcing the neutral to cease doing business with the pri- mary disputant. The controlling issue presented by this record, relates to whether Respondents, in furtherance of their dispute with In I197S. urlov, entered a contrae' lth L. ocal 2117 In executing the contract. he advised Local 2117 of his intention to oper;lte his own mlachin- erv. alongside his emplosees. and of his desire io join Ls)cal 2117 himself Furlow was advised h, the t nlon that it was against union polhcy for Fur- low toI bhe miember of the t non. while operating his own equipment However, the Inion also indicated that no prohlems would arise from that fact I. ler. however. that contract expired In December 1977. and no re- ne,,al .is ,ught hb either L.oal 21 1 or Furlow during the period preced- ing the events here in issue I hi, was the on[l .onver;ation between Beattie and I urloiu during the perio d relevlant Ii this prtoecudl n. 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furlow, threatened, restrained, or coerced Old Ben, within the meaning of (ii) of Section 8(b)(4). No serious contro- versy exists as to the other elements of the alleged viola- tion. Thus, it is clear that the overtures addressed to Old Ben substantiated the secondary objective required by Sec- tion 8(b)(4XB).8 Furthermore, on behalf of the General Counsel there is neither claim, nor evidence that Respon- dent engaged in conduct delimited in (i) of Section 8(b)(4).9 The critical 8(b)(4)(ii) issue centers upon the two telephone conversations between Beattie and Webster.'" In the first thereof, Beattie opened with the comment that Beattie had "problems." As the conversation progressed, Beattie went on to conclude, with a statement that" . . some of the boys were angry because Mr. Furlow was performing work at Old Ben Mine No. 25." Webster's version does not re- veal anything further which could be considered material to the instant inquiry, and the evidence of communications between Respondent and Old Ben includes no other matter reflecting direct or indirect forms of restraint. Upon consideration of the governing precedent, it is my view that the foregoing falls short of persuasively substanti- ating the General Counsel's position. Thus, absent picket- ing or work stoppages latitude has been afforded to labor organizations in communicating with neutral contractors concerning their interest in eliminating an offending sub- contractor from a particular worksite. Though a second- ary objective may be revealed through such communica- tion,'2 the question of whether the neutral in the course of such communication was "threatened, coerced or re- strained" within the meaning of Section 8(bX4)(ii) requires independent assessment. Research discloses no easily ap- plied test for determining how far a labor organization might go in legitimately expressing such demands. It is clear, however, that in a number of cases the Board has condoned, for purposes of Section 8(b)(4)(ii), expressions with implications more dire than those apparent from the remarks attributable to Beattie in this case. Thus, the Board declined to find 8(b)(4)(ii) conduct in Local No. 695, Laborers International Union of North Amer- ica, AFL CIO, 209 NLRB 410 (1974) (When the neutral expressed its interest in avoiding problems or picket lines. respondent union's agent replied "I don't want to either, 8 Respondents' answer admits that, at all times material. Respmlndcnts were engaged in a labor dispute with F urlov. It is platn from the record that Old Ben's only offense was its business relationship . with Furlov, I or Loc.al 21 17 did not represent employees of Old Ben. and its contacts w ith the latter were confined to its interest in enlisting Old Ben's aid in connectiin ,ith it, dispute with Furlow. Sec. 8(b)(4Xi) interdicts the inducement of secondary emplo sees to cease work in pursuit lof a c*essation of business objective liere there is nl, evide'nce that Respondents engaged in a strike or picketing, or that Iteir alleged agents in any sense communticled with emniployees of Old Ben or any other neutral. Although the complaint makes no specific reference to Sec. 8 hH4)(li). that omission is not deemed fatal. as the conduct uith which Respondents are charged therein is sufflciently precise to afford notice as to the provlsion of the Act in issue here. 1i Under the statutor) scheme. should noncoercivc, persuasive nactics re- sult in a neutral's removal h) the princar_ emplo)er. it is cntlrely po ssiblh that a cause of action might exist under Sec 8(e) of the Act, 12 See. e.g.. Io al . Inte rtllr ilonalc HrBrlhtrhv,old f v tc ln c ,rl er, . /. 1. C(IO (Ne% Yolrk Ielephonec ( ionptir). 140 NL RB 729. 730. enfd 325 f 2d 561 (2d ('lr 1963) but there may have to be one."); in Carpenters District (ouncil. United Brotherhood of Carpenters and Joiners of America, AFL-C(IO (Apollo Drv Wall), 211 NLRB 291 (1974) (the neutral general contractor was informed by re- spondent union that there might be "trouble" or "prob- lems" if a nonunion subcontractor were retained):' 3 Car- penters District (Council of Houston and Vicinit), (Astrodomlain Corporation), 202 NLRB 744, 745 (1973) (union asked a neutral what would be done ". . . if the roof blew off the Astrohall," and then expressed its objec- tion to the presence of a nonunion subcontractor); and Electrical Workers Union Local 38, International Brother- hood of Electrical uWorkers, AFL- CIO (Hoertz Electric Maintenance (o.), 138 NLRB 160, 161 (1962) (where re- spondent IBEW threatened to seek cooperation of the union representing the neutral's employees-adding that the neutral had never had difficulties with the latter be- fore- in demanding that a nonunion electrical subcontrac- tor be removed). These holdings are hardly of aid to the General Coun- sel's cause in this proceeding. Here. Beattie's statements to Webster do not, as the complaint alleges, threaten that "unspecified adverse action" would be taken.i4 The lan- guage of ultimatum was not used and nothing in his re- marks tended reasonably to convey that retaliation in the form of economic pressure was contemplated against Old Ben. As for what he did say, it is noted that an element of employee anger or dissatisfaction might be assumed to ex- ist whenever a labor organization grieves employer work assignments to an objectionable employer. To infer a threat simply because such discontent has been expressed would simply prove too much; it would impel an inference of conduct within the ambit of (ii) of Section 8(b)(4) when- ever such demands are addressed to neutrals. Such a result could not be reconciled with the precedent cited above. Notwithstanding the foregoing, the General Counsel correctls observes that in borderline situations, statements to a neutral have been evaluated in the context of sur- rounding circumstances which might shed light on their true nature.15 In this regard. the General Counsel points to Beattie's statement to Furlosw whereby Beattie disclosed an intention to engage in picketing. It is urged that this ex- pression be read into Beattie's remarks to Webster so as to construe as a threat to picket. the language: "I have a prob- lem . . . some of the boys are angry ... " I find no merit in this contention. There is no evidence that Old Ben, or any of its represen- tatives. was ever made aware of Respondent's declaration i1 hlie fBoard. at fl I of its decision, sought ti lilit the scope c f the holdmin theretl. hut did Nol lll} repudia;te the Administrative tLaw Judge's [inidlngs Iht,, such .ordcs cerI uttered. 14( f I d . I- hitl, lrltlli t/rilherh/ d I if L./itrial lW4rcAer.. A L ('1t l( hcIc h /c Irac ( c,iilinil. I, , 2014 Nt R B 193(19731. where. in additioin to aclu;l picketicig. there ,s, is lIhretl of ulnspecified job iaction. i.e. neutral vcMuld "ha.;e tro uble" lilke dtiucliltltons appear in I itrted trothcrhci d ,if ( ic'ljlc(ci & Jclhr, c I 4tc rlii, , i ./ cc cl L c*io 2067. 4A L (If0) fBattllerntt (cmicri n 1.c Im /, 1(66( N LR B 532 11967). atid /lIrcn Wiorkerc ltcal Uonio N., 1 , Intel rnlciwtcil 1 , ,itci,, , oi Bridgec Structural acid Ornamcntcal Iron WorAcr. 4/'1 (; 1( tl c ( ici (/,[ la ( uotjtcpni). lo) NlRB 20(1 (1969) Sec. e.g . She/ic i tcta i i -rA cr I trcm., Ltwu]l :k i1 (Bat:il Hc/ll d h a I//I Rcl i,p, rciccli Si/ .x ri , cc ). 2113 NI RB 954. 95s, (1973); Lt rted firillUtii od i llt ? ¢ti xiF icc a t trA /ccir,' 4 4im rc c a. c[ a.o l I 'n.. n ,X 206'7. A l. (1( ) (B tBtiicroii lt ( 4.irtrtt licth ( ,,mt[ ill. I1,c, u i,cra. 537 802 UNITED MINE WORKERS. DISTIRCT 12 to Furlow. As such, to adopt the General Counsel's posi- tion is to assume that the neutral was coerced, restrained. or threatened by matters beyond its knowledge. Contrary to the General Counsel, a declaration of intent. which is collateral to conduct of which the neutral is aware is of no aid to the inquiry, notwithstanding its disclosure of an evil intention. The issue under Section (ii) of 8(b)(4) is not what the Union intended, but what was conveyed to the neu- tra .16 The General Counsel also urges that the words directed to Webster be considered in the light of disruptive labor conditions which faced Old Ben during periods proximate to this dispute. In this connection. Webster credibly testi- fied that in April 1978. following settlement between the Bituminous Coal Operators Association (BCOA) and the United Mine Workers of America, Local 2117 picketed Old Ben's premises for about I week.' He also testified that in 1977, Old Ben sustained I lost day for every 10 days of operation due to unauthorized work stoppages for vari- ous reasons.'8 Notwithstanding these considerations, which are not devoid of vagary, I am unwilling to find that they substantiated the existence of a climate in which it is fair to conclude that the mere expression of employee discontent implied a threat of a work stoppage." In sum, it is concluded that the General Counsel has not substantiated by a preponderance of the evidence that Re- spondents threatened, restrained, or coerced Old Ben Coal Company under conditions proscribed by (ii) of Section ' The General Counsel relies upon Sheet Metal lra/ rIer t Lnion. I ,,, lI C,/ 2 (Hall Refrigeration Sales & Seriie)J. supra at 956. (oncededly. Conceded- ly. portions of Administrative Law Judge Jalette's analsis therein might he construed as being at odds with the view expressed a;bose Nonetheless. a, I interpret that Decision. Judge Jalette's reasoning In this regard was not necessary to the Board's holding. nor to the result reached. and as such. would not necessarily be entitled to the force of binding precedent Local 2117 represents construction workers onl) It was not a p.ri? to the 1978 collective-bargaining agreement reached between the United Mine Workers of America and BCOA. Instead its emplo)ees are coered b) col- lective-bargaining agreements negotiated between constituent affiliates of the United Mine Workers of Amenca and the American Bituminous Con- tractors Association. 1s Although I credit Webster. I would note that Old Ben does not emploi members of Local 2117. and his testimons does not impute responsbihilit for any of these work stoppages to that Local. It is fair to infer that the 1977 stoppages involved Old Ben's employees represented by a dislinct entits within U nited Mine Workers of America. iS Webster's testimony that the words used by Beattie raised In his mind the possibility of picketing is given no weight. Such a "possibilit)" is sug- gested whenever a union demands removal of a nonunion contractor And such a subjective reaction is no more cogent to the analisis of 8(b4)(ii) conduct than to assessment of whether particular statements bs employers constitute violations of Sec. 8(a) 1) 8(b)(4) of the Act. Said proof failure is dispositive of the 8(b)(4)(B) allegation in the complaint, which. therefore, shall be dismissed in its entirety.' CON('L LSItNS 01- .LAWs 1. Old Ben Coal Company and Raymond O. Furlow, Inc.. are Employers engaged in commerce and an industry affecting commerce within the meaning of Section 2(2), (6)., and (7) of the Act. 2. Respondent United Mine Workers of America. I)is- trict 12. and Respondent United Mine Workers of Amer- ica. Local Union No. 2117 are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Labor Organizations did not engage in unfair labor practices within the meaning of Section 8(b)(4)(B) of the Act. Upon the basis oi the foregoing findings of fact. conclu- sions of law, and the entire record in this case, and pur- suant to Section 10(c) of the Act. I hereby issue the follow- ing recommended: ORDER 21 The complaint herein is dismissed in its entirety. It is n.ot niciessarx to the result to pass upon the an'ti, er ' denall Ihiat N.ormt11 .n BelilCe aiis 11 a gent of either D)ltrict 12 or I ocidl nmon 2117 Necerthlee,. I find that the esidence does noti suhstantiiate that Bealle was in iact an1 agent ior represenlt.aie of [)istrict 12 or that he for purposes if this proceeding. ia, shows n to have acted oin behalf of that entity Furlo'is. testimonN in this regard impressed me as predicated upon subjectuse Impres- sion. and swas clnsidered too speculative to warrant credence At the sanic time. Alfred \ebhter's lesitmony touching upon the relationship between )lsirlcl 12 and I ocal 2117 threw the entire matter into a state of confusion Portions thereof suggested that these entities might well be separ;lte and distinct. with diverse jurisdiction along functional lines. but operating i I[he s,me ccoexlen,ie geographic area. With this In mind. it is acknowledeed that ( C Ixh 2. the 1977 Annual Report lIed bh District 12 with the I:.S Dtepartment of I ahor lirts Norman Beattie as an employee and "construc- tion representative." whose 1977 salary was listed as paid bs Disinct 12 Ito,,eer. considering the confused state of the record and the absence of clear esidence defining the relationship between District 12 and Local 2117, I do not consider G.C Exh. 2 to be sufficiently conclusive to substantiate the agenc allegatitn as to District 12. On the other hand. I do find that Be.atie w;is ,in agent of L ocal IUnion No 2117 whose conduct was binding upon that entity In this respect, it is noted that Beattie maintained an office at local 21 17s headquarters In addition, according to the credited testi- mons of Alfred Webster. Beattie was a representative of I.ocal 2117. wht acted tin behalf of members ,of that L.ocal In past dealings with Old Bern Coal Compans. In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions. and recommended Order herein shall, as prosided in Sec. 102,48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order. and all objections thereto shall he deemed u;tsed for all purposes, 803