United Mine Workers of America, Etc.

UNITED MINE WORKERS OF AMERICA, ETC. 795 Morgan's discharge on August 29 was not discriminatory , that he be made whole for any loss of pay sustained between August 27 and 29 by reason of the discrimina- tion against him , with interest at 6 percent, computation to be made in the cus- tomary manner 2 It has been further found that the Company, by threats , harassment, and other interference in connection with protected concerted activities , interfered with, re- strained, and coerced its employees in violation of Section 8(a)( I) of the Act. I shall therefore recommend that the Company cease and desist therefrom. CONCLUSIONS OF LAW 1. International Union of Operating Engineers , Local 542, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Robert Burton Morgan, thereby discouraging membership in a labor organization, the Company has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act. 3. By such discrimination , and by threats, harassment, and other interference in connection with protected concerted activities, thereby interfering with, restraining, and coercing employees in the rights guaranteed in Section 7 of the Act, the Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] 2The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Incmber Company, 8 NLRB 440; Republic Steel Corporation v. N L R.B , 311 U.S. 7; Isis Plumbing & Seating Co., 138 NLRB 716. United Mine Workers of America and District 30, United Mine Workers of America, and Local No. 9606, United Mine Work- ers of America and Blue Diamond Coal Company. Case No. 9-CB-1060. July 24, 1963 DECISION AND ORDER On May 1, 1963, Trial Examiner Jerry B. Stone issued his Inter- mediate Report in the above-entitled proceeding, finding that all the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that the Respond- ents International and District had not engaged in certain of the unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Respondents filed exceptions to the Intermediate Report and supporting briefs. 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 McCulloch and Mem- bers Leedom and Brown]. 143 NLRB No. 80. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 this case, and hereby adopts the findings , conclusions, and recom- mendations of the Trial Examiner only to the extent consistent herewith. 1. The Respondents herein are the International, the District, and the Local. The International and the District are signatories to a collective-bargaining agreement with Blue Diamond Coal Company, the Employer herein, which covers the latter's employees at the Leath- erwood No. 2 mine in Hazard, Kentucky. The Respondent Local is not a signatory to the agreement, and its authority, according to the terms of the agreement , is confined to the adjustment of disputes arising thereunder. The record discloses, in relevant part, that on August 28, 1962, Fred Caldwell, a member of United Mine Workers, began to work in the Leatherwood No. 2 mine. Prior thereto, he had worked in the mine of another employer and had been a member of a rival union. This latter fact, which was known to the Respondent Local herein, pre- cipitated, in substance, the incidents which constitute the basis of the complaint herein. Beginning on September 8 and continuing through September 11, the Respondent Local warned Caldwell several times that he should quit his job as other miners would not work with him because of his membership in the rival union. The Respondent Local also advised the Employer that the miners would strike if Caldwell was not dis- charged and, when the Employer refused to terminate Caldwell, the Respondent Local did call a strike. All the foregoing occurred before one Perkins, an International representative, appeared on the scene. Perkins was present at the September 12 meeting of the strikers called by the Respondent Local. At that meeting, Perkins, in the course of requesting the strikers to return to work, told the assemblage that they could cause Caldwell to quit by inflicting bodily injury on him away from the mine. The Trial Examiner concluded that responsibility attached to the Respondent Local for all the conduct detailed above, but that the Respondent International and the Respondent District were respon- sible only for the conduct beginning with the appearance of Perkins on the scene because these Respondents had no knowledge of the prior conduct and did not subsequently ratify such conduct. Thus, he found that the Respondent Local (1) violated Section 8(b) (1) (A) in its warning to Caldwell that he should quit his job as other miners would not work with him because of his membership in the rival union; and (2) violated Section 8 (b) (2) in telling Caldwell's em- UNITED MINE WORKERS OF AMERICA, ETC. 797 ployer that the miners would strike if Caldwell was not discharged, and, in striking for that objective, when Caldwell's employer refused to comply. The Trial Examiner found further that all three Re- spondents violated Section 8(b) (1) (A) in the conduct of Perkins at the Respondent Local's meeting. We agree with these findings.' While our dissenting colleague would find that the Respondents International and District are responsible for all the unlawful acts of the Respondent Local, such a holding is contrary to Board deci- sions which, in conformity with the weight of judicial authority, hold that a local union is a legal entity apart from its parent organiza- tion, and that an international is not responsible for unlawful con- duct of the local which it has not specifically authorized or sanctioned.' Here, the Respondent Local, until Perkins appeared on the scene, was acting in regard to Caldwell without authority, real or apparent, from the Respondents International and District. -Moreover, we are convinced that the Respondent Local can be considered an agent of the Respondents International and District only to the limited extent that it enforces the contract, and that the unlawful conduct of the Respondent Local here in issue was not pursuant to the contract. Furthermore, we note that neither the International nor the District was aware of the Local's misconduct until informed thereof by the Company, and a representative Was sent immediately for the purpose of settling the matter by dissuading the Local from the very action involved. The fact that he did not disapprove of the objective and counseled the Local to engage in other unlawful acts does not detract from the disapproval of the initial means adopted. Accordingly, we disagree with our dissenting colleague insofar as he Would find liability based on an Agency theory. Likewise, we do not agree with him that the Respondents International and District ratified the conduct of the Respondent Local by their failure to penal- ize the Respondent Local for calling the strike, as provided in the International constitution. We find, as did the Trial Examiner, that the evidence does not establish that the Respondent Local was not penalized. Furthermore, we would not find the failure to penalize the 1 We find no merit in the Respondents' exceptions to the Trial Examiner's credibility resolutions as the record establishes that they are not clearly erroneous Standard Dry Nall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3). we also find no merit in the Respondent Local's contentions that the issues herein are moot because the mine involved is closed and because Caldwell is at present employed in another mine owned by the Employer. See Chefs, Cooks, Pastry Cooks and Assistants, Local 89, etc (Stork Restaurant), 130 NLRB 543, 546 2 International Brotherhood of Electrical Workers, etc. (Franklin Electric Construction Company, et al ), 121 NLRB 143, and cases cited therein , Retail Clerks International Association, et al (Food Employers Council, Inc ), 125 NLRB 954, 995, United Construc- tion Workers v. Haislip Baking Co., 223 F. 2d 872 (C.A 4) , N.L R B. v. Local 1016, United Brotherhood of Carpenters d Joiners of America, AFL-CIO, et al. (Booher Lumber Co ), 273 F. 2d 686 (C.A. 2) ; United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al v. N.L R B. (Endicott Church Furniture, Inc ), 286 F. 2d 533 (C.A.D.C.). 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Local, even if shown by the record, sufficient to establish ratification of its unlawful conduct. 2. We find merit in the Respondents' exceptions to the broad scope of the Trial Examiner's recommended order. As the violations found herein were limited to one employee, Caldwell, at one of the Em- ployer's mines, we will not, as the Trial Examiner recommended, order that the Respondents cease coercing any other employees of the Employer, or any other employers within the geographical area of the Respondent District, but shall limit the Order to the violations found. ORDER The Board adopts the Recommended Order of the Trial Examiner with the following modifications : 3 Delete the words "or in any other manner" from provisions A, 1, (b) and B, 1, (a), and substitute the words, "in any like or related manner"; delete the words "or any other employer, as defined in the Act, within the geograpical limits of Local 9606, United Mine Workers of America" from provision A, 1, (a) ; delete the words "or any other employer as defined in the Act, within the geographical limits of District 30, United Mine Work- ers of America" from provisions A, 1, (b) and B, 1, (a). MEMBER LEEDOM, dissenting in part : I agree with my colleagues that the Respondent Local violated Sec- tion 8 (b) (1) (A) and (2) of the Act by discriminating against Cald- well and by attempting to cause the Employer to discriminate against him. Contrary to my colleagues, however, I would, on the facts of this case, find the Respondents International and District also liable for the unlawful conduct of the Respondent Local. As my colleagues have found, the collective-bargaining agreement at the Leatherwood No. 2 mine was executed on behalf of the em- ployees by the Respondents International and District only. Signifi- cantly, however, the record shows that it was the Local rather than the International and District that administered the agreement and implemented the contractual relationship. The fact is that only the Respondent Local was on the scene and available to handle the day-to-day problems that might arise. In fact, the International and District were not even aware that the Local had called a strike at the mine until the Employer telephoned the District, which telephoned the International, the day after the strike began. Furthermore, the terms of the agreement indicate recognition by all the parties thereto 3 In the notices attached to the Intermediate Report as Appendix A and Appendix B, substitute the words "in any like or related manner" for the words "or in any other manner" ; delete the words "or any other employer, as defined in the Act, within the geographical limits of Local 9606, United Mine Workers of America," from Appendix A; delete the words "or any other employer, as defined in the Act , within the geographical limits of District 30, United Mine Workers of America ," from Appendixes A and B. UNITED MINE WORKERS OF AMERICA, ETC. 799 that the Local would be acting for the signatory International and District. Thus, under the terms of the agreement, the adjustment of disputes arising thereunder are specifically delegated to the Respond- ent Local, without any apparent limitation on its authority to act for the International and District in adjusting such disputes. It should be noted that the Employer at no time questioned the authority of the Respondent Local to act in this matter. Nor did Perkins, the International's representative. When apprised of the strike, Perkins did not question the Local's authority to call a strike, but only the effectiveness of this course of conduct in achieving the objective of getting rid of Caldwell. Under these circumstances, I would find that the Respondents International and District, having placed the Respondent Local in the position of carrying out their objectives vis- a-vis the Employer, should not be permitted to escape responsibility for the unlawful course of action taken by the Local. Accordingly, I would find that the Respondents International and District estab- lished the Respondent Local as their agent at the mine here involved, that the Respondent Local acted within the scope of its authority, and that the Respondents International and District are liable for this conduct jointly with the Local.' Moreover, I would find further that the Respondents International and District are responsible for the Respondent Local's acts on the ground of ratification. Perkins made it clear, in his speech to the strikers, that he was in full agreement with the Respondent Local's objective of getting rid of Caldwell by any means, lawful or unlawful. This is shown by the fact that Perkins did not disavow the Local's unlawful threats to Caldwell or its unlawful attempt to cause the Employer to discharge Caldwell, but merely disagreed with the Local that a strike was the best weapon to use in attempting to coerce the Employer to get rid of Caldwell. In fact, quite the reverse of dis- avowing the Local's unlawful conduct, Perkins advocated a different, but also unlawful, method of forcing Caldwell to quit, namely, by administering physical harm to him off the Employer's premises. A further indication that the International and District ratified the Local's conduct is the lack of evidence that the Local was penalized for engaging in an unauthorized strike, although the International's constitution so requires. 4 The cases cited by the majority are, in my opinion , inapplicable here as they merely hold that a local union does not lose its identity and become an agent of its international, so as to hold the international liable for its acts, solely because of the relationship be- tween them. In the present case, however, where the agreement vested the Local with the responsibility of settling disputes without limiting its authority to do so , and where it further appears that the Local was to administer and implement the contractual relation- ship , it seems clear that an agency relationship has been firmly established , and the acts of the agent Local must, therefore , be attributed to its principals , the International and District. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I would find, therefore, on the entire record, and particularly on the foregoing grounds, that the Respondent Local was, as the General Counsel contends, the on-the-scene representative of the Respondents International and District, acting as their agent; that the unlawful acts committed by the Respondent Local in the performance of its delegated duty, therefore, bound the Respondents International and District, and that, in any event, the Respondents International and District subsequently ratified the Respondent Local's unlawful conduct. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon the charges filed on September 12 and October 9, 1962, by Blue Diamond Coal Company (herein called the Employer), the General Counsel of the National Labor Relations Board (herein called the Board), by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued his complaint dated November 21, 1962, against United Mine Workers of America, and District 30, United Mine Workers of America, and Local No. 9606, United Mine Workers of America (herein some- times called Respondent International, Respondent District, Respondent Local, and Respondents). In substance the complaint alleged that the Respondents restrained and coerced Employer's employees by actions in warning Fred Caldwell that mem- bers of Respondent Local would not work with him, and that he (Caldwell) should quit, and by advising its members to inflict bodily injury on Caldwell in order to force him to cease working for the Employer, and that as a result Caldwell was compelled to terminate his employment, in violation of Section 8(b) (1) (A) and (2) of the Act. Respondents in their answers deny the commission of unfair labor practices although admitting certain facts. Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone, at Hazard, Kentucky, on February 4, 5, 6, and 26, 1963. All parties were represented at and participated in the hearing and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral arguments, and to file briefs. Briefs from the General Counsel and Respondents have been received and considered. Upon the entire record in this case and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made. FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER As established by the pleadings, it is found that the Blue Diamond Coal Com- pany, the Employer, is a Delaware corporation, engaged in the mining of coal at its mine in Tilford, Kentucky. During a representative 12-month period, the Employer, in the course and conduct of its business, sells and ships coal valued in excess of $50,000 from the State of Kentucky directly to points outside said State. I find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that in connection with the activities hereinafter set out in section III of this report, it will effectuate the policies of the Act to assert jurisdiction in this proceeding. H. THE LABOR ORGANIZATIONS INVOLVED The pleadings establish and I so find that United Mine Workers of America, and District 30, United Mine Workers of America, and Local No. 9606, United Mine Workers of America, are labor organizations within the meaning of the Act. Noah Harris, president of Local Union 146, Southern Labor Union, credibly testified that the attorney and an International officer for Southern Labor Union had participated with him and other Local Union officials in negotiating a contract on wages and hours and working conditions with Blair Fork Coal Company. He also credibly testified that employees of Blair Fork Coal Company were admitted into Local Union membership, participated in the election of officers, and paid dues. He further testified that the Local Union received its charter and seal from the In- ternational and that the Local Union processed grievances. I conclude and find UNITED MINE WORKERS OF AMERICA, ETC. 801 that the Southern Labor Union and its Local No. 146 are labor organizations within the meaning of the Act. Caldwell's Call to Work 1 Fred Caldwell, while working at Blair Fork Coal Company, received on August 23, 1962, a letter (dated August 22, 1962) from Blue Diamond Coal Company notifying him that Blue Diamond Coal Company had certain openings at its Leatherwood No. 2 mine, and further advising that if he were qualified for "either" of these jobs, he was to report to certain designated individuals. The letter further advised that if he were qualified and did not report within 5 days from the date of the letter his name would be eliminated from the panel. Caldwell Reports to Work 2 Caldwell reported to James Begley, assistant mine foreman, on August 24, 1962.3 Begley informed Caldwell that there were some men on the panel list older (senioritywise) than he who had not reported at that time for some of the jobs, and that he (Caldwell) should report back on Tuesday (August 28, 1962). Cald- well reported on August 28 and was told that all of the jobs had been taken except that of drill operator and that this job was his if he could handle it. Caldwell ac- cepted the job and commenced work at Leatherwood Mine No. 2. Prelude to the September 8 Union Meeting 4 On September 7, One Hamilton, president of Respondent Local No. 9606, told Caldwell that he was wanted at the union hall on Saturday, September 8, 1962. Caldwell told Hamilton that he was going to get a transfer card from Local 6645 to 9606 and Hamilton told him to let it go, that he (Hamilton) could take care of it. The September 8 Union Meeting 5 On September 8, 1962, Caldwell went to the office of Local Union 6645, paid his dues up to date, secured a transfer card, and thereafter went to Local 9606's meeting. During the portion of Local No. 9606's meeting devoted to new business, President Hamilton told those assembled that there was a man here, known to most of them, named Fred Caldwell, and that he was going back to ask him if he worked at Blair Fork, and if he belonged to the Southern Labor Union. Caldwell answered that he had worked at Blair Fork and had belonged to the Southern Labor Union. Hamilton told Caldwell that if he had worked at Purity or at one of the little truck mines where they were working for $8 a day, and had a transfer card, the Union could take care of him but it was just a "question" because he had worked at Blair Fork, that there was not anything could be done, that the men were just simply not going to work with him. Caldwell was asked to step out of the meeting place for a few moments and did. When he returned Hamilton told him that the men were going to accept him in the Union, but that they had voted to not work with him. Chester Elam, recording secretary, presented Caldwell a card and told him that he had to sign a checkoff (dues) card. Caldwell told him that he had signed one at the company office. Chester Elam then said that Caldwell would have to pay a $50 initiation fee. Cald- well replied that he had a transfer card and handed it to Chester Elam. Chester Elam passed the card to Treasurer Lunt Cornett who stated, "We have to accept the transfer card, but we can protest it." The United Mine Workers of America's constitution provides that a member holding membership in a dual organization shall be expelled . Considering this and the foregoing facts I conclude and find that Respondent Local No. 9606, by its vote not to work with Caldwell, and by so informing him, violated Section 8(b)(1)(A) of the Act. 1 The facts concerning Caldwell's call to work are based on a composite of the credited testimony of Caldwell and King ( referred to as Keen in Respondent 's briefs), and in con- nection with General Counsel's Exhibit No. 5 (the August 22 letter of recall). 'The facts concerning Caldwell's reporting to work are based on a composite of the credited testimony of Caldwell and Begley. 3 Employees who worked inside the mine were instructed to report to James Begley. 4 The facts concerning Hamilton 's notification to Caldwell to attend the September 8 meeting are based on Caldwell 's credited testimony. e The facts concerning the September 8 union meeting are based on a composite of the credited testimony of Caldwell and Hamilton. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The September 10, 1962, Work Stoppages Caldwell reported to work on the afternoon of September 10, 1962. Although there were three employees who proceeded to get into the man-trip (vehicle) to go into the mines, the other employees did not. On September 10, 1962, around 4 p.m., Logan Combs (Local No. 9606 committee- man) and several union members (Dewey Parker, Fred Baker) spoke to Assistant Mine Foreman James Begley. Combs told Begley that the men did not want to work with Caldwell. Either Combs or one of the men with him asked Begley to talk with Caldwell. Begley told them that he could not, if they wanted to that they would have to talk with Caldwell themselves. Combs and the men left and went to talk to Caldwell. Logan Combs came to Caldwell at the man-trip and told him that the men were going to refuse to work with him. Caldwell told Combs that it was the men's privilege not to work with him but that it was his privilege to work anywhere he wanted to. The other employees (except Caldwell) proceeded to put their equipment up and leave work. Caldwell asked the assistant mine foreman if there was anything he wanted him to do. Begley replied that there was not. Caldwell then left for home. I conclude and find that Respondent Local No. 9606 violated Section 8(b) (1) (A) and (2) of the Act by informing the Employer in effect that the men refused to work with Caldwell, and by the refusal of its members to work with Caldwell. I also conclude and find that the Respondent Local No. 9606 violated Section 8(b) (1) (A) of the Act by Committeeman Combs' telling Caldwell that the men were going to refuse to work with him. Local No. 9606's Agents' Conversations With Begley and Forrest on September 11, 1962 7 On September 11, around 9 a.m., Respondent Local No. 9606's treasurer, Colum- bus Cornett, and Committeemen Logan Combs and Leroy Waters spoke to Assistant Mine Foreman Begley and Superintendent Earl Forrest. Cornett told Forrest that they would like to work out something concerning Fred Caldwell so the men could go back to work. Forrest told the men that there was not anything he could do since the panel had been called in line with the contract and according to qualifications. I conclude and find that by the foregoing actions of its agents, in connection with its previous actions, that Respondent Local violated Section 8(b) (1) (A) of the Act. Cornett's Conversation With Richards, et al .8 On September 11, 1962, Joseph Richards, vice president of Blue Diamond Coal Company, and Superintendent Earl Forrest and Begley met with Respondent Local No. 9606's treasurer, Columbus Cornett, and members Leroy Waters and Otis Browning. The meeting occurred around 10:30 in the morning in the superintend- ent's mine office at Leatherwood No. 2. Cornett stated that he had come back to tell Forrest that the men, who had stayed out from work, refused to work with Fred Caldwell and that they would stay out indefinitely. Richards asked Cornett if the reason had anything to do with Fred Caldwell's seniority or qualifications. Cornett stated no, and that there was no grievance at the mine other than the men refused to work with Caldwell. Richards told Cornett that the Employer could not fire Caldwell or run him off, that there was no choice except to file charger with the National Labor Relations Board. I conclude and find that by the foregoing actions of Cornett that Respondent Local No. 9606 violated Section 8 (b) (1) (A) of the Act. September 11, 1962, Stallard Contacts Bean 9 Herman Stallard, 10 who handled labor relations for Blue Diamond Coal Com- pany, telephoned C. E. Bean, Respondent District 30's president, and told him e The facts concerning the September 10, 1962, work stoppage are based on a c'im- posite of the credited testimony of Caldwell and Begley 7 The facts concerning Cornett's conversation with Forrest and Begley are based on a composite of the credited testimony of Forrest and Begley. "The facts concerning Cornett's conversation with Richards, Forrest, and Begley are based on a composite of the credited testimony of Richards , Forrest, and Begley The facts concerning 'Stallard's contact with Bean are based on a composite of the credited testimony of Richards, Stallard, and Bean. "Vice President Richards instructed Stallard to call Bean. UNITED MINE WORKERS OF AMERICA, ETC. 803 that Leatherwood No. 2 mine had struck on the second shift and asked him what he could do to get them back to work. Bean asked what the trouble was. Stallard related that the information he had was that the men refused to work with a man who had been recalled from the panel because he had belonged to another union. Bean stated that he would get in touch with Mr. Perkins or Mr. Filtner and send them up there and find out what the trouble was and try to get the men back to work. Bean telephoned William Perkins, International representative at Hazard, Ken- tucky, and asked him if he knew anything about the strike at Leatherwood No. 2. Perkins replied that he did not. Bean instructed Perkins to investigate and if they were (on strike), to call a meeting and get the men back to work. Bean told Perkins of his and Stallard's conversation and that if what Stallard had reported was the fact, the Local Union was wrong, they could not pursue that policy, and they would have to return to work.ii Events of September 11, 1962 12 Caldwell and employees Wilder and Jackson reported to work but no employees were working. Caldwell, Jackson, and Wilder stopped by Lum Cornett's (treasurer of Local No. 9606) home and asked if anything "got settled." The latter replied, "No, we never got nothing settled. There are a bunch of hotheads down there and you can't reason with them." Cornett told Caldwell, "If I was you, I would quit." Caldwell replied that he would quit if he had a reasonable job, but that he didn't have a job and couldn't quit. Cornett then said, "Boy, as long as we all stay out and nobody goes back to work, they can't do anything with us . . . they can't do nothing but fine the International. They've got the money to pay for it." I conclude and find that Respondent Local by its agent, Cornett, by the foregoing, violated Section 8 (b) (1) (A) of the Act. Around 7:30 p.m. on September 11, Caldwell received an anonymous telephone call in which a man told him that if he were Caldwell, he would not go to the call meeting (union) tomorrow, that a man called "Old Red Beard" almost was whipped for telling them that this was a ridiculous thing. Caldwell's sister told him of receiving an anonymous telephone call in which she was told to use any means that she could to keep him (Caldwell) from going to work 13 Stanley Jackson attended a call meeting of Local No. 9606 on September 12, 1962. The meeting was opened by Leroy Waters, vice president of the Local. Waters turned the meeting over to William (Bill) Perkins Perkins told the members that they should go back to work and to not lose work because of Fred Caldwell. Perkins told the members that they could take care of Fred Caldwell off company property. Perkins stated, "You can meet at the intersection or at the foot of the hill and give him a good whipping or something, that might help him." During the meeting one of the union members "got up" and said that Jackson had been hauling Fred (Caldwell) to work. Perkins asked if Jackson were there. Jackson answered that he was. Perkins then asked Jackson to stand up and asked if he had been hauling Caldwell to work. Jackson replied that he had. Perkins li Counsel for Respondent International asked Bean as follows: "Did you give him [Perkins] any advice that the Local could take where seniority was involved"" Bean answered in his testimony "that we must instruct them to handle the case under the pro- visions of the contract." The question as to seniority was a leading question. Inasmuch as at the time of Bean's instructions to Perkins he had only been apprised by Stallard that the men did not want to work with Caldwell because he had belonged to another union, I am sure that Bean's answer alluded to instructions of how to handle the problem set forth by Stallard. At that time there was no basis for a belief that seniority was an issue Perkins had professed to know nothing of the matter. To the extent that Bean's answer is susceptible of alluding to instructions concerning a seniority issue I do not credit it. "The facts concerning Caldwell's reporting to work, the anonymous telephone call, and the conversation with Cornett are based on the credited testimony of Caldwell 's The Respondent objected to the receipt in evidence of the testimony relating to tele- phone calls from unidentified persons. Inasmuch as such calls had a possible bearing on Caldwell's reason for cessation of work, I admitted the same Although such telephone calls were considered in determining the reason that Caldwell quit, I have not considered such evidence in support of a finding of union responsibility. 717-672-64-vol. 143-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him that he ought not to do that, that "you do have to work with him. You don't have to buddy-up with him." 14 I find that William Perkins' action at the September 12, 1962, union meeting, in connection with the presence of Local No. 9606 officials who made no disavowal of Perkins' action, constituted a joining of purpose of all Respondents for the actions taken after September 12 by the individual agents of respective Respondents, and for the actions of Local No. 9606 union members taken in accord with what was tantamount to instructions and directions from Perkins. Contrary to the General Counsel's contentions I do not find that Respondent District or Respondent Inter- national ratified the previous actions of Respondent Local. There is no evidence that Respondent International or Respondent District fined or did not fine the Local. It is clear that Respondent Local's actions taken prior to September 12 were taken without knowledge of Respondent District or Respondent International, and that the impetus and direction after September 12 changed from attempting to cause the Employer to discriminate to action directed directly toward Caldwell. I conclude and find that by Perkins' directions set forth above Respondents violated Section 8(b) (1) (A) of the Act. Insasmuch as Perkins' directions were toward action directly toward Caldwell and off company property, except for the instructions not to "buddy-up," I cannot see an attempt to cause or attempt to cause the Employer to discriminate. Jackson's Reports Concerning the September 12 Union Meeting 15 Jackson went by Caldwell's house and told Mrs. Caldwell to try to get Caldwell not to go back to work. Caldwell's wife told Caldwell that Stanley Jackson had told her to attempt to keep him from going to work as they would kill him if he did go to work. Caldwell testified that people had come to him and that Bill Perkins had told the men "to get rid of me in other ways," that there were ways to get rid of him (Caldwell), by breaking his leg or arm. The only person he identified (other than his wife or sister), as to telling him of making such statements was Stanley Jackson. After Mrs. Caldwell related Jackson's conversation to Caldwell, Caldwell called Jackson and asked if he (Jackson) were going to work. Jackson told him that he was, but that he couldn't haul him (Caldwell). Jackson stated that "they" had told him that if he hauled Caldwell he would be whipped. Caldwell later asked employee John Wilder if Jackson had been told this. Wilder replied that he had. Jackson also had told Caldwell that a man called "Old Red Beard" walked up to him and stated, "Stanley, I'm trying to live right, trying to be a Christian, but if `Old Red Beard' gets started he could do some fighting." Jackson told Caldwell that he was afraid he would probably get hurt if he came back over there; the men would work with him, but didn't want to. Caldwell stated, "Hell, I'm going over there. I ain't afraid of any damn one of them . .. . By God, I'll take some of them with me . .. 16 Caldwell reported late to work on September 12, 1962. The mine had already commenced work. Caldwell told Superintendent Forrest of the telephone calls and of Jackson's conversation with his wife, and that his wife had tried to stop him from coming to work by hiding his cap, belt, and hard shoes. Forrest told Caldwell to 1* The facts concerning the union meeting are based on the credited testimony of Jackson I do not credit Perkins' testimony which is contradictory of Jackson's testimony. Jackson impressed me as a very truthful witness, and appeared a more credible witness than Perkins Nor in a related connection do I credit Perkins' testimony to the effect that the Local Union officials had told him that the dispute was over seniority. In my evaluation and credibility determination I have not considered as adverse the evidence relating to Perkins' having pleaded guilty to a violation of criminal contempt of a restraining order in a labor dispute in 1959 . Considering his plea of guilty and his credible explanation of the facts connected with said violation, I am convinced that such evidence of criminal contempt in no way adversely affects his credibility u The facts concerning Jackson's visit to Caldwell's house and his conversation with Mrs Caldwell, and Mrs Caldwell' s relation of the same to Caldwell, to Caldwell's con- versations with Jackson and Wilder, to Caldwell's conversation with Forrest, and to the unidentified caller's conversation with Caldwell, are based on a composite of Caldwell's and Jackson's credited testimony. 19 Jackson credibly testified that several days after September 13 (when Caldwell ceased working) -Caldwell stated that his family did not want him to go back to work, that they had kind of made him scared now, that he was going to quit and go to some construction company and work. UNITED MINE WORKERS OF AMERICA, ETC. 805 suit himself as to whether he wanted to work or not. Caldwell returned home without working that day. Caldwell received a telephone call from an unidentified man on the night of September 12. The caller stated that he had seen Johnny Perkins and that some- body had said that Johnny Perkins had said that he was going to get Caldwell at the mines if he (Caldwell) had been working. The caller also told Caldwell that Bill Perkins had told the men in the hall that day to go back to work, that there were ways of getting rid of him (Caldwell) besides striking against him. Caldwell asked who the caller was, and the latter stated that he was afraid to tell him, because Bill Perkins said that if any man in this hall told this outside the hall, he would take care of him personally. C. E. Bean, Respondent District's president credibly testified that William Perkins, Respondent International's representative, later reported to Bean that the men had gone back to work at Leatherwood No. 2, that the trouble, according to the local officers, was that a younger man had been called back to work and the older men were disturbed about it. On cross-examination Bean testified that Perkins also told him that the men had told management that they did not want to work with Caldwell.17 Events of September 13, 1962 18 Caldwell credibly testified that he was afraid 19 to go to work but reported to work on the afternoon of September 13, 1962. Caldwell got in the man-trip vehicle. The other men, who normally rode in the man-trip vehicle into the mines, entered an open tool car that is attached to the man-trip vehicle. Supplies are usually loaded in the tool car. Foreman Begley told the section boss to get the men inside the man- trip (vehicle). Caldwell was in the front section (of three sections) of the man-trip. The section boss was in the middle section of the man-trip. The other employees got in the back and middle section ultimately leaving Caldwell and the section boss in the front section of the man-trip. In this fashion the employees rode into the mines on the man-trip. Although Caldwell worked until 3:30 a.m. none of the other employees spoke to him at any time. The machine he was working on broke down and he was assigned extra work. At 3:30 a.m. the third shift mine foreman, Damon Farmer, came to Caldwell and told him that he was letting him off a half-hour early. Caldwell left and went home. Events of September 14, 1962 20 On the morning of September 14, 1962, Caldwell received another call from an unidentified person. The caller asked Caldwell how he came home. Caldwell told the caller that he came by No. 1. The caller said that it probably was a good thing, that there was a car sitting on Jewell Ridge with the lights showing across the high- way. The caller further stated that the first person he thought of was Caldwell. Caldwell credibly testified that he did not go back to work at Respondent's Leatherwood Mine No. 2 because he was afraid to return to work Concluding Analysis The Respondents contend that the dispute over Caldwell involved a seniority issue, and that they did not cause his termination 21 I find no merit to either defense. 17 Although I credit Bean in his testimony to the above effect, I am convinced from his testimony that the full report by Perkins was not testified to as revealed by the evidence as a whole that the older (union) men were disturbed by the younger man (Caldwell) being recalled to work when he had worked at Blair Fork Mine, and had belonged to the Southern Labor Union. "The facts concerning the events of September 13, 1962, are based on a composite of the credited testimony of Caldwell and Begley. 10 Although Jackson testified that Caldwell had stated that he was not afraid of them, in view of the overall evidence I am convinced that this was a normal statement made only possibly to reassure himself. 20 The facts concerning the events of September 14 are based on the credited testimony of Caldwell. 21 Although not plead in their answer, Respondents appear also to have injected some idea that the validity of Caldwell's membership constituted an issue. Since it is clear that Caldwell's termination did not result from a union request for his discharge pursuant to a lawful union-security clause, and since Respondents' alleged defenses on seniority and "non causation" are contradictory thereof, and since, as later indicated, the Respond- ents' motivation is revealed to have been Caldwell's working at Blair Fork Mine and hav- ing belonged to the Southern Labor Union, I reject such possible defense. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondents' evidence pertaining to the seniority issue lies primarily on the testimony of Perkins, Bean, and Napier, and as to the contention that the Blue Diamond Coal Company had recalled Caldwell while not recalling employees with more seniority that Caldwell. The Seniority Panel King credibly testified that on August 23, 1962, he sent out recall letters to all employees on the "active panel." There is no evidence to reveal that employees (entitled to be on the active panel) did not receive such recall letter. The Re- spondents' contention was that employees Asher, Griffith, and Pease were senior to Caldwell. Begley's credited testimony reveals that employee Griffith reported to work, and was hired, in August 1962. King's credited testimony was to the effect that Pease either received a letter of recall in August, or a letter eliminating him from the "active panel" for not being available for work in July 1963. Begley credibly testified that Pease had reported in July that he had another job and prob- ably would not report to work. Pease did not report to work. A man lower than Pease on the seniority list had been hired in the July recall. Under the prac- tice, according to the credited testimony of Begley, if a person did not report back to work, and if a person lower on the seniority list were hired, the former was taken off the list. Neither Pease, Asher, nor Griffith testified. I find no reason to believe, in accordance with King's credited testimony, that any entitled to be on the active panel list did not receive the August 23, 1962, recall letter. Assuming Perkins' testimony to the effect that Local union officials told him that the Caldwell dispute was over seniority, and that he so relayed the informa- tion to Bean,22 to be true, the statements of officials of Respondent Local 9606 to Perkins and Perkins' statements to Bean do not constitute proof of what the reasons were. I find more convincing the statements made by the Respondent Local 9606's officials to Caldwell on September 8, 1962, to the effect that had he worked at the Purity or other mines and not at Blair Fork Mine the Union could take care of the situations, and that since he had worked at Blair Fork Mine that there was nothing that could be done, that the men were not going to work with him. I also find convincing the fact that Respondent Local Union No. 9606's treasurer, Cornett, told Richards that seniority and qualifications were not the reason, that the men were not going to work with Caldwell. Rather I am convinced that the seniority issue is a pretextuous one decided upon after the events of September 8 through 13 had occurred. It is noted that Bean had instructed Perkins to get the men back to work if the reason for the strike (because Caldwell belonged to another union) was as asserted by Stallard. At the meeting on September 12, Perkins so instructed Respondent Local No 9606 and its members to return to work. I do not find credited evidence to reveal that the seniority rights of Asher, Griffith, or Pease were considered by the Respondents with respect to the Caldwell problem. In fact, such argument. with reference to Griffith, who was hired and reported to work in August, in my opinion, is persuasive of the pretextuous nature of the seniority issue.23 Caldwell, when questioned as to the basis of his fear, first referred to the uniden- tified caller's conversation of September 14, and later referred to the various tele- phone calls that he and his family had received, to Jackson's statements as to what Perkins had said, and to his family's fears, and he indicated that his fellow em- ployees' turning their backs on him on September 13 made him feel funny, as if he were a criminal or "some disgrace " I could not discern that he placed any significance on the fact that the Employer had sent him home half an hour early with pay. He testified that his job was caught up and that under such circumstances in the past he had been sent home early. I find no basis in the evidence to reveal that the Employer's actions in any way contributed to Caldwell's decision not to return to work Carefully considering his testimony as the cause of his fear, and all the circumstances of this case, I am convinced that his fear was based upon a mixed consideration of substantial factors directly traceable to Respondents, and of substantial factors legally not traceable to Respondents. There is nothing in the record to indicate that Caldwell would have had any fear of reporting to or from work whatsoever excepting for the Re- spondents' animosity, and their actions in support thereof. I find, therefore, that 22 Perkins did not testify to what he reported to Bean. Bean testified that Perkne re- ported in effect that the older men were disturbed because a younger man had been recalled 23 Napier, who testified for Respondent, and who worked at the mince, testified that he only heard of the seniority issue after Caldwell had left Blue Diamond Coal Company's employment UNITED MINE WORKERS OF AMERICA, ETC. 807 the Respondents' actions were the contributing factor which caused Caldwell to cease reporting to work at Blue Diamond Coal Company on September 14 and thereafter. By virtue of William Perkins' 24 actions at the September 12, 1962, Respondent Local union meeting, and in the presence of Respondent Local officials without dis- avowal thereof, in directing employees as to how to get rid of Caldwell by whipping him, by telling employees in effect to shun him, I find Respondents jointly violated Section 8(b) (1) (A) of the Act. Although I have found that Respondent Local No. 9606 violated Section 8(b) (1) (A) and (2) of the Act by virtue of its actions in contacting the Company prior to September 12 in its effort to cause the termination of Caldwell's employment, I do not see that the evidence establishes that Respondents' actions after Septem- ber 12 were directed toward causing the Company to discriminate. Perkins' di- rections at the September 12 union meeting and Respondents' actions thereafter were .directed at action straight toward Caldwell and not through the Company. I do not see that the evidence establishes that Respondent District or Respondent Inter- national attempted to cause the Employer to discriminate against Caldwell. Nor do I see that the evidence establishes that Respondents caused the Employer to dis- criminate against Caldwell. Thus I cannot and do not find that Caldwell's cessa- tion of employment constituted a violation of Section 8(b) (2) of the Act. The General Counsel argues that the instant situation warrants a remedy includ- ing a backpay award. He submits no cases supporting the award of backpay in ,connection with an 8(b) (1) (A) violation, but argues that since backpay is some- times ordered in 8(a) (1) violation-type cases, it is analogous to the award of backpay in an 8(b) (1) (A) type case. If this is his theory, his theory is based upon a misconception of the controlling case law. The Board has previously deter- mined that it has not been granted power by Congress to award backpay in situa- tions substantially similar to the instant one. As I interpret the controlling Board decisions, backpay in an 8(b)(1)(A) or (2) situation can be awarded only if the Respondent labor organization caused the employer to discriminate against the em- ployee. 25 If the General Counsel is seeking to have the Board reconsider its prior decisions in the Local 983 and Colonial Hardwood cases,26 he has not set forth any basis for distinction between such cases, nor has he set forth a rationale for recon- sideration directed toward the Board's reasoning in such cases. Such distinction as may exist between the instant matter and the Local 983 case, in my opinion weakens the argument for a backpay remedy in this case. In the Local 983 case the threats were that physical injury would occur to the employee on the job, in the instant case the threats were that physical injury would occur away from the job. The Trial Examiner in the Local 983 case, with reference to a backpay remedy for the employee who did not continue to work because of fear of the Union's threats -directed to him, and not because of caused employee discrimination, stated, "As appealing as the situation is for granting such remedy here, I am nevertheless con- strained to deny such relief, absent a finding of caused discrimination. On the authority of United Furniture Workers of America, CIO (Colonial Hardwood Flooring Company, Inc.), 84 NLRB 563, 565 ...." The Board affirmed the Trial Examiner in this respect on the basis of its reasoning in the Colonial Hardwood case. I am bound by the Board's decision to the effect that Congress has not granted it the power to award backpay in situations such as the instant case I conclude and find that the awarding of backpay in this matter is not permitted by the Act. " Admitted in Respondents' answers to be an agent for Respondent District and Re- spondent International. ^ Local 983, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. (0 W Burke Company), 115 NLRB 1123 The Local 983 case involved a situation wherein the Respondent Union threatened the employee that he would receive physical injury on the job if he continued to report to work. The employee, because of such threat, ceased reporting to work The Board refused to fasbi on a backpay remedy on the basis 'of Colonial Hardwood Flooring Company, Inc., 84 NLRB 563, wherein it had originally set forth its interpretation that Congress had limited its remedial power to so order backpay in such a situation Cf. dissenting opinion of Reynolds in United Mine Workers of America, et al. (West Kentucky Company, et al), 92 'NLRB 916 at p 920 if. A Trial Examiner cannot properly consider a dissenting opinion as controlling over the majority opinion. 11 Supra. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of the Employer described in section I, 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 Respondents have engaged in and are engaging in certain unfair labor practices, it shall be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Local has violated Section 8(b) (2) and (1) (A) of the Act by attempting to cause the discharge of Fred Caldwell, it will be recom- mended that Respondent Local No. 9606 cease objection to the employment by the Employer of Caldwell, and notify the Employer and Caldwell to that effect. In view of the nature of the unfair labor practices committed, the commission by the Respondents of similar and other unfair labor practices may be anticipated. It shall therefore be recommended that the Respondents cease and desist from restrain- ing or coercing in any manner upon the rights guaranteed by Section 7 of the Act. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America and District 30, United Mine Workers of America, and Local No. 9606, United Mine Workers of America, are labor or- ganizations within the meaning of Section 2(6) and (7) of the Act. 3. The Southern Labor Union and its Local Union 146 are labor organizations within the meaning of Section 2(6) and (7) of the Act. 4. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. By attempting to cause the Employer to discharge Fred Caldwell, Respondent Local No. 9606 violated Section 8 (b)(2) and (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 7. The evidence does not establish that Respondent International or Respondent District have violated Section 8 (b) (2) of the Act. RECOMMENDED ORDER 27 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case , it is recommended 28 that: A. Respondent Local No. 9606, United Mine Workers of America, its officers, agents, representatives , successors , and assigns, shall: 1. Cease and desist from: (a) Attempting to cause Blue Diamond Coal Company or any other employer, as defined in the Act, within the geographical limits of the jurisdiction of Local No. 9606, United Mine Workers of America, to discriminate against Fred Caldwell, or any other employee, beacuse of their exercise of rights guaranteed to them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Threatening physical injury to, or in any other manner restraining or coercing, Fred Caldwell, or any other employee of Blue Diamond Coal Company, or any other employer, as defined in the Act, within the geographical limits of the juris- diction of District 30, United Mine Workers of America, in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment , as authorized in Section 8(a)(3) of the National Labor Rela- ^ In the event that this Recommended Order be adopted by the Board , the word "Order" shall be deemed substituted for the words "Recommended Order " 28 In the event that this Recommended Order be adopted by the Board, the word "ordered " shall be deemed substituted for the word "recommended." UNITED MINE WORKERS OF AMERICA, ETC. 809 tions Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Advise Blue Diamond Coal Company and Fred Caldwell that Respondent Local No. 9606, United Mine Workers of America, has no objection to the em- ployment of Fred Caldwell or of any other employee because of their membership in, activities, or sympathies on behalf of, Southern Labor Union or its Local Union 146. (b) Post at its respective office and meeting hall copies of the attached notice marked "Appendix A." 29 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by a representative of Respondent Local No. 9606, United Mine Workers of America, be posted im- mediately upon receipt thereof, and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to their respec- tive members are customarily posted. Reasonable steps shall be taken by Re- spondent Local No. 9606, United Mine Workers of America, to insure that said notice is not altered, defaced, or covered by any other material. (c) Sign, as aforesaid, and mail sufficient copies of the said notice to the Regional Director for the Ninth Region, for posting, the Employer, Blue Diamond Coal Com- pany, being willing, at mines involved in this proceeding in the places thereat where notices, bulletins, or communications to the employees of said mines are customarily posted. Such copies of the notice shall be furnished Local No. 9606, United Mine Workers of America, by the said Regional Director. (d) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the date of this Recommended Order, what steps the Respondent, Local No. 9606, United Mine Workers of America, has taken to comply herewith.30 B. Respondents, United Mine Workers of America, and United Mine Workers of America, District 30, their officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from threatening physical injury or in any other manner re- straining or coercing Fred Caldwell, or any other employee of Blue Diamond Coal Company, or any other employer, as defined in the Act, within the geographical limits of the jurisdiction of District 30, United Mine Workers of America, in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post in conspicuous places in the business offices of District 30, United Mine Workers of America, where notices and communications to members are customarily posted, copies of the attached notice marked "Appendix B." 31 Copies of the notice to be furnished by the Regional Director of the Ninth Region, shall, after being signed by official representatives of United Mine Workers of America, and of Dis- trict 30, United Mine Workers of America, be posted and maintained for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by District 30, United Mine Workers of America, and United Mine Workers of America, 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 to the Regional Director for the Ninth Region, for posting, the Employer, Blue Diamond Coal Com- 29 In the event that this Recommended Order be adopted by the Board, the word's "A De- cision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order " 80 In the event that this Recommended Order be adopted by the Board, ithi^s provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 31 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order " 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany, being willing, at mines involved in this proceeding in the places thereat where notices, bulletins, or communications to the employees of said mines are customarily posted. Such copies of the notice shall be furnished Respondents District 30, United Mine Workers of America, by the said Regional Director. (c) Sign as aforesaid, and forward to Local No. 9606, United Mine Workers of America, a copy of the attached notice marked "Appendix B," with accompanying instructions directing and ordering the proper officers of the Local to post and maintain same for a period of 60 consecutive days thereafter, at their office and meeting hall, or places of said Local, in the place thereat where notices, bulletins, and communications to the members are customarily posted. Copies of the notice for such purpose shall be furnished Respondents District 30, United Mine Workers of America, and United Mine Workers of America, by the said Regional Director. (d) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the date of this Recommended Order, what steps the Respondents District 30, United Mine Workers of America, and United Mine Workers of America, have taken to comply herewith.32 It is recommended that the complaint be dismissed insofar as it alleges violations of Section 8(b)(2) by Respondent United Mines Workers of America and by Re- spondent District 30, United Mine Workers of America. 3' In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents, District 30, United Mine Workers of America, and United Mine Workers of America , have taken to comply herewith " APPENDIX A NOTICE Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT attempt to cause Blue Diamond Coal Company or any other employer, as defined in the Act, within the geographical limits of the jurisdic- tion of Local No. 9606, United Mine Workers of America, to discriminate against Fred Caldwell, or any other employees, because of their exercise of rights guaranteed to them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT threaten physical injury to, or in any other manner restrain or coerce Fred Caldwell, or any other employee of Blue Diamond Coal Com- pany, or any other employer, as defined in the Act, within the geographical limits of the jurisdiction of District 30, United Mine Workers of America, in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE have no objection to the employment of Fred Caldwell, or to any other employee, because of their membership in, activities, or sympathies on behalf of, Southern Labor Union or its Local Union 146. We have given Blue Dia- mond Coal Company notice to this effect. LOCAL No. 9606, UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. ELLIOTT-WILLIAMS CO., INC. 811 APPENDIX B NoTlca Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT threaten physical injury to, or in any other manner restrain or coerce, Fred Caldwell, or any other employee of Blue Diamond Coal Com- pany or any other employer , as defined in the Act , within the geographical limits of the jurisdiction of District 30, United Mine Workers of America, in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. DISTRICT 30, UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati , Ohio, 45202, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Elliott-Williams Co., Inc. and Sheet Metal Workers' Interna- tional Association, Local 503, AFL-CIO. Case No. 25-CA-1657.. July 34, 1963 DECISION AND ORDER On April 16, 1963, Henry S. Salim issued his Intermediate Report, in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Re- port 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 [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediater Report, the exceptions and brief, and the entire record in the case,, 143 NLRB No. 86.