United Mine Workers of America, Local 7083

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of salary or pay suffered as a result of the discrimination against them. All our employees are free to become, to remain, or to refrain from becoming or remaining, members of a labor organization of their own choosing. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Employer. 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, 746 Fed- eral Office Building, 167 North Main Street , Memphis, Tennessee , Telephone No. 534-3161 , if they have any question concerning this notice or compliance with its provisions. United Mine Workers of America, Local No. 7083 [Grundy Min- ing Company] and Southern Labor Union . Case No. 10-CB- 1401. February 27, 1964 DECISION AND ORDER On October 25, 1963, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above case, finding that the Respondent had en- gaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in his attached Decision. Thereafter, the Respondent filed exceptions to the Decision 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 Fanning, Brown, and Jenkins]. The Board has reveiwed 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 Decision of the Trial Examiner and the entire record in this case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Trial Examiner's Recommended Order with the amendment noted below.' ' The Recommended Order is hereby amended by substituting for the first paragraph therein, the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Mine Workers of America, Local No. 7083, Its officers, agents, and representatives , shall: 146 NLRB No. 20. UNITED MINE WORKERS OF AMERICA, LOCAL 7083 177 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon an amended charge filed May 29, 1963, by Southern Labor Union, the General Counsel of the National Labor Relations Board, through the Regional Director for the Tenth Region, on June 10, 1963, issued a complaint against Re- spondent, United Mine Workers of America, Local No. 7083, alleging that on or about May 7, 1963, Respondent prevented employees of Grundy Mining Company (herein called Grundy) from reporting to work at its minesite at Tracy City, Ten- nessee, by massing at the access thereto and by committing and threatening to commit violence upon Grundy employees, in violation of Sections 8(b)(1)(A) and 2(6) and (7) of the National Labor Relations Act, as amended (herein called the Act). Respondent denied these allegations, resulting in issues litigated at a hearing before Trial Examiner Stanley.N. Ohlbaum in Chattanooga, Tennessee, on August 6 and 7, 1963, at which all parties participated fully through counsel, who also subsequently submitted briefs. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER It is alleged, admitted, and found that Tennessee Consolidated Coal Company (herein called Consolidated ), a Delaware corporation, has an office and place of business in Tracy City, Tennessee , where it is engaged in mining, processing, and selling coal , and that during the 12 months preceding the complaint , a representa- tive period, it-sold and shipped products valued in excess of $1,000,000 to places outside of Tennessee ; that Grundy, a wholly owned Tennessee corporate subsidiary of Consolidated, also maintaining its office and place of business at Tracy City and engaged in mining coal during said representative 12-month period, sold coal valued in excess of $300,000 to Consolidated ; and that at all times material herein Grundy has been and is engaged in commerce within ,the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is alleged, admitted, and found that at all times material herein Respondent, United Mine Workers of America, Local No. 7083, has been and is a labor organiza- tion within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts 1. The locale At all times material herein Grundy has operated coal mines (herein called minesite) in an area near Whitwell, not far from Chattanooga, Tennessee, known as Gray's Creek and The Pocket. The uncontradicted evidence shows, and I find, that the only feasible means of access to the minesite is as follows: Traveling ap- proximately north from Whitwell (or south from Palmer), Tennessee, on two- lane Route 108 a road is reached which leads off Route 108 approximately south- west. That Toad is called "Pocket Road," and the point where it leads off Route 108 will be referred to herein as Pocket Intersection. From Pocket Intersection, Pocket Road (approximately 30 to 40 feet wide) runs approximately southwest until it bifurcates into (1) a road (a continuation of Pocket Road) running ap- proximately south to The Pocket and (2) Gray's Creek Road (also known as the access road) which leads to the minesite. The minesite is approximately 21/2 to 3 miles southwesterly of Pocket Intersection.' It was at and immediately around Pocket Intersection that the events here material occurred. 2. The events of May 7, 1963 At approximately 6:15 a.m. on May 7, 1963, a group of Grundy employees as- sembled at Sitz Service Station, located on Route 108 about one-half mile south of Pocket Intersection. In accordance with their usual practice since December I General Counsel's Exhibit No 2, traced from an official Federal map, is a reasonably accurate scale representation of the area road network. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1962, when United Mine Workers ceased supplying mineworkers in the area, which had previously been operated by a predecessor of Grundy, on the morning in ques- tion, these Grundy workers formed themselves into a vehicular convoy in order to proceed to work at the minesite. The convoy consisted of some 30 to 35 vehicles, with the lead vehicle that of Grundy Mine Superintendent Gene Poor. Unlike other times, however, when Poor's lead vehicle was a readily distinguishable green panel truck, on this occasion Poor drove an ordinary passenger car. Some of the occu- pants of the vehicles comprising the convoy were armed with a variety of small arms, but the uncontradicted evidence shows, and I find, that at no time was any weapon of any nature, in any manner, employed or displayed by any member of the convoy or, in any manner, visible to any person not in the convoy, throughout the occasion involved in this proceeding. After the convoy was thus formed, it proceeded northerly along Route 108. When it reached Pocket Intersection, at around 6:30 a.m., approximately 200 to 250 men 2 were congregated in and immediately around Pocket Intersection, both on Route 108 and on Pocket Road, with the heaviest concentration on Pocket Road. It is not disputed that many of this group were members of Respondent, while others were members of sister Local 5881 of United Mine Workers, whose miners had also worked in the area. According to the testimony of Respondent's witnesses, these miners-of both locals-had attended a meeting about 6 a.m. that morning at their union hall, located on the west side of Route 108, approximately 100 to 150 feet north of Pocket Intersection. One of the Respondent's witnesses testified that the purpose of the meeting was that: we had been told that, they were returning to work and they had quite a few members that they talked to that they wanted them to not return to work if we could persuade them not to. Clifford Tate, who was Respondent's treasurer at the time, testified that the purpose of the meeting was to: . get with the men . .. to keep a lot of them from changing over and going to work. _.. . Asked what was discussed at the meeting on the date and at the time in question, just preceding the events with which we are here concerned, Respondent's President Harvey Howell first asked, "Am I suppose to tell what we have in our meetings," but then testified that among the subjects discussed "pro and con" was a court injunc- tion against them which: We didn't think it was fair from [sic] us to be enjoined from being there on our own property. And, likewise on the subject of the occasion or topic of the meeting, Respondent's witness Ross (a member of the other United Mine Workers local at that meeting) testified: Well, all them companies had been band[ed] together and was trying to force us to take a reduction in wages and wouldn't recognize the union and I just went up there-they had circulated too that they was gonna open that mine. According to the testimony of Respondent's witness and treasurer at the time, Clifford Tate, after the early morning meeting at the union hall, he and the others proceeded to Pocket Intersection for the avowed purpose of awaiting the arrival of the convoy to identify its members, to facilitate which he took up a vantage point on a large rock there. It is undisputed that when the passenger car utilized on this occasion by Grundy Mine Superintendent Poor approached Pocket Intersection, it turned in there and was able to proceed unhindered down Pocket Road. From here on, however, the testi- mony offered by both sides is in sharp conflict. According to General Counsel's witnesses, after Poor's passenger car 3 turned into Pocket Road, the large, surging mob of men completely blocked and sealed off 2 Testimonial estimates as to the size of the group range from 200 to 300 ( General Counsel's witnesses ), to 75 to perhaps 200 (Respondent 's witnesses ). The preponderance of the credible testimony indicates the size of the group to have been approximately 200 or more. 3 It will be recalled that Poor on other occasions utilized a readily identifiable green panel truck as the lead convoy vehicle-a fact with which Respondent 's members were presumably acquainted, since they acknowledged familiarity with the composition, travel characteristics, and habits of the convoy. UNITED MINE WORKERS OF AMERICA, LOCAL 7083 179 that road, for practical purposes precluding travel thereon and, therefore, access to the minesite where they worked. These witnesses testified that the second convoy vehicle, driven by John Higgins, was unable to proceed down Pocket Road, since Pocket Intersection and Pocket Road to a distance of about 50 or 75 feet was "completely blocked off" by about 300 men "hollering and squalling and whooping and cussing and doing most anything," and who "threatened and cussed" John Higgins and told him: ... that they'd been fooling with him long enough, to get out of there they were going to kill every one of the damn son-of-a-bitches. Since he could not get through, John Higgins, according to these witnesses, turned his vehicle around and went back; but, in the excitement and mob scene, Grundy Mine Foreman Howard Higgins, who was driving a pickup truck behind the John Higgins vehicle, raced his truck through the mob, temporarily scattering it, and was thus able to proceed down Pocket Road, not, however, without being cursed, stoned, and even shot at and struck several times by small-arms fire from a gun observed by several witnesses to be held and fired by miner John Hicks, one of the members of the mob blocking the road. These witnesses' testimony further showed that some of .the men in the mob which was stretched clear across and down Pocket Road, completely blocking it as "just a human barricade," were observed to be carrying stones. Their testimony also indicated that, although "That is the only way we could get there [i.e., to work at the minesite on other days] was to force our way through by convoy," because of the tremendous number of men present and totally blocking the road and access to the minesite on the morning in question, as well as the shooting, they could not get to work that day. As stated by one of them (McHone): after the shooting and all that mass of men mobbed- in there I knew there was no use in me even trying to go through so I turned at the Shell Station [at "Pocket Intersection"] and went back to the Sitz station where we assembled the men that morning. Another witness (Green) testified that some of the mob motioned the convoy back, stating there was no work that day. The foregoing account of what transpired at Pocket Intersection in the early morning of May 7, 1963, differs considerably from the version put forward by Respondent's witnesses, who testified essentially that, although they were present there in considerable, numbers, they were peaceably and quietly lined up in orderly fashion along the sides of-the roads, without at any time, in any way, blocking or impeding passage on, or access to, the roads; and that, for some inexplicable reason, the convoy vehicles (other than those few described) simply turned around and went back that morning without going down Pocket Road which was clear for them to travel along if they wished to do so. Respondent conceded that at the scene- pictured by the Charging Party as one of turbulence, and by Respondent as one of serenity-was a single, solitary, orderly picket, in no way impeding traffic, carrying a sign, "One-man picket line, authorized by the Court," who according to Respond- ent "stepped over to let the cars go by." Faced with this irreconcilable conflict in testimony, for a number of reasons I find it impossible to accept Respondent's version. To begin with, of course, I necessarily formed impressions as to the credibility of these witnesses based upon close observation of their testimonial demeanor at the hearing, and my evaluation of the evidence offered by both sides is necessarily made within the frame of reference of these impressions conveyed to me at, the hearing. The testimony of Respondent's witnesses, designed to convey the impression of a large but thoroughly orderly formation of silent miners with tearoom, manners neatly arranged on the roadsides in the Tennessee mine country in the early hours of the morning, all intent only on checking the membership of a convoy with which they were con- cededly familiar, defies belief, at least mine. And, aside from the basic in- credibility of the picture attempted to be portrayed, the testimony of these witnesses is. itself punctuated with inconsistency, internal contradiction, and what I am com- pelled to regard as deliberate vagueness and lack of candor. For example, Earl Borne, Respondent's vice president, called by General Counsel as a hostile witness and testifying as such under Rule 43 (b) of the Federal Rules of Civil Procedure, after first trying to convey the impression that his work at Respondent's union hall, located 100 to 150 feet north of Pocket Intersection, did not take him away from the union hall, except possibly to stand "right outside the door" when the convoy came up, later conceded: "I walked around in that area all the time I was there . . . 100 feet or more, both ways. That's on both sides of the union hall," and sub- sequently, even more specifically, "probably 100 feet" south of the union hall- 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i.e., close to, if not at, Pocket Intersection itself. He conceded that he knew this convoy turned into Pocket Intersection each morning at about 6:30. He admitted that he had been informed, at about 7:15 on the morning in question, by the sheriff that the Howard Higgins truck had been struck by gunfire .4 I was similarly unfavor- ably impressed with the testimony of Respondent's president, Harvey Howell, whom I could not believe when he insisted that he knew nothing of what was going on outside of Respondent's union hall that morning until after the described events were all over and he was visited by the sheriff with a newspaperman, and that he did not leave the union hall until after 8 a.m.5 It is inconceivable to me that during this noisy and explosive fracas going on outside, Respondent's president heard nothing, was told nothing, and knew nothing, but throughout the entire situation- and, indeed, for some time after it was all over, until arrival of the sheriff and the newsman-he was immersed in the scholarly pursuits of bookkeeping and dues collection. I was also unfavorably impressed by his lack of candor in describing the purpose of the 6 a.m. membership meeting as being "to keep .the membership advised of all these false rumors [sic] and so forth." His denial that he knew about the convoy before the sheriff came in also does not square with the testimony of his colleague, George Tate, who swore that at the meeting that morning, which Howell conceded he conducted, there was discussion about the coming convoy. So far as the testimony of George Tate, Respondent's pensioner who apparently still takes an active part in his union's activities, is concerned, I am persuaded to regard its quality as poor in view of his clearly incorrect initial (changed later) insistence that no vehicle preceding that of John Higgins went down Pocket Road, his contra- dictory equivocations as to the presence or absence of so much as a single individual on Route 108 or Pocket Road, and his insistence that the John Higgins vehicle approached a road completely open and unblocked and simply turned around and went back, which I find wholly unworthy of belief. Similarly, I regard as unworthy of belief the testimony of Respondent's financial secretary, Bryan Parmley, who stated that on the explosive occasion in question he was summoned from the union hall to the outside for a reason he could not recall but which he believed was some- thing "concerning a transfer card"; and that, although he saw 100 or more men "back and forth" on both sides of Route 108 and of Pocket Road at Pocket Inter- section, as he said "scattered all around," he at no time saw anybody "standing" in the roads; since it is beyond belief that these men could be "back and forth" and "scattered all around" without any movement whatsoever on or across the roads .6 For reasons already expressed in regard to the testimony of Respondent's other witnesses, I also cannot credit the testimony of its former treasurer, Clifford Tate, to the effect that he observed no men on Pocket Road, but only on the roadsides, that the John Higgins vehicle inexplicably just turned around instead of going down Pocket Road, and that the Howard Higgins vehicle proceeded down Pocket Road without incident (in the face of the established shooting affray and bullets fired into that car). The testimony of this witness-as well as other witnesses of Respondent who testified as to the purpose of the early morning meeting at the union hall, where there were voiced expressions of resentment and rancor at the lack of success of their strike and what they regarded as an unfair injunction-and the ensuing large group processional to await the coming of the convoy, lends additional credence to the events which followed as described by the members of the convoy, since this total picture does not suggest a climate calculated to encourage peace but suggests, rather, a group of aggrieved men spoiling for an encounter of the kind which ensued. For similar reasons, I am impelled to reject the testimony of Respond- ent's witnesses Nunley and Ross that there was no impediment to free flow and * I reject as preposterously speculative any possibility that the Howard Higgins vehicle was shot other than by bullets from the pistol fired by John Hicks, who was clearly identi- fied by several eyewitnesses whom I believe, to have fired those shots. Hicks was not produced. 5 This witness appeared to equivocate on this point in his concluding testimony, wherein he stated that he did not "think" be was informed about the activities going on outside until the arrival of the sheriff. 9 This witness appears to have realized the absurdity of his earlier testimony that "I didn't -see any men on the roads," since when he was later asked the question, "Is it your testimony you did not see a single man on either route, 108 or on Pocket Road, that morn- ing?" he replied, "Back and forth but as far as standing I didn't see nobody standing on the highway but I seen cross back and forth," and also stated, "I wasn't paying too much attention," and "There was quite a few people moving aback and forth all around " Per- haps this witness merely intended to state that he did not observe a solid and immobile mass, but it is not suggested that the hostile, surging mob described was frozen into immobile stupor or catatonic stance. It was nevertheless an effective barricade to passage. UNITED MINE WORKERS OF AMERICA, LOCAL 7083 181 passage of traffic across the roads in question and that the convoy simply turned around and went back; while noting that these witnesses conceded that there was a good deal of motion and movement on and across these roads by the group, as one of them expressed it, "they was a-crossing, backwards and forwards I seen them." These, then, are the reasons why I reject the version of Respondent's witnesses as to what took place at Pocket Intersection on the morning of May 7, 1963, and why I accept, and believe in preference thereto, the account of General Counsel's witnesses to the effect, and find, that Pocket Intersection was on that morning, sub- stantially as described by them, completely blocked and sealed off by Respondent and its members and others acting in concert with them, to the passage of the vehicles of the convoy and members thereof, comprising Grundy employees seeking to go to work at the minesite. B. Conclusions 1. Union responsibility a. Mob action There is no doubt that violent and disorderly acts of the nature described and here found, by an unruly mob of union members and officials, preventing employees from going to work, are coercive and unlawful under Section 8(b) (1) of the Act.'i However, in addition to denying that any roads were blocked, and therefore that there was any impediment to free and unrestricted access to the minesite, or that any shooting or other violent, improper, or coercive acts as described took place on the occasion, Respondent has raised a number of reasons why as a matter of law, in its view, it should not be held responsible for such acts even if (as here found) they did occur. b. Identification of specific individuals with particular acts Thus, Respondent urges that participation by its members in particular unlawful activities has not been established because of lack.of specific identification of its members with specific activities. This contention, however, ignores the fact, estab- lished by testimony of Respondent's own witnesses, that at least a substantial pro- portion, perhaps half or more according to their own arithmetic and account, of the mob consisted of their own members. Since Respondent's members concededly constituted a major presence in and component of the mob, it defies belief that, under the circumstances described, each and every one of Respondent's members remained stolid, while unidentified alien elements at their sides and all around them were the only persons who engaged in the disorderly activities. In assessing legal responsi- bility for the activities of a mob such as this, which deliberately formed itself after the meeting and described discussion at its union hall, for the express purpose of meeting the Grundy convoy, it is not essential to identify specific individuals of such 7 See, for example, United Mine Workers v. Osborne Mining Co., 279 F. 2d 716 (C.A. 6) ; N.L.R B. v. United Mine Workers, District 2, et al. (M. F. Fetterolf Co.), 210 F. 2d 281 (C.A. 3) ; NL.R.B. v. United Mine Workers, District 81, et al. (L. E. Cleghorn), 198 F. 2d 389 (,CA. 4), cert, denied 344 U.S. 884; N.L.R.B. v. United Mine'Workers, District 23, et al. (West Kentucky Coal Company), 195 F. 2d 961 (C.A. 6), cert. denied 344 U.S. 920; N L.R B. v. United Mine Workers, District 31, et al. (Bitner Fuel Co ), 190 F. 2d 251 (CA. 4) ; Potter v. Cement Workers Union, 48 LRRM 2965 (D.C.E.D. Tex. ; blocking the only access road to plant) ; Local 5881, United Mine Workers (Grundy Mining Company), 130 NLRB 1181 ; United Mine Workers of America, et al. (Blue Ridge Coal Corporation), 129 NLRB 146; United Mine Workers District 50 (Eagle Manufacturing Corporation), 112 NLRB 74; District 50 United Mine Workers (Tungsten Mining Corporation), 106 NLRB 903. When men are massed so that employees in order to get to work must, in effect run a gauntlet, this in itself, without more, is coercive. American Steel Foundries v. Tri-City Central Trades Council, 257 U S. 184. Although I have found that the described acts at Pocket Intersection, including the road blockage, did in fact take place and did in fact have a coercive effect on the Grundy employees and in fact prevented them from being able to get to work, such a finding is not essential to establish violation of Section 8(b) (1) (A) of the Act. It is sufficient to establish a violation of that section to show that the con- duct of Respondent union had a tendency-which of course it clearly did-to restrain or coerce the Grundy employees, without requiring them to attempt to get to work at the risk of their lives or even lesser peril. The Act does not require proof that coercive con- duct had its desired effect. N.L.R.B. v. Wilbur H. Ford, d/b/a Ford Brothers, 170 F. 2d -735, 738 (C.A. 6). 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a mob with particular acts perpetrated by it. Members of mobs do not normally call for silence and announce their names before committing violent and disorderly acts. Indeed, their identification with the mob often provides them with the courage, power, and anonymity to do that which they otherwise could or would not do. In mob action, the acts of one may in legal contemplation justifiably be regarded as the acts of all8 This includes the gunplay on the part of Hicks, who, even though possibly not a card-carrying member of Respondent's particular local of United Mine Workers, nevertheless, according to Respondent's officers, participated at the union meeting which served as the curtain-raiser for the ensuing mob violence at Pocket Intersection, where he also was concededly present, and where he was iden- tified by numerous eyewitnesses, whose testimony I credit, to level four or five shots at the Howard Higgins vehicle as it raced through the human gauntlet of which he, in concert with Respondent's members, formed a part, Furthermore, there is no contention that any of the mob in any way attempted to stop, discourage, or dis- suade Hicks, as a member thereof, in his gunplay, or in any way interfered with his good marksmanship in scoring on his fast-moving target. Under these circum- stances, perhaps particularly since Hicks was present at the union meeting and in the ensuing mob on purposeful, official business, with the sanction and approbation of its personnel, at least as a member of a sistor local effected with an interest and common grievance arising out of the Union's lack of success in the area and a common hostility toward the convoy which they massed to await, Respondent can- not shed responsibility for his actions as a member of that mob.9' 10 c.. Role of Respondent's officials - My views with regard to the culpability of Respondent in connection with the described events of May 7, 1963, at Pocket Intersection are reinforced, and if need be would find independent support for my factfindibgs, in the presence, activities, and omissions to act there of various of its officials, who can hardly be regarded, other than by the excessively naive, as having been there as neutral observers or for 8 The ancient principle that ". . . all coming to do an unlawful act, and of one party, the act of one is the act of all of the same party being present." (Sir John Heydon's case, 1613, 11 Co. Rep. 5), is still law, and has been extended beyond its original scope in both civil and criminal cases. Prosser; Torts, sec. 46, p. 234 ( 2d ed. 1955). Nor does it matter that the acts perpetrated by one exceed what the others might reasonably have foreseen. Thompson v. Johnson, 180 F. 2d 431, 434 (C.A. 5). 0 Clearly, of course, Respondent is accountable for the mass action of its own mem- bers. ". . as long as a union is functioning as a union ,it must be held responsible for the mass action of its members." United States v. International Union, United Mine Workers of America, 77 F. Supp. 563, 566, app. dism. and affd. In part, 177 F. 2d 29 (App. D.C.); cert. denied 338 U.S. 871. This may be true even though the specific acts are unauthorized. "It is true of a union as of an employer that it may be responsible for acts which it has not expressly authorized or which might not be attributable to it on strict application of the rules of respondeat superior. International Association of Machin- ists v. 'Labor Board, 311 U.S..72, 80, 61 S. Ct. 83, 85 L. Ed. 60; Heinz Co. v. Labor Board, 311 U.S. 514, 61 St. Ct. 320, 85 L. Ed. 309." Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 295. See also Act, sec. 2(13) ; Titus v. Smeltermen's Local 25, 54 LRRM 2051. This liability encompasses acts in the union interest which have ' been expressly forbidden by it. Restatement (Second) Agency, secs. 228-230, 233-235; N.L.R.B. v. United Mine Workers of America, District 31 (Bitner Fuel Co.), 190 F. 2d 251, 252 (C.A. 4) ; N.L R B. v. Acme Mattress Co., Inc., 192 F. 2d 524, 527 (C.A. 7). 18It will be recalled that not only did Respondent and its sister local of United Mine Workers, also active in the general area here involved to which access was gained via the road here blocked, mass on the roads together, awaiting the Grundy convoy for the purposes and with the effect described, but they, even according to the testimony of Respondent's officials, met at the union hall that morning together for the purposes de- scrihed, discussing the convoy in anticipation of its arrival. The meeting, the planned activities, the massed awaiting of the convoy, the road blocking, and the ensuing acts, in short the coercion as a, whole, clearly constituted joint enterprise, for the consequences of which Respondent is legally accountable. A union is liable for the acts of persons pursuant to its actual or implied authority, including another union's misconduct occur- ring in the course of a joint venture. International Woodworkers of America, et al. (W. T. Smith Lumber Company), 116 NLRB 507; United Mine Workers, et al., District 23 (West Kentucky Coal, Company),, 92 NLRB 916, 950-951,- enfd. 195 F. 2d 961 (C.A. 6), cert. denied 344 U.S. 920. - UNITED MINE WORKERS OF AMERICA, LOCAL 7083 183 sterile onlook.11 The credible evidence establishes, and I find, actual knowledge, participation, and acquiescence by Respondent's officials 12 in or in direct connection with, and ratification by them of, the described mob activities, by or arising out of the following facts: their presence at and conduct of the union meeting and discussion preceding the massing outside to meet the Grundy convoy; their role in the deliberate forming of the group for the purpose of meeting that convoy; their actual presence at or in the immediate vicinity of the scene, and their observation and knowledge of what was going on; 13 and their failure in any way to cause, or to make any effort or attempt to cause, their men to cease or desist from their activities or to withdraw from participation in or association with the actions of the mob, or in any way to disavow Respondent's role therein, espousal thereof, or association therewith. That union responsibility may be predicated upon officials' presence during coercive acts if they refrain from halting or repudiating their members' and associates' participation therein or connection therewith, should be unmistakably clear.14 d. "Clean hands'' Without conceding that violence or other impropriety occurred, Respondent further contends that if the Trial Examiner should find that it did, Respondent should nevertheless be absolved of culpability therein because it was caused, pro- voked, or excused by the fact that some of the Grundy employees going to work were armed. Disregarding for the moment the uncontradicted evidence, which I have credited, that at no time during the episode was any weapon displayed or utilized by any of those employees, or visible to or observed by anybody else, I nevertheless believe this contention to be without merit. There is no need to speculate on why some of those employees, perhaps acting as other practical men similarly situated would, saw fit in the prevailing climate to equip themselves with means of defense which would to a degree tend to equalize their small numbers with a numerically far superior hostile force, should the necessity arise. Having held a meeting with a large number of its own members and closely associated colleagues, linked by immediate common interest, at the union hall around 6 a.m., 11 But, even if they were, they could readily have instructed their men to desist and with- draw, particularly Respondent's treasurer, Clifford Tate, who occupied a commanding position where he could easily ,be seen. Especially would this have been true if the atmos- phere was as quiet and serene as pictured by Respondent 's witnesses. ' I.e., Harvey Howell (president ), Earl Borne (vice president ), Clifford Tate ( treasurer), and Bryan Parmley (financial secretary). sa For example, the testimony of Clifford Tate, Respondent's treasurer , indicates that he personally occupied a vantage point or observation post on a large rock on high ground, while awaiting arrival of the convoy, in order to afford him optimum visibility of the scene below, in the manner of a military commander overseeing an operation (he was described by Howard Higgins as like a "traffic cop directing traffic"). Certainly , in this stance, commandeering a prominent position where he could .see and presumably be seen by all or most, he was not only fully aware of everything which ensued but was in an excellent position to direct his men to desist and stop, as well as to proceed or other- wise act. 14 In Local 5881, United Mine Workers of America .(Grundy Mining Company), 130 NLRB 1181, the respondent union's president and its financial secretary were present in a mob when violent acts against employees, the employer's (i.e., Grundy's) mine super- intendent, and an organizer for a rival union, occurred. The Board stated, 130 NLRB at 1182: In these circumstances, we find that by the failure of these officials of the Respond- ent to repudiate this conduct the Respondent ratified the acts of violence and cannot escape liability for their commission. See also, United Mine Workers v. Meadow Creek Coal Co., 263 F. 2d 52, 63 (C.A. 6) Selby-Battersby and Company v. N.L.R.B., 259 F. 2d 151, 157-158 (C.A. 4) ; International Union of Electrical, Radio, and Machine Workers, Local 905 (Sperry Rubber & Plastics Company), 134 NLRB 1713, 1724; International Hod Carriers' Union etc., Local Union No. 1140 (Platte Valley Pipeline Construction Company), 134 NLRB 722; Checker Taxi Company, 131 NLRB 611, 623, footnote 23; United Mine Workers, et at, District 81 (Blue Ridge Coal Corporation), 129 NLRB 146; United Brotherhood of Carpenters & Joiners et at. (Midwest Homes, Inc.), 123 NLRB 1806; Central Massachusetts Joint Board Textile Workers Union (Chas. Weinstein Company), 123 NLRB 590; International Woodworkers of America Local 5-426, at al. (W. T. Smith Lumber Company), 116 NLRB 507; District 50, United Mine Workers, et al. ( Tungsten Mining Corporation), 106 NLRB 903, 908. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with discussion of the Grundy convoy's imminent approach, and then having pro- ceeded to mass at a strategic point through which the convoy had to move in order to get to work, any-contention by Respondent that it was "defending" itself at the point where it had deliberately elected to emplace itself in force as described, against aggression or hostile action by the small convoy going to work in its usual way when confronted with this human gauntlet,15 borders on the frivolous. However, even assumption that some sort of indefinable "culpability" attached to these employees going to work because, perhaps in the prudent conduct of their affairs as realists, they traveled in convoy with concealed arms, and were themselves therefore without "clean hands," would not avail Respondent, since it is well settled that the "clean hands" doctrine, or the foregoing contention by whatever name it is called, is in- applicable to a proceeding such as this, wherein a governmental agency seeks com- pliance with law in the public interest 16 e. Significance of acts charged Respondent also urges that the acts here involved (if found) were too trivial, isolated, and insignificant to justify a remedial order. I cannot agree. The acts shown, including a deliberately designed and planned massing of men at a point through which they knew the Grundy employees convoy had to pass in order to be able to get to work, and also including gunplay which could very easily have resulted in serious casualties, can hardly be considered to have been mere "animal exuberance." 17 All circumstances considered, the episode cannot be viewed as a mere isolated incident unlikely of repetition, or one which would not exercise coer- cive effect on the Grundy employees who were unable to proceed to work on the day in question, or upon others who-might in future seek or-desire to do so, and there- fore not meriting the concern of the Board. The episode should be viewed realisti- - cally, in the context of the picture as a whole, including the presence at the place and time of the large number of persons involved, what transpired at their union hall immediately prior thereto, the exodus from the union hall to await the convoy, the inability of the vehicles to proceed, the cursing, threats, and gunplay, the turn- around of the convoy, and the presence and role of Respondent's officials-18 In the context, the episode not only merits but requires remedy.19 15 It is of course noteworthy that even according to Respondent's witnesses, for prac- tical purposes the entire convoy turned around and retreated. It is obvious that the mere fact that persons, such as some of the Grundy employees, were armed, does not pre- clude their being coerced, as herein, by superior force; nor are they under any obligation to employ their weapons unsuccessfully in order to establish coercion. Cf. National Organization of Masters, Mates and Pilots (Banta Towing Company, Inc., et al.), 116 NLRB 1787, 1796. 1e Eichleay Corporation, et al. v. N.L.R.B , 206 F. 2d 799, 806 (C.A. 3) ; Republic Steel Corporation v. N.L.R.B., 107 F. 2d 472, 479 (C.A. 3) ; N L.R B. v. Carlisle Lumber Co., 99 F 2d 533, 540 (C.A. 9) ; N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C A. 2), cert. denied 304 U S. 576; N.L.R.B. v. Carlisle Lumber Co, 94 F. 2d 138, 14,6 (C.A. 9), cert. denied 304 U.S. 575 ; National Organization of Masters, Mates and Pilots (J. W. Banta Towing Company, Inc.), 116 NLRB 1787, 1796-1797. 17 Cf. Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U S. 287, 293 is "It would be a sorry state of affairs if such improper conduct should be condoned and encouraged by a ruling that only unsuccessful and repeated mass picketing, attended by physical exclusion of employees from their place of work, should be considered suffi- ciently substantial to warrant an adjudication that a union had restrained and coerced the employees in the exercise of their right not to join a union, guaranteed them in Sec- tion 7 of the Act, in violation of Section 8(b) (1) (A) thereof." N.L.R.B. v. Local 1110, United Furniture Workers of America (Brooklyn Spring Corp.), 233 F. 2d 539, 540 (C.A. 2). "It was inevitable that the employees should learn of this brutal and unprovoked assault, and the Board properly held that 'these employees might have reasonably regarded these incidents as a reliable indication of what would befall them if they sought to work during the strike' Radio Officers' Union, etc. v. N.L.R.B , 347 U S. 17, 44-46, 74 S Ct. 323, 98 L. Ed. 455. No evidence of specific intent is necessary, as these duly accredited repre- sentatives of the union must be presumed to have intended the natural and reasonably foreseeable consequences of their acts." Id. at-541. 19 (e) Rulings reserved at hearing.-Rulings on motions by the parties at the hearing on which decision was reserved by the Trial Examiner, are disposed of as follows: (1) General Counsel's motion that official notice be taken by the Trial Examiner of a certain consolidated proceeding consisting of cases bearing Board docket numbers 1o-34, 10-CB-35, 10-CB-36, 10-CB-54, and 10-CB-1355, is denied. Since no Board UNITED MINE WORKERS OF AMERICA, LOCAL 7083 185 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Grundy 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 Respondent has engaged in coercive, unfair, and unlawful labor practices, I shall recommend that Respondent be required to cease and desist from such practices and that it take certain affirmative action deemed necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Grundy Mining Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent, United Mine Workers of America, Local No. 7083, is a labor organization within the meaning of Section 2(5) of the Act. 3. By massing upon the access roads and blocking ingress to the Grundy minesite, by employing and threatening to employ physical violence against employees of Grundy on their way to work at Grundy, and by preventing Grundy employees from going to work at the Grundy minesite, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondent, United Mine Workers of America, Local No. 7083, its officers, agents, successors, and assigns shall: decision has been rendered in the consolidated proceeding or any of its component cases, the proceeding being presently on appeal before the Board, no binding effect inheres in the Intermediate Report (Cf. N.L.R.B. v. Fred H. Johnson, Atlas Linen and Industrial Supply, 310 F. 2d 550 (C.A. 6) ; West Point Mfg Co, 142 NLRB 1161.) Furthermore, there is no Identity of parties in the consolidated proceeding and herein, since only the first and last of the enumerated cases comprising the consolidation are said to have in- volved Respondent herein, and there is no showing that separability of the issues can be effected as to that party alone, or that they are material herein. (Cf. N.L.R.B. v. Bill Daniels, Inc, 202 F. 2d 579, 584 (C.A. 6).) Moreover, consideration of the consolidated proceeding is in any event wholly unnecessary to any of my findings or conclusions herein, which have been reached without resort to the consolidated proceeding, officially or as background. (Cf Harvey Aluminum, 142 NLRB 1041.) (2) At the hearing, evidence was elicited by General Counsel through Earl Borne, Respondent's vice president, as to his knowledge of another shooting incident said to have occurred at some other place on the morning in question. Respondent moved to strike out the testimony relating thereto as unconnected General Counsel opposed the motion upon the ground that Borne's knowledge of this other alleged shooting created a duty on Respondent's part to take appropriate measures to prevent the Hicks shooting of the convoy vehicle herein, as well, possibly, as related misbehavior by Respondent's members at the time and place ibere involved. Respondent's motion to strike out the testimony relating to this "other shooting" is granted. The testimony regarding the "other shoot- ing" was not connected. Furthermore, "proof" (using that term loosely) as to the "other shooting" was so vague and indefinite as to leave the mind in bafflement as to whether or not it in any way involved Respondent or any of its members or was in any way ascribable to Respondent's activities. Moreover, since the only proof in the record, namely Borne's testimony, does not satisfactorily establish that Borne, in fact, knew or was told that there had been another "shooting" until some 30 or 45 minutes after the Pocket Inter- section episode, including the Hicks gunplay, it is difficult to see how a duty to prevent a second shooting could be based upon a first shooting of which Borne had no knowledge until after the second shooting. (3) In view of my findings and conclusions herein, Respondent's motion at the con- clusion of the hearing to dismiss the complaint is of course denied. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Alone or in concert with others , cease and desist from: (a) Massing, forming, collecting, or congregating on, or blocking access roads or other means of ingress to or egress from the premises of Grundy Mining Com- pany, or otherwise preventing or impeding access, travel , or movement of Grundy employees to or from said premises. (b) Using, threatening to use, displaying, or carrying any weapon , stone, or similar object for the purpose of preventing or intimidating any person from work- ing or traveling to or from work at the Grundy premises. (c) Engaging in violence or threats toward Grundy employees or others, for or in connection with working at Grundy. (d) In any like or related manner restraining or coercing employees in the exer- cise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at the offices and meeting halls of Respondent , including its union hall on Route 108 near Pocket Road , between Whitwell and Palmer, Tennessee, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for the Tenth Region , shall, after being duly signed by an official representative of Respondent , be posted by' it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for the Tenth 'Region, for posting by Grundy Mining Company , said employer being willing, at all locations where notices to its employees are customarily posted. (c) Notify said Regional Director, in writing, within 20 days from receipt of this Decision and Recommended Order, what steps have been taken to comply therewith 21 20 In the event that this Recommended Order be adopted by the Board, the words "A Decision 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." 21 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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES 'OF GRUNDY MINING COMPANY Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, as amended, we hereby notify you that: WE WILL NOT mass, form , collect, or congregate on, or block 'access roads or other means of ingress to or egress from the premises of Grundy Mining Company, or otherwise prevent or impede access , travel, or movement of the employees of Grundy Mining Company to or from its premises. WE WILL NOT use, threaten to use , display, or carry any weapon , stone, or similar object for the purpose of preventing , or intimidating any person from working or traveling to or from work at the premises of Grundy Mining Company. WE WILL NOT engage in violence or threats toward the employees of Grundy Mining Company or others for or in connection with working at Grundy Mining Company. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. UNITED MINE WORKERS OF AMERICA, LOCAL 7083, 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. UNITED DAIRY CO. 187 Employees may communicate directly with the Board 's Regional Office, 528 Peach- tree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone No. 876-3311, Extension 5357, if they have any question concerning this notice or com- pliance with its provisions. United Dairy Co. and Retail, Wholesale and Department Store Union, Dairy, Bakery and Food Workers Local 379, AFL-CIO. Case No. 6-CA-2551. February 27, 1964 DECISION AND ORDER On May 31, 1963, Trial Examiner George J. Bott issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Report. Thereafter, the Charging Party, the General Counsel, and the Re- spondent 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 [Members Leedom, Fanning, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and for the reasons set forth below-concerning the pro- cedural handling of the case before hearing-has determined to dis- miss the complaint in its entirety. On July 2, 1962, the Union filed its charge alleging 8 (a) (1), (3), and (5) violations, the latter including an allegation that the Re- spondent had refused to bargain by failure to discuss with the Charg- ing Party the decision to sell two of its plants. After consideration, the General Counsel authorized the Regional Director to issue a com- plaint which alleged 8(a) (1) and (5) violations, limited, however, to failure to bargain as to the effect on employees of the decision to sell. The limitation on the scope of the complaint, more particularly the "refusal to issue" a complaint on that part of the charge relating to the failure to bargain about the decision to sell, was the subject of a timely appeal by the Charging Party to the General Counsel. Thereafter the Respondent executed a settlement agreement, appar- ently after being told by the Board agent that the Regional Director would not issue a complaint on other portions of the charge once the settlement had been approved. The agreement itself, with appro- priate review provision, provided for withdrawal of the existing 146 NLRB No. 16.