United Mine Workers of America, Local 7244

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Board's established policy, such employees are appropriately a part of the production and maintenance unit and on proper request will be included in such unit without being granted a self-determina- tion election.25 In view of the foregoing and upon the entire record in the case, we find that the following employees at Century Foundry Company constitute an appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9 (b) of the Act : All production, pattern repair, and maintenance employees, includ- ing leadmen, group leaders, laboratory technicians, production con- trol clerks, the pattern clerk, and the timekeeper at the Employer's St. Louis, Missouri, plant, but excluding the cost clerk, the payroll clerk, the purchasing clerk, and all other office clerical employees, watchmen, guards, professional employees, assistant foremen, fore- ladies, and all other supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] 25 D.V. Displays Corp., supra. United Mine Workers of America, Local No. 7244 [Grundy Min- ing Company] and Southern Labor Union. Case No. 10-CB- 1402. March 5, 19641. DECISION AND ORDER On November 1, 1963, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled case, finding that the Respondent had engaged 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 [Chairman McCulloch and Members Fanning and Jenkins]. 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 De- cision of the Trial Examiner and the entire record in this case includ- ing the exceptions and brief, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. 146 NLRB No. 29. UNITED MINE WORKERS OF AMERICA, LOCAL 7244 245 ORDER The Board adopts 'as its Order the Trial Examiner's Recommended • Order with the amendment noted below.' 1 The Recommended Order is, hereby . changed 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. 7244 , Its officers, agents, representatives, successors, and assigns, shall: 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. 7244, alleging that on or about April 24, 1963 , Respondent instigated and participated in mob threats and violence against employees of Grundy Mining Company (herein called Grundy) to prevent them from meeting to organize , form, join, and assist Southern Labor Union (the Charging Party), in violation of Section 8(b)(1)(A ) and Section 2(6) and (7 ) of the National Labor Relations Act, as amended (herein called the Act). Respondent's denial of these allegations resulted in issues fully litigated at a hearing before Trial Examiner Stanley N . Ohlbaum in Chattanooga, Tennessee, on August 7 and 8 , 1963, throughout which the parties participated and were repre- sented by counsel, who also submitted briefs thereafter. 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 with an office and place of business in Tracy City, Tennessee, where it was engaged in mining , processing, and selling coal, during the representative 12-month period preceding the complaint, sold and shipped outside of Tennessee products valued over $1,000,000; that Grundy, a wholly owned Tennessee corporate subsidiary of Consolidated , also with its office and place of business in Tracy City, and engaged in mining coal, during the same period, sold Consolidated coal valued oved $300,000; and that at all material times Grundy has been and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is alleged, admitted, and found that at all material times Respondent has been and is a labor organization within the meaning of Section 2(5) of the Act. At the outset of the hearing it was stipulated, and is found, that at all material times Southern Labor Union (herein called Southern) has been and is a labor organiza- tion within the meaning of Section 2 (5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Background When Respondent ceased supplying miners at the Tracy City (near Chattanooga) Grundy minesite, others commenced working there . On April 18, 1963 , Grundy employees attended a meeting of Southern at the Dunlap, Tennessee, courthouse, where a further meeting was scheduled to be held the following week, on April 24 at 2 p.m. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Respondent's alleged restraint and coercion; events of April 24, 1963 1. Evidence adduced by General Counsel Grundy employees and Southern representatives testified that on April 24, 1963, they went to Dunlap in three cars to-attend their scheduled organizational meeting, at which they intended to set up Grundy Local 139 of Southern and to elect officers. One car went ahead to verify availability of the courthouse meeting site with a local official whose office was above Stagg's Drugstore on Route 127, the main street of Dunlap. When the other two vehicles arrived, around 1:15, they parked at Stagg's and the occupants disembarked. As they stood there,, they observed some of Respondent's members, former Grundy employees, ride, by in a pickup truck. Shortly thereafter a crowd of about 100 of Respondent's members, including its financial secretary, E. O. Bone, came down the street toward them, 3 or 4 abreast, one of them saying in a loud and angry voice, "There's not gonna be a meeting here today. We don't need another union in this mine." One of the cars left to get the sheriff, while the occupants of the others retreated into and locked their cars. A group of Respondent's members surrounded and grabbed hold of one of the cars, saying, "Let's turn the car over and pour them out" and "Kill the SOB'S," and rocked and- attempted to turn it over or to indicate they were going to turn it over, but stopped the rocking when they saw a weapon inside the car. One of the more active members of the crowd (Respondent's member Birdwell) said, "If I could get that glass on down I would get that gun." When Davis, a Southern field representative, told them they were there to hold a union meeting, Respondent's member Kilgore said, "There's not gonna be any union meeting this afternoon, go on home." Kilgore further said that although Davis was welcome to his house to eat dinner, he was "never to come in that place organizing, never to show [his] face again or [he] would be killed." When Davis told Respondent's committee- man Picket that they had come down to sign men up, Picket said, "You are not going to today . . . If you are not dead today, you are going to be dead, and "If you can get out of here now without dying will you promise me you will never show your face in this section again?" Davis then informed Picket he had a job to do and would be back, and Picket replied, "You fellows can't do any good, there's only 50 of you and there's 12 or 1500 of us"; and when Davis said, "Looks to me like you've got 100," Picket responded, "I've got another 100 down the road organized and waiting for us." Respondent's member Sullivan, another vocal member Hof the crowd, snapping his fingers, said in a loud voice, "All I've got to do is snap my fingers and you are dead now," and that if they did get out alive they should promise not to come back "because if you do come back, you are dead, boys, you're dead, boys." Respondent's member Kilgore said, "There won't be but one union here." Creekmore, another Southern field representative and an occupant with Grundy employee Robert Green of the car that was rocked, was called by the crowd a "little mustached son-of-a-bitch" and referred to as "the man we've been looking for." Observing a weapon in his car, a member of Respondent's crowd said, "There's a gun. If he moves his hands, shoot him"; and "There's his literature . Let's take him out of there and take his literature, too." The occupants of this car, referred to by the crowd as "some more of them damn son-of-a-bitches," were also told by Sullivan, "We know you now, we know your faces. We don't want to catch you back in this area. If we do, you're dead." When the car which had gone for the sheriff returned, it parked on the other side of the street; i.e., opposite Stagg's. Meanwhile, a pickup truck, with Respondent's committeeman Picket holding his foot on the bumper as he spoke to his fellows milling around the parked cars, had pulled in and blocked the two parked cars which had ,remained. Respondent's men were gathered around these two parked vehicles in clusters, cursing the occupants, calling them "scabs," threatening to kill them, and urging them to "get out of town." Some of this angry, surging crowd, "whittling" with knives, asked the sheriff to take the guns away from the occupants of the vehicles -and "turn them over to us and we will take care of them" and "let them out on the highway and we will get to them out there." Sullivan said to the sheriff, "I'll tell you that union ain't got no right up here and it's agin the law for them to be in this town and we're gonna run them out of the town. They are gonna leave." When the mob's attention was called to the third car, which was parked across the street, i.e., the one with Grundy employees Morrison, Frizzell, and Waylon Green in it, who had summoned the sheriff, some of the crowd, includ- ing Birdwell,' separated themselves from the group to the tune of "Choke him 'til he ' As observed by me at the hearing, Birdwell is a husky, powerfully built man. UNITED MI-NE WORKERS OF AMERICA, LOCAL 7244 247 is dead," and began to cross the street toward that car. As Birdwell approached the car, he was twisting around in his hands what appeared to be a clothes -hanger wire and saying, "I will go across there and choke him until he's blue" and "I'll go over there and put this wire around Lonnie Morrison 's neck and choke him to death." Birdwell , still twisting the wire, when within a few feet of the car, then said to Morrison, "What are you doing coming down here trying to take our jobs?" Thereupon Morrison got out, pointed a gun at. Birdwell, and told him, "We are tending to our own business and you better let mine alone" and "Don't you come any further or I will kill you." Birdwell stopped and said , "Come get him sheriff, come get him and get his gun." When others of Respondent's men approached this vehicle, another occupant, Frizell (a Grundy employee and Southern representa- tive), also got out, pointed an automatic shotgun at them , and said to the sheriff or his aide, "If you don't scatter this crowd, I'm gonna scatter 'em myself." The sheriff thereupon collected the weapons of the vehicle 's occupants, and, when re- quested by some of them, took them to the jailhouse for protection . At this point Sullivan said, "We will get you tonight." The organizational meeting scheduled by Southern for that day , April 24, did not in fact take place, although a group of Grundy employees had assembled at the Dunlap courthouse for that purpose. During this entire incident, Respondent's Financial Secretary Bone and Com- mitteeman Picket were present as members of the crowd , fully observing and hear- ing, or in a position fully to observe and hear, what transpired, and in the case of Picket actively participating as indicated ; but neither did anything in any way to stop, dissuade, or repudiate what went on. 2. Respondent's version of the events of April 24 Respondent's members, former miners at or near the Grundy minesite, testified that the reason they and others of Respondent's men were present in large numbers in Dunlap on the afternoon of April 24 was to collect food vouchers in a parking lot about 11/z blocks from Stagg's, in accordance with their usual weekly practice. Sullivan, one of Respondent's more active participants in the events of the day, testified that: while walking from the lot to the post office (next to Stagg's), he saw Robert Green sitting in the rear seat of one of the vehicles parked in front of Stagg's; when he approached him to discuss some roof repairs to a house Green was renting from Sullivan's son, Green stopped him from opening the car door; and after he persisted and got it open anyway, Green "throwed" a gun "against my chest" or "right in my stomach" or "in my face," 2 and the front seat occupant (Creekmore) put a gun in his back. Sullivan thereupon told Green he had nothing against him, motioned to his (Sullivan's) fellow-member Kilgore to come over, and told Kilgore to stand by while he (Sullivan) went for the sheriff to "find out what's wrong." According to Sullivan, there were then 10 to 20 men, including 15 of Respondent's members, around the 2 parked cars, and about 80 toward the lot. Although Sullivan first testified he went directly for the sheriff, he later swore he made a circuitous, time-consuming detour to the house of Respondent's Treasurer Fletcher, where he encountered not only Fletcher but also Bone and Picket, and said, "Mr. Fletcher, little trouble down in town there. There's some fellows armed down there, and we've never found out who they are yet." 3 Sullivan further testi- fied that when he returned to the scene, "there wasn't anything much going on. They was quiet,, peaceful, everybody was"; and he did, however, see Morrison point- ing a gun at Birdwell, who stood emptyhanded; and that, as the sheriff disarmed Morrison, another occupant of the Morrison vehicle, Sullivan's half-brother, Waylon Green, presented a gun and then a tire tool at Sullivan, and the sheriff collected these also. Sullivan sought to portray a tranquil scene in which the sheriff quietly disarmed the occupants of the vehicles in the presence of a group of passive, gentlemanly spectator miners. He testified he heard nobody speak to any occupant of the Creekmore-Robert Green car (i.e., the one that was allegedly rocked), although he qualified this by saying, "I don't say that I was all the time looking." He denied snapping his fingers, uttering any threats, or speaking to anybody in any of the cars except Robert Green as described. He said the crowd was just "stand- ing there; just talking to each other" and not to the occupants of the cars and that he had no idea why they were around the cars. Kilgore, whom Sullivan testified he called over to the car from which Robert Green was pointing a gun at him, denied that he went to that car, and swore he 2 Sullivan testified at different times to each of these versions. I Sullivan testified thus notwithstanding his identification of Robert Green, whom he knew well, as the individual who thrust a gun into his chest, stomach, and/or face. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never saw anyone with a gun in either of the two parked cars. He testified that 'ie said to Davis (the Southern field representative), in the other car: "Now, listen, we done got shed of one little independent union. For God's sake, don't bring no more stir-up here. These women and little kids is now suffering in three counties I know of over this disturbance. If you'll not bring your union in this country, this will be fixed up and these poor people will get to go back to work and they'll get something to eat to live on . . . I might[y] near prayed and begged the two of them [Davis and Byrge, the latter Southern's secretary-treasurer] not to come back for the people was suffering in this free country . . . And they promised me they wouldn't be back to cause no more trouble . . . . they said, 'Mr. Kilgore, I promise you we won't be back in this country no more.' 4 . . . I said, `Yes, sir, Buddy, you get in with United Mine Workers and come back after you get- in with the United Mine Workers, stay all day and eat dinner with us.' " Respondent's member (at present its president) Layman testified that: he was present on the scene; when he saw Sullivan motioning to Kilgore to come over, he (Layman) went over to where Sullivan was standing at the Green car; he observed that "Robert Green was sitting in the back seat of the car" with "a gun stuck under his leg"; and he "couldn't see anything but the butt of it" when he "walked up there." Layman expressly denied that Green had a gun in his hand pointed at Sullivan. He also testified that the sheriff told him that "if I'd take them [Respondent's men] and get them back down the street, that they would take their guns off of them; he didn't want to take them in a crowd. He didn't want to take their guns off of them in a crowd, so I took-and there was eight or ten of the men went back down the street with me." He also said that Respondent's men around the parked cars did not direct any remarks to the occupants of the cars, but were merely conversing among themselves on matters he knew nothing about since he was paying no attention. Birdwell testified he was "just walking up and down the street there," denied saying anything at any time to any occupant of any car, and stated that as he was merely crossing the street empty-handed toward the Morrison car, in the presence of the sheriff, Morrison said, "Stop or I'll shoot you." He also stated that he heard nothing said by anybody else to any occupant of any of the vehicles, but that "If they was [talking] I didn't pay no attention to what they said." He further testified that "I was among them [the crowd]; I wasn't with them." Asked whether he recognized any of his fellow-unionists at the lot where the vouchers were being distributed, he said, "I probably did. I don't remember." Speaking of those around the parked cars as a "big crowd," he said, "When there is a big crowd that way, it results in excitement, people on the street and everywhere." Respondent's member Alvin Anderson (until December 1962 also a miner in the Grundy minestite area) testified that he was one of the first to receive his voucher in the lot,5 and walked up the street to Stagg's since "Everybody else was talking about Southern Union being up there," and that others had preceded him there. He stated that he walked between the bumpers of the two cars parked in front of Stagg's "to take a look," and that as he crossed the street Frizell got out of his car and pointed a gun at him, warning him not to come closer (but he later testified that he did not see Frizell get out of the car).6 Still another of Respond- ent's members, Alfred Anderson, testified that while at the lot with his fellows receiving vouchers, "somebody walked up through there and said, `There's some Southern Labor men down there,' and I walked down there, and there was a crowd of men standing there"; that Kilgore had told him they were "Southern Labor Union cars" and when he arrived at the scene the men in the crowd were talking about the fact that they were "Southern Labor Union cars"; and he heard Kilgore state to one of the occupants, "I want to know what you are doing trying to bust our union. I've not got anything against you, but I'll take you home and you're welcome to my house or to eat at my table, but don't try to bring no-we don't want no more union in here" and "we didn't want any other union in here . . . we don't want any other kind of union in here." All of Respondent's witnesses denied observing any car-rocking or anything in Birdwell's hands, or seeing or hearing anything coercive or unmannerly on the part 4 Kilgore's testimony appears to be inconsistent with that of Respondent's member Alfred Anderson, who swore that although he was standing by Kilgore, nothing at all was said by any of the car occupants. However, Anderson also testified he is hard of hearing s Respondent's member Alfred Anderson confirmed that vouchers were distributed alphabetically. e Frizell was the driver of the car Morrison was in, which went for the sheriff and on return parked on the other side of the street, i.e., opposite to the side Stagg's is on. UNITED MINE WORKERS OF AMERICA, LOCAL 7244 249 of any of Respondent's members. - Respondent's member Henry mentioned "excite- ment going on on my side of the street" (i.e., the Morrison -side) and testified that "the law told us to scatter out and go back." 3. Resolution of credibility In assessing the credibility of the conflicting version of the events described, certain basic matters must be borne in mind. To begin with, Respondent's mem- bers had the. right to be in Dunlap to receive. their vouchers. The Grundy employ- ees and Southern representatives also had the right to be there for their organiza- tional meeting and election of officers. In theory, both of these legal activities could and should have taken place without conflict. Explanation for the fact that they actually did not is to be found in the underlying realities of the situation. Respondent's members, embittered and resentful because of their displacement by these others at the Grundy area minefields, and confronted with an apparent hard- ening of this displacement through the imminent formation of a Grundy local of the competing union,7 did not want any union other than their own in the area, and they admittedly so informed the Grundy employees and Southern representatives who were in Dunlap to organize and elect officers that day. This is the atmosphere in which the events which occurred that day must be weighed. Essentially, I believe the version of the events testified to by General Counsel's witnesses, whose testimony impressed me for the most part as straightforward, consistent, and having the ring of truth. On the other hand, I was poorly impressed by Respondent's witnesses, based upon my observations of their testimonial demeanor, their equivocations, evasiveness, supposedly faulty recollections, inconsistencies,, and contradictions. Balancing my impressions of these witnesses against General Council's witnesses, I could not, for example, believe, as Respondent would have it, that General Counsel's witnesses' account of the Birdwell wire-twisting episode was sheer fabrication. Also, for example, I could not credit Sullivan's testimony with regard to the alleged trigger-mechanism of the ensuing events; namely, Robert Green's alleged pointing of a gun at his chest, stomach, or face (he testified at different times to each), particularly since Sullivan's testimony on this key point (as well as others) was contradicted by his fellow members on the scene. My poor impressions from these witnesses were not improved by Respondent's failure to produce, or in any way to account for its failure to produce as witnesses its officials Bone, Picket, or Fletcher, who figured prominently in the conflicting testimony of both sides.8 The Grundy faction readily admitted it was well armed. Its reasons are not diffi- cult to imagine. After observation all witnesses on both sides and carefully weigh- ing their testimony in the totality of the evidence, I am persuaded and find that none of the Grundy faction utilized, presented, or displayed any weapon other than defensively, and then only reasonably so after and as a result of violence or threatened violence by Respondent's members. I am unable to accept Respondent's attempted portrayal of a pastoral frieze of miners calmly lolling about on a weekday afternoon on a small-town street, suddenly subjected to unprovoked armed assault by a hostile band of violent aggressors, and even then just quietly chatting with each other and exhibiting other behavioral re- straints bordering on the highly incredible. On the contrary, it was, and I so find, Respondent's members and officials who through violence and threats of violence prevented the holding of what would otherwise have been a peaceful organizational meeting of Grundy employees. Accordingly, I find that: the Grundy employees and Southern representatives came to Dunlap on April 24 to conduct a scheduled organizational meeting at which they intended to form a Grundy local of Southern and elect officers; when a group of Respondent's members espied the Grundy faction on the street, they spread the word among the others gathered at the nearby lot to receive their vouchers, whereupon 75 to 100 of them hurried to where the Grundy cars were parked at Stagg's in order to disrupt and prevent any organizational activity by the Grundy employees; Respondent's members uttered threats, surrounded the parked Grundy cars, and rocked one of them as described by General Counsel's 7 Unquestionably Respondent's men knew what was going on. According to their own testimony the parked vehicles were described by them in their voucher line as "Southern Labor Union cars." 8 Cf II Wigmore, Evidence, secs. 285, 286 , and 289 (3d ed 1940) ; N.L R B. v. Kalof Pulp & Paper Corporation, 290 F. 2d 447, 450, 451 (C.A. 9) ; N.L R.B. v. Walliek & Schwalm, 198 F. 2d 477, 483 (C.A. 3) ; Whitin Machine Works, 100 NLRB 279, 285; Detroit Plastic Products Co., 121 NLRB 448, 499. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses; Birdwell, twisting a wire in his hands as narrated by General Counsel's witnesses, threatened to choke Morrison with it ; the Grundy faction was threatened not to return; these actions took place in the presence and with the knowledge of two of Respondent's officials, neither of whom did anything to interfere, or to dissuade or disassociate Respondent therefrom ; Respondent's members desisted from their activities only when confronted with the weapons of the Grundy faction; and because of the threats and violence of Respondent's members, the Grundy em- ployees could not hold their scheduled organizational meeting that day. 4. Conclusions, responsibility of Respondent Union There is no doubt that violent acts and threats such as occurred here are coercive and unlawful under the Act . 9 It remains only to consider Respondent's responsi- bility therefor. Respondent's responsibility for these acts and threats flows from its purposeful participation therein through substantial numbers of its members, including its offi- cials, Picket and Bone, as well as from the failure of those officials, who were present, in any way to prevent or dissuade the membership from participation therein or in any way to disassociate Respondent therefrom or to disavow responsibility there- for.10 As aptly stated by the court in United States V. International Union, United Mine Workers of America, 77 F. Supp. 563, 566, affirmed in part and appeal dis- missed, 177 F. 2d 29 (C.A.D.C.), cert. denied 338 U.S. 871: ". . . as long as a union is functioning as a union it must be held responsible for the mass action of its mem- bers." This may even be true where the specific acts perpetrated 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 Machinists v. N.L.R.B., 311 U.S. 72, 80, 61 S. Ct. 83, 85 L. Ed. 50; Heinz Co. v. Labor Board, 311 U.S. 514, 61 S. Ct. 320, 85 L. Ed. 309." Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 295. See also Act, Section 2(13); Titus v. Smeltermen's Local 25, 54 LRRM 2051. This liability may even extend to acts in pursuance of union interests, although the acts have been expressly forbidden by it. Restatement (Second) Agency, secs. 228-230, 233-235; N L.R B. V. United Mine Workers (Bitner Fuel Co.), 190 F. 2d 251, 252 (C.A. 4); N.L.R.B. v. Acme Mattress Co., 192 F. 2d 524, 527 (C.A. 7).11 In addition to contending that it is not responsible for the action of its members even if they did occur as charged (a contention which I have rejected for reasons explained above), Respondent contends that it is absolved of responsibility for these actions because its members were assaulted by the Grundy faction or provoked into O United Mine Workers v. Osborne Mining Co., 279 F 2d 716 (C.A 6) ; NLRB. v. United Mine Workers (M F. Fetterolf Co ), 210 F. 2d 281 (C.A. 3) ; NL.R.B. v United Mine Workers (L. E Cleghorn), 198 F 2d 389 (C A. 4), cert. denied 344 US 884, N.L.R B. v. United Mine Workers (West Kentucky Coal Co.), 195 F. 2d 961 (C A. 6), cert. denied 344 U.S 920; N.L R.B. v. United Mine Workers (Bitner Fuel Co ), 190 F 2d 251 (C.A. 4) ; Local 5881, United Mine Workers (Grundy Mining Co.), 130 NLRB 1181 ; United Mine Workers (Blue Ridge Coal Corp.), 129 NLRB 146; United Mine Workers (Eagle Mfg. Corp.), 112 NLRB 74; District 50, United Mine Workers (Tungsten Mining Corp.), 106 NLRB 903. 11 United Mine Workers v. Meadow Creek Coal Co., 263 F. 2d 52, 63 (CA 6) ; Selby- Battersby and Company v. N.L.R B., 259 F. 2d 151, 157-158 (C.A. 4) ; United Steel- workers of America et at (Vulcan-Cincinnati, Inc.), 137 NLRB 95; Local 5881, United Mine Workers ( Grundy Mining Company), 130 NLRB 1181; United Mine Workers et al (Blue Ridge Coal Corporation), 129 NLRB 146 ; District 50, United Mine Workers (Tung- sten Mining Corporation), 106 NLRB 903, 908. In Local 5881, United Mine Workers (Grundy Mining Co.), supra, the Board stated, 130 NLRB at 1182: "In these circum- stances, we find that by the failure of these officials of the Respondent to repudiate this conduct the Respondent ratified the acts of violence and cannot escape liability for their commission." - 11 Specific identification of particular individuals in a violent crowd such as herein, with particular acts committed by the crowd-although to a degree so identified herein-is unessential, since 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 in fact been extended beyond its original scope both in 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). UNITED MINE WORKERS OF AMERICA, LOCAL 7244 251 action by their being armed. -In crediting the version of the events given by Gen- eral Counsel's witnesses, I have already found to the contrary-namely, that at no time did any member of the Grundy group utilize, present, or display any weapon until after as a result of violence or threats of violence by Respondent's members, and then only reasonably in order to defend themselves. There is no doubt in my mind that the Grundy group would have had no occasion to, and would not have displayed any weapon had they not been in reasonable fear of serious bodily harm at the hands of Respondent's members. Respondent at the very least "supplied the initial spark for the events that ensued," 12 evidencing its intention to prevent the Grundy employees "by force if necessary, from conducting their business opera- tions." 13 Under these circumstances, the fact that the Grundy group resorted to display of their arms for self-protection is immaterial.14 Armed persons are not "fair game" for actions constituting unfair labor practices under the Act.15 Nor is the doctrine of "clean hands" available as a defense excusing Respondent's unlawful actions herein.le Furthermore, one illegality-and there is no credible proof of such herein on the part of any member of the Grundy group--does not justify another.17 Finally, it may be observed that if Respondent really felt that it was the victim of illegal activity on the part of the Grundy group, it could and should have restricted itself, as the Grundy group did, to lawful measures and to invoking the assistance of public instrumentalities including, if appropriate, the Board, instead of resorting to the very type of illegal self-help which it was the object of the Act to prevent. N.L.R.B. v. Plumbers Union of Nassau County, Local 457 (Bomat Plumbing and Heating), 299 F. 2d 497, 501 (C.A. 2).18 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Grundy described in section I, above, have' a close, 1a National Organization of Masters, Mates and Pilots etc. (J. W. Banta Towing Com- pany, inc ), 116 NLRB 1787, 1796. 13 Id 14 Id. 15 It is obvious that, among other things, the mere fact that persons are armed does not mean they are not subject to coercion. Cf. National Organization of Masters, Mates and Pilots etc. (J. W. Banta Towing Company, Inc ), supra. 19 The doctrine of "clean hands" Is inapplicable to a proceeding such as this, wherein a governmental agency seeks compliance with law in the public interest. See Eichleay Corporation v. NL.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.LRB. 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, 146 (C.A. 9), cert. denied 304 U S. 575 ; National Organization of Masters, Mates and Pilots etc. (J. W. Banta Towing Company, Inc.), 116 NLRB 1787, 1796-1797. 1711. .. one illegality should not excuse another. N.L.R.B. v. Remington Rand, Inc., 94 F 2d 862, 872 (2 Cir 1938). The public interest lies in labor peace, endangered by both. The remedy here was in the filing of charges before the Board when the claimed illegality came to light, not in illegal self-help. Superior Derrick Corp. v. N.L R.B., 273 F. 2d 891, 893 (5 Cir. 1960), cert denied 364 U.S. 816." N.L.R B. v. Plumbers Union of Nassau County, Local 457, 299 F. 2d 497, 501 (C.A. 2). To the same effect, see Smith Transfer Company v. N L R.B., 204 F. 2d 738, 740 (C.A. 5). . 18 Rulings reserved at hearing--Rulings on motions "on which decision was reserved at the hearing are disposed of as follows: (1) General Counsel's motion that official notice be taken by the Trial Examiner of Board-consolidated proceeding 10-CB-34, 10-CB-35, 10-CB-36, 10-CB-54, and 10-CB- 1355, is denied. Respondent Local of United Mine Workers was not a party to that con- solidated proceeding or to any of the cases comprising the consolidation, and there has been no showing of materiality (cf. N.L.R.B. v. Bill Daniels, Inc., 202 F. 2d 579, 584 (C A. 6)) ; furthermore, no Board decision having been rendered in the proceeding, which is now pending before the Board on appeal, the Intermediate Report therein Is not binding herein (cf. N.L.R.B. v. Fred H. Johnson, d/b/a Atlas Linen and Supply, 310 F. 2d 550 (C A. 6) ; West Point Manufacturing Company, 142 NLRB 1161) ; moreover, considera- tion of the consolidated proceeding is wholly unnecessary to any of the'findings or con- clusions herein, all of which have been arrived at without resort to the consolidated proceeding, officially or as background (cf. Harvey Aluminum, 142 NLRB 1041). (2) In view of the findings and conclusions herein, Respondent's motion at the conclu- sion of the entire case to dismiss the complaint is denied. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 unfair labor practices, I shall recommend that Respondent be required to cease and desist from such practices and that it takes certain affirmative action deemed necessary to effectuate the policies of the Act. 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. 7244, is a labor organization within the meaning of Section 2(5) of the Act. 3. Southern Labor Union, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. 4. By instigating and participating in mob threats and violence against employees of Grundy Mining Company to prevent them from meeting to organize, form, join, and assist Southern Labor Union, Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. 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. 7244, its officers, agents, representatives, successors, and assigns, shall: 1. Alone or in concert with others, cease and desist from: (a) Instigating or participating in violence or threats against employees of Grundy Mining Company to prevent them from meeting, or from otherwise exercis- ing their right, to organize, form, join, or assist Southern Labor Union or any other labor organization. (b) In any like or related manner restraining or coercing employees of Grundy Mining Company in the exercise 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, copies of the attached notice marked "Appendix." 19 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall; after being duly signed by an official representa- tive of Respondent, be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days threafter 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 herewith.ao 19In 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." 20 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." REVERE METAL ART COMPANY, INC. APPENDIX 253 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 instigate or participate in violence or threats against employees of Grundy Mining Company to prevent them from meeting at Dunlap, Ten- nessee, or elsewhere , or to prevent them from otherwise exercising their right to organize, form, join, or assist Southern Labor Union or any other labor organization. WE WILL NOT in any like or related manner restrain or coerce employees of Grundy Mining Company in the exercise of rights guaranteed them by Section 7 of the Act. All employees are free to become or refrain from becoming members of Southern Labor Union or any other labor organization. UNITED MINE WORKERS OF AMERICA , LOCAL No. 7244, 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, 528 Peachtree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone No. 876-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. Revere Metal Art Company, Inc. and Amalgamated Union Local 5, Metal, Iron and Miscellaneous Workers, District 5 and Affiliated Unions. Case No. 2-CA-9f48. March 5, 196 DECISION AND ORDER On November 5, 1963, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take :certain affirmative action, as set forth in the attached Decision. There- after, the Respondent filed exceptions to the Decision and a support- ing brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Jenkins]. 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 Trial Examiner's Decision, the Respondent's exceptions and brief, and the ,entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 146 NLRB No. 26.