United Mine Workers of America

UNITED MINE WORKERS OF AMERICA 913 WE WILL, upon request, or on behalf of, any employee who engaged in the strike, and has not yet been reinstated to his former, or a substantially equiva- lent, position, and is entitled to such reinstatement , immediately reinstate such employee to his former , or a substantially equivalent , position, without preju- dice to his seniority and other rights and privileges, discharging, if necessary to effect such reinstatement , any employee hired since the inception of, or during, the strike; and in the event we fail or refuse to reinstate any such requesting employee entitled to reinstatement , as provided herein, WE WILL reimburse such employee for any loss of pay he may suffer by reason of such failure or refusal. MACMILLAN RING-FREE OIL CO., INC., Employer. Dated------------------- By------------------------------------------- (Repr(,,sentative) (Title) This notice must remain posted for 60 days from the date of posting and must not be altered , defaced, or covered by any other material. Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5204 United Mine Workers of America and Chapel Coal Company. Case 6-CB-1809. September 7,1966 DECISION AND ORDER On June 6, 1966, Trial Examiner I-larold X. Summers issued his Decision in the above-entitled proceeding, fiiidulg that the Respond- ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and it brief in support thereof. The General Counsel filed a brief in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel' [Chairman McCulloch and Members Brown and Zagoria]. 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 entire record in this case, including the Trial Examiner's Decision, the exceptions, and the briefs, and hereby adopts the Trial Examiner's findings, conclusions , and recommendations, as modified herein. 160 NLRB No. 75. 257-551-67-vol . 160-69 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Substitute the following for paragraph 1(a) of the Trial Examiner's Recommended Order : P (a) Restraining or coercing employees 'by threatening to inflict or inflicting bodily injury upon any member of management of Chapel Coal Company." [2. Add the following at the end of paragraph 1(b) of the Trial Examiner's Recommended Order : ", as modified by the Labor- Management Reporting and Disclosure Act of 1959." [3. Substitute the following for the first indented paragraph of the notice : [WE WILL NOT restrain or coerce employees by threatening to, inflict or inflicting bodily injury upon any member of manage- ment of Chapel Coal Company.] [The Board dismissed the complaint insofar as it alleges unfair labor practices not found herein.] TRIAL EXAMINER'S DECISION This case was heard upon the complaint ' of the General Counsel of the National Labor Relations Board, herein called the Board , alleging that United Mine workers of America, herein called Respondent or UMW, had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer admitted some of the complaint's allegations , disclaimed knowledge or information of others, denied still others, and pleaded affirmatively; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Harold X. Summers at King- wood, West Virginia, on March 7 and 8, 1966. All parties were afforded full oppor- tunity to appear, to examine and cross -examine witnesses , to argue orally, and to submit briefs. Upon the entire record in the case, including my evaluation of the reliability of the witnesses based upon the evidence and my observation of their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Charging Party, Chapel Coal Company, herein variously called Chapel or the Company, is a West Virginia corporation engaged in the business of mining coal at its Sole operation at Kingwood, West Virginia.2 Within the 12-month period preceding the filing of the unfair labor practice charge initiating this proceeding, the Company sold and shipped from its Kingwood location to points outside the State of West Virginia coal valued in excess of $50,000. Chapel is an employer engaged in commerce within the meaning of the Act. H. THE UNION Respondent is, and at all times material has been , a labor organization within the meaning of the Act. 3 The complaint was Issued December 29, 1965. The charge initiating the proceeding was filed November 3, 1965. a Chapel is a wholly owned subsidiary of Maust Coal Company, not a party hereto. UNITED MINE WORKERS OF AMERICA 915 Joseph Yablonski, International representative and board member, Eli Zivkovich, International representative, and Myrl C. Miller, district representative, at all perti- nent times, were agents of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues The General Counsel contends, and Respondent denies, that Respondent, through agents, coerced and restrained employees in the exercise of their self-organizational rights by (1) blocking ingress to and egress from company property in connection with a strike and (2) physically assaulting a company representative in the pres- ence of employees. These issues will be disposed of hereinbelow. (In the nature of an affirmative defense, Respondent's answer alleges that the filing of the instant charge itself is part of a campaign by Chapel, in combination with other employers, to discourage employees from joining Respondent and to avoid bargaining collectively with Respondent, the choice of the majority of the involved employees; further, that the company representative alleged to be the target of an unlawful assault was himself engaged in an unprovoked attack upon a UMW representative to prevent his exhibiting UMW membership cards to management, for the purposes of undermining Respondent's status as bargaining agent and of enhancing negotiations with individual employees. To the extent that this defense amounts to a reliance on a "clean hands" doctrine, it is rejected; the fact that an employer may be violating the Act is no justification for proscribed conduct by a union, either in retaliation or in defense.3) B. The setting and chronology of events 0 As October 1965 went into its third week, Chapel's 170 rank-and-file employees were unrepresented by any labor organization, and there was no sign of an organizational drive among them. On Sunday, October 24,4 a number of these employees met to discuss their dissatisfaction with certain of their working conditions. They were in agreement upon the need for a number of improvements-a wage increase, the payment of portal-to-portal pay, premium for all Saturday and Sunday work, premium pay for specified holidays worked, and the cessation of the practice of "floating" a-and they signified a readiness to take action to achieve them. A committee of employees was appointed (sometimes called the First Committee), and they met that night with Stephen Altieri, company vice president; in addition, a followup meeting was held that night between Altieri and all of the employees. These sessions did not prove fruitful, and it was agreed among the employees that they should go on strike beginning at the opening of the 11 p.m. shift that night. The strike did go into effect as scheduled. During the 9 or 10 days which followed, there was picketing at a number of locations, but most of it-and all that is relevant herein-took place at the head of a private road leading to Chapel's primary operation, its so-called No. 1 mine. A detailed description of the scene is here in order. The mine, three-quarters of a mile back from West Virginia Route 72 at a point between Kingwood and Rawlesburg, West Virginia, can be reached from that highway only by means of an unpaved side road which, owned and main- tained by Chapel, traverses property also owned by Chapel. The road is 17 or 18 feet wide and is bordered on each side by a narrow shoulder and a ditch. At the time of the events in question, a 55-gallon drum sat alongside Route 72, across from the entrance to the mine road; this drum, called "the fire barrel" because of the function it performed, served as the focal point of the picketing activities. For the first several days of the strike, employees' support was running high, and there was no need for special measures in order to get participation. One or several employees who reported for work on that shift-presumably, they had not been aware of the beginning of the strike-were "asked" not to go in; and, without further ado, the request was honored. 8 Plumbers Union of Nassau County, Local 457 (Bomat Plumbing & Heating), 131 NLRB 1243, 1245-46. * Unless the contrary is indicated, all dates referred to herein fall within 1965. B Sending an employee home on a weekday and asking him to work on a Saturday or Sunday to make up the day's loss. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (The evidence in this record establishes, and I find, that, except for whatever contrary conclusions can be drawn from the several incidents described herein, the picketing throughout the strike was conducted in, a peaceful manner. At any given time, between 15 and 70 pickets were present, congregated at the fire barrel or on and around the access road. On occasion, a truck or automobile was parked on the road. No picket signs were displayed and no literature was dis- tributed; communication with those who sought entry to the mine, to the extent there was any, was oral. During the 9 or 10 days of the strike, in progressively larger numbers starting with the third day, employees reported for and left work despite the picket line; likewise-except to the extent noted hereinbelow-deliveries, in and out, were unaffected.) During the day on Monday, October 25, a number of UMW representatives appeared at the picket line. Their activities, at that time, were confined to soliciting signatures on union authorization cards, a campaign which continued into the next day. On Tuesday evening, Respondent sponsored a meeting of Chapel's employees at the Kingwood fire station. Approximately 140 employees were there. Agents of Respondent spoke, congratulating the employees for standing up for their convic- tions and, in general, seeking to persuade them of the benefits of collective bar- gaining. More authorization cards were signed,6 and-by a show of hands-a number of those named as members of the employees' committee two nights earlier volunteered to act in similar capacities for UMW. (They have sometimes been referred to as the Second Committee.) At the conclusion of the meeting it was decided that, if possible, a contact with management would be effected next day and that, at such a meeting, recognition of Respondent as bargaining agent would" be sought. Between the close of the meeting and the next morning, events began to take a new direction. Although the identities of the communicants are not revealed in this record, a tentative arrangement was made for a meeting between management and "the employees." At 9 a.m., on Wednesday, the 27th, a new (Third) committee was formed at the picket line. The committee was selected by and from among the employees, with- out any help or intereference from respondent representatives who were present. Piling. into two cars, the eight-man Third Committee proceeded toward King- wood in search of members of management. Their search was quickly rewarded: They passed Altieri and Joseph McQuade, president of Chapel's parent company, going in the opposite direction; making a U-turn, they went back to the mine entrance road, only to find that Altieri and McQuade had gone past that point down Route 72. They waited and, sure enough, the company men were seen approaching from the direction they had gone earlier. Unsuccessful in flagging them down-a manuever which, in McQuade's testimony herein, took the form of an attempt to block his progress 7-the committeemen jumped into their cars and pursued the two toward Kingwood. In the parking lot of Mamie's, a roadside restaurant just outside Kingwood, the men caught up with Altieri and McQuade. They explained that they represented "the employees and not the Union," and Altieri introduced each of them to McQuade. Then and there, they started discussing terms for settling the dispute. Meanwhile, back at the fire barrel, representatives of the UMW bestirred them- selves. In two cars, four of them, plus three members of the Second Committee, took to the highway toward Kingwood, and they soon came upon the scene of the negotiations taking place at Mamie's. Their arrival broke up the negotiations. As they pulled into the lot, McQuade told the employees' representatives that their discussions must stop temporarily but that they, would be resumed at another specified location. As the UMW people alighted, the others went for their vehicles. McQuade had started his motor and was backing onto the highway when his car was approached by several of the UMW representatives. One of them, Eli 6 The number of signed cards now exceeded 100. 7If my finding is correct , the flagging was being done by members of the Third Com- mittee. McQuade testified that among those seeking to stop him were UMW representatives Zivkovich and Miller. My finding herein does not rule out this possibility ; it could well be that the Third Committee was seeking to meet with management and that Respondent's representatives were seeking to make a claim for recognition. UNITED MINE WORKERS OF AMERICA 917 Zivkovich, held out a pack of authorization cards and called out, "We want to talk to you. We have a majority of your men signed up and want to bargain with you," or words to that effect. McQuade, lowering his window partway, said he had nothing to talk to Zivkovich about. Zivkovich persisted; he and UMW Repre- sentative Yablonski "crowded" the vehicle. Altieri, who had boarded his own jeep, jumped out and ran over, protesting that McQuade was a sick man 8 and that he should be let alone. He and Zivkovich then proceeded to elbow each other, each trying to interpose himself between the other and McQuade's car. UMW Representative Myrl Miller, who, until then had remained at a 15- to 20-foot distance, could restrain himself no longer. With a shout of "Let me get him!" he rushed toward Altieri. Altieri looked toward Miller just in time to receive a punch in the mouth which threw him backward down to the ground. As he lay there, Miller danced around him, maintaining a fighting pose. When Ronald War- nick, an employee-member of the Third Committee, came forward to help Altieri to his feet, Miller taunted Altieri, offered him more of the same; and Warnick, thinking he would be hit, dropped Altieri and prepared to defend himself. He and Miller took swings at each other, upon which six of the remaining (Third) committee-members rushed into the fray. Miller, wheeling from one direction to another, kept the men off him. No blows were struck and, almost as suddenly as it began, the action ceased. Altieri arose, wiped some blood from his face, and got into his jeep. He and McQuade, in separate cars, pulled out of the lot and proceeded to the county sheriff's office. The Third Committee followed them there, and the UMW adherents went off in the opposite direction.9 (Later, Altieri, who suffered mouth lacerations, a lump on the side of his head, and bruised ribs, was taken to a hospital, where he was confined for almost 4 days; and, subsequently, he was again hospitalized for 2 days and was under a doctor's care for some time thereafter. Miller, it turned out, had broken his hand in the scuffle.) At the close of the incident, after making an appointment to meet with McQuade at 4 p.m., the Third Committee returned to the picket line. Later that morning, an employee of an electrical repair shop sought to pick up a speed-reducing motor from Chapel. He was stopped at the access road, 50 to 70 pickets milling around his truck. Several of them said he had better not go up to the road or-according to another version of his testimony-asked him not to do so. Whatever the form of their communication, he was unwilling "to mess with that many [people]," and he turned around and left. At the conclusion of the "assault" incident described earlier, the UMW rep- resentatives had departed the scene. Now, later in the day, a new one appeared at the picket line and introduced himself (as Murry, Murray, or Murphy). At that time, Darwin Pratt, a company employee and spokesman for the Third Com- mittee, told him that the employees would solve their problems themselves and neither needed nor desired help from Respondent. Thereafter, I find, Respondent bowed out of the picture.'° At or about 2:30 p.m. of the same day-Wednesday, the 27th-Ray Gray, general foreman of the second shift, and Cecil Stone, a section foreman on that shift, approached the mine entrance in the latter's truck. The presence of 50 or 60 pickets on and about the access road caused them to stop. When, in response to inquiries, they said they were going in to work," two or three voices from the crowd said they were not. Stone suggested that he be permitted to take Gray in, then come out himself, but the response was unfavorable; one picket (uniden- tified) said something about upsetting the truck. Then, picket Pratt explained that they could not go in until after the employees' committee had met with McQuade at 4 p.m.; qualifying this a bit, he said that no one would be permitted in except 8 McQuade had recently undergone surgery. 9 This account of the incident constitutes an amalgam of the credited testimony of the many witnesses, no two of whom agreed in every detail. In the face of the overwhelming testimony to the contrary, I specifically reject testimony by Altieri and McQuade to the effect that (1) while Altierl lay on the ground, Miller kicked him, and (2) Altieri was unable to drive his own car from the scene of the action. 10 On one or two occasions thereafter, UMW representatives visited the picket line, but only to ascertain "how things were going." u Prior to this, they had been reporting for work. I 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for someone to "look after" the mine-a description which he apparently felt fitted Gray. Thereupon, Gray was driven down to the mine by a picket, and Stone went home.12 A few minutes later, Company Chief Electrician Ronald White and Supply Clerk Charles Zinn reported for work. The 50 or 60 pickets were still milling around, and a tree limb lay almost all the way across the access road. White stopped his car and Pratt stepped up , announcing that no one was going in until after the 4 o'clock meeting with management. When White protested that, as a supervisor, he "bargained for himself," Pratt turned to the men for guidance. Overwhelmingly, they signified that neither White nor Zinn should come in. Pratt conveyed the verdict, and White and Zinn turned around and left. Then, at Pratt's order, the limb was removed from the road and cut up into fuel for the fire barrel-fulfilling the function for which, I find, the limb was originally brought to the scene. The Third Committee kept its appointment with McQuade at 4 p.m. Now, the Company, through McQuade, offered to comply with all the employees' demands except that for a wage increase, provided the men returned to work. Although the offer was conditioned upon acceptance then and there, the committeemen said they could not accept it without the consent of a majority of the employees. Next morning, the 28th, the pickets, six or seven of them, stopped Assistant Foreman Charles Wilhelm from reporting for work. Pratt, speaking for them, said that the mine was "out of business." When Wilhelm protested that the pickets were "not supposed to block bosses" and that he could "get the law to get me in," he was told he would have to do just that. He did not choose to test the issue; he turned around and went home.13 Thirty minutes later, McQuade approached the entrance, accompanied by General Manager Gray,14 Engineer F. L. Flood, and Bookkeeper Glenn Williams. According to the testimony of McQuade, as he drove into the access road a truck of unknown origin was blocking the opposite (left-hand) lane and, as he passed the truck, a car, presumably driven by Eli Zivkovich, pulled in behind him and parked along- side the truck, thereby completely blocking the road he had just used. When he arrived at the mine office-McQuade's testimony continues-he telephoned the sheriff's office; thereafter (it was reported to him), a sheriff cleared the road and, at 11 or 12 o'clock, McQuade left the mine premises without obstruction. For pur- poses of this case, it is unnecessary to pass on the verity of this testimony as a whole; it is only necessary for me to find, as I do, that Eli Zivkovich was not in the vicinity on the day in question.15 On Saturday, October 30, the individual who had attempted to pick up the speed- reducing motor on the 27th tried again, this time accompanied by a fellow employee. Once again, he was met at the mine road entrance by milling pickets , and, once again , he was told that he "had better" not go in. This time, he and his partner went to a telephone and called in to the mine. A supervisor (Ron White) came out to meet them, then took them, successively, to the office of Respondent's counsel and to the sheriff's office. Then, accompanied by a sheriff, they went into the mine with- out further incident. On Sunday, October 31, the Company and the Third Committee again met. The Company revived the offer it had made 4 days earlier and, this time, the strikers were polled on the subject. They rejected the offer, and the strike continued. One day, during the week ending November 3, Jack Clutter, a company shift foreman who worked daily during the strike, heard that the access road was blocked. Therefore, when he reported for work, he brought a State policeman with him. At the picket line, it turned out, a pickup truck parked crosswise blocked the access 12 On subsequent days of the strike, both Gray and Stone crossed the picket line without incident is On other days of the strike, earlier and later, Wilhelm reported for and left work without incident. 14 Presumably, not the same person as Night Foreman Ray Gray, referred to earlier. 151 credit the testimony of those witnesses who, without equivocation, testified to the effect that, after the assault incident of Wednesday morning, UMW representatives- except to the limited extent noted herein-left the scene. I take note that Manager Gray, Engineer Flood, and Bookkeeper Williams were not called as witnesses. I also make note that I have earlier rejected certain aspects of McQuade's testimony as to the assault incident. UNITED MINE WORKERS OF AMERICA 919 road. One of-the two employee-pickets there "wanted" Clutter to turn around and go away, but Clutter declined to do so; and the policeman ordered the truck removed. The process took 10 to 15 minutes because the truck became mired in the ditch, but, finally, the road was cleared and Clutter reported for work. On Wednesday, November 3, Chapel made the same offer to the Third Committee it had made twice before. Once again, the strikers, voted against acceptance. How- ever, upon a recount-the sentiment of the "tipple crew" had not been taken into account- the result was reversed. A strike-settlement agreement was signed, and the employees returned to work, beginning at 11 p.m. on November 3. C. The picketing The complaint alleged that, at various times commencing on or about October 25, 1965, Respondent, through agents, authorized, instigated, engaged in, and acquiesced in the use of mass picketing and other acts to deny Respondent's employees ingress to and egress from Respondent's property. I shall not repeat details of the "blocking" incidents about which there is testi- mony in this record. I have found that one or several employees were asked not to go into the mine property on October 24, the first night of the strike; a milling crowd of 50 to 70 pickets stopped a delivery pickup truck on October 27; later the same day, three of four men were prevented from going in to work by thinly veiled threats of violence, and, in the case of two of them, by the interposition of a bar- ricade-the fourth man being permitted to enter only by the express sufferance of the pickets; next morning, a supervisor reporting for work was told he could not enter without the protection of "the law"; on October 30, the presence of a law officer was requested to permit the entry of a pickup-delivery truck; and, on a day during the week ending November 3, several pickets impeded the entry of a super- visor by blocking the road with their trucks until ordered by police to remove the trucks. (I have also found that these constituted the only like incidents; that, on other occasions during the strike, employees and members of management entered and left Chapel's property without impediment. Also, I have failed to find, as urged, that the ingress of company of6cials_ was prevented or impeded by any representative of UMW on the morning of October 28. Likewise, I do not find, as implied in the testimony of General Counsel's witness McQuade, that, on the morning of Octo- ber 27, he and Vice President Altieri could not have gone into the mine had they wished to. As noted earlier, they were on Route 72 from Kingwood, intending to establish contact with an employees' committee. As they approached the access road, they saw the throng of pickets. The employees' committee with whom they hoped to establish contact was not readily apparent, but a number of UMW representatives were. According to McQuade, Zivkovich's car blocked the access road; according to Altieri, the road was "virtually" blocked. Without turning on their directional signals, McQuade and Altieri continued on Route 72 past the picketing scene. While it is true, as urged by the General Counsel,16 that testing a blockade is not a prerequisite to a finding of blockage I find that McQuade and Altieri (1) had no intention of entering the premises, and (2) had no reasonable basis for a belief that their entry would be impeded.) Without doubt, conduct of the nature above found constitutes restraint and coer- cion of employees in their exercise of self-organizational rights. The sole issue here is whether it is attributable to Respondent. Respondent's meaningful involvement in the Chapel's employees' strike is con- fined to the 48 hours ending with the assault during the morning of Wednesday, October 27. Its representatives appeared a half day after the strike began; they solicited bargaining authorizations; they sponsored a meeting of Chapel's employees, by the end of which, presumably, they had acquired bargaining authority from a majority of the affected employees; at that time, they decided to request recognition of Chapel as its employees' bargaining agent; and, next morning, they did (unsuccess- fully) seek exclusive bargaining rights. It was on the last occasion that the roof fell in. UMW became involved in the assault incident which is one of the items at issue herein. As it closed, Respondent's representatives, sensing that their presence was 16 Citing Industrial Union of Marine and Shipbuilding Workers of America (Bethlehem Steel Company [ Quincy, Mass. ] ), 130 NLRB 412, 423. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD something less than welcome,17 faded from the picture. Their instincts in this respect were verified later that day, when one of their number, venturing upon the picketing scene,18 was told in no uncertain terms that the employees would manage this affair without Respondent's help.19 And so, Respondent's "control" of the picketing situation, such as it exercised any,20 was confined to a period during which, I have found, no coercion or restraint occurred. In short, on this record, I find and conclude that the General Counsel has failed to show by a preponderance of the evidence that Respondent is responsible for the Chapel employees' unlawful picketing conduct, if any. D. The assault The complaint alleged that, on or about October 27, 1965, Respondent, through Myrl Miller, threatened to inflict and did inflict bodily injury on Stephen Altieri, company vice president, in the presence of employees of Chapel. The reference, of course, is to the incident occurring at Mamie's parking lot the morning of Octo- ber 27. Respondent, conceding that Miller struck Altieri, contends that he took the action to prevent Altieri from further assaulting UMW Representative Zivkovich and to prevent an assault upon himself. The short answer is that the facts, as found by me, do not demonstrate that the actions of Altieri constituted an assault upon Zivkovich or a threat of assault upon Miller such as to justify the latter in taking the action he did21 Manifestly, Miller's acts, committed in the presence of Chapel's employees, could not help but have, and did have, an inhibitory effect on their exercise of self- organizational or nonorganizational, rights It is too well settled to require citation 22 that such conduct by a union agent constitutes coercion and restraint of employees in their exercise of self-organizational rights and, as such, is attributable to the Union. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Chapel is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of the Act. 3. Myrl Miller, at all pertinent times, was an agent of Respondent. 4. By threatening to inflict and by inflicting bodily injury upon a representative of Chapel in the presence of employees, Respondent, through its Agent Miller, restrained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b)(1)(a). 5. The aforesaid unfair labor practices are unfair labor practices within the' meaning of Section 2(6) and (7) of the Act. 6. Except for the above, Respondent has not engaged in unfair labor practices as alleged in the complaint herein. 17 One of them offered to return the signed authorization cards of any of the employee- witnesses to the incident. >e One who had not theretofore shown his face. 1e Moreover, I find that Chapel was aware of this. It would strain my credulity to be asked to believe that the employees' committee which met with management at 4 p.m. that day did not reemphasize its independence of UMW m If its representatives issued any instructions as to picketing conduct , they were to the effect that the pickets should avoid violence and whiskey . I do not credit the testimony of one witness-out of many-that UMW representatives told the pickets to let no one enter the mine but bosses. s1 In this respect, Strauss Stores Corporation, 94 NLRB 440, cited by Respondent, is inapposite. z'" See Communication Workers of America, 120 NLRB 684 , 686, and cases there cited ; and N.L.R.B. v. Local 140, United Furniture Workers (Brooklyn Spring Corp .) ;. but cf. Local 1922 International Brotherhood of Electrical Workers (Mid-Island Lighting Fix- tures), 122 NLRB 850, 851, 857. UNITED, MINE WORKERS OF AMERICA 921 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take cer- tain affirmative action in order to effectuate the policies of the Act 23 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I issue the following: RECOMMENDED ORDER United Mine Workers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening to inflict or inflicting bodily injury upon any member of man- agement of Chapel Coal Company. (b) In any like manner, restraining or coercing employees of Chapel in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid of protection, and to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Post at conspicuous places at its offices nearest Kingwood, West Virginia, where notices to members and/or registrants for employment are customarily posted, copies of the attached notice marked "Appendix A." 24 Copies of such notice, to be furnished by the Regional Director for Region 6, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 6 for transmission to and for posting by Chapel Coal Company, if willing, at places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.25 22 At the hearing, testimony about the Involvement of a UMW representative in a past Board case involving an incident occurring in 1938, offered in support of a "broad" order herein, was rejected because of its remoteness The issue was not raised in the General Counsel's brief. 241D the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." 2a In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read as follows : "Notify the Regional Director for Region 6, in writing, within 10 days of the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS AND TO EMPLOYEES OF CHAPEL COAL COMPANY Pursuant to the Recommended Order of a Trial Examiner of National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT threaten to inflict or inflict bodily injury upon any member of management of Chapel Coal Company. WE WILL NOT in any like manner restrain or coerce employees of Chapel Coal Company in the exercise of their rights to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chosen by themselves ; to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection ; to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union-security requirement). UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. If members have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh , Pennsylvania 15222, Telephone 644-2969. L. L. Glascock, Inc. and Construction and General Laborers' Local No. 619, affiliated with International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO and Meridian Contractors' Association, Inc., Intervenor. Case 15-CA-92694. September 7,1966 DECISION AND ORDER On June 6, 1966, Trial Examiner Frederick U. Reel issued his Deci- sion in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent and Intervenor together, and the General Counsel separately, filed exceptions to the Trial Examiner's Decision, together with supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Trial Examiner's 1 The Trial Examiner permitted the Respondent to Introduce evidence with respect to certain preelection conduct of the Union which It contends improperly influenced the out- come of the election upon which the Union's certification was based The Trial Examiner concluded that the Respondent failed to show that the Union had engaged in preelection conduct requiring that the election should be set aside. We agree with his conclusions on the merits of Respondent 's "objections ." However, these objections Involved , In part, mat- ters contained in the Respondent 's "Objections to Conduct Affecting the Results of the Election" in the representation case, which objections were found by the Regional Director to be without merit. The Respondent 's request for review of the Regional Director 's report was denied by the Board . Also involved In the preelection conduct that Respondent sought to litigate here was certain matter not contained in its objections in the representation case, but such matter was not newly discovered or at least it involved alleged public con- 160 NLRB No. 74.