Local No. 8280, UMW

LOCAL NO. 8280, UMW 271 Local No. 8280, United Mine Workers of America (Leatherwood No. 1 Mine of Blue Diamond Coal Company) and Southern Labor Union Local No. 188 District 30, United Mine Workers of America (Leatherwood No. 1 Mine of Blue Diamond Coal Company) and Southern Labor Union Local No. 188. Cases 9-CP-46-1 and 46-2 June 29, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On November 29, 1966, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in certain unfair labor practices within the meaning of Section 8(b)(7)(A) of the National Labor Relations Act, as amended, and recommend- ing that the consolidated complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Deci- sion and a supporting brief, the Charging Party (SLU) filed a brief in support of the General Coun- sel's exceptions, and the Respondents filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 and the entire record in the case, including the exceptions and briefs, and finds merit in the exceptions of the General Coun- sel. The relevant findings of fact made by the Trial Examiner, but not his conclusions or recommenda- tions, are, as indicated below, hereby adopted. The basic facts are not in dispute. Briefly, the Respondent Unions are a local and a district or- ganization of the United Mine Workers of America. The UMW had been the recognized representative of the Employer's employees since about 1945 and was certified January 17, 1964. On February 24, 1964, the Employer served a 60-day notice of ter- mination of the existing contract. Negotiations for a new contract were initiated by an Employer letter of March 16, 1964. The parties quickly reached an impasse on economic issues. When the contract ex- pired on April 27, 1964, the 180 employees then on the payroll ceased work, but apparently no picket- ing ensued. Bargaining continued until June 25, 1964. Neither party requested a meeting after that date. On August 11, 1964, the Employer informed the employees by letter that it intended to reopen the mine and that employees who had not returned to work by August 24 would be permanently replaced. Except for a reference to "the same production schedule" that obtained on April 27, the letter did not set forth the terms or conditions of employment. Shortly after receipt of the letter, the nonworking employees decided "for the local officers to go in and talk to Mr. Earl Forrest (mine superintendent) on the conditions of the letter he'd sent and to come back to work." About 200 employees appeared at the company premises shortly after receipt of the letter, and the Local's president and three commit- teemen left the group and told the mine superin- tendent they wished to talk about their jobs and the possibility of returning to work. The superintendent replied that he would "talk to them as individuals but not as a group." After reporting to the group, the union representatives returned, advised the su- perintendent they could talk with him only as a group, and were informed that in that case he would not talk with them. The group then broke up. Mining operations were resumed on about November 1, 1964. At a meeting of the Respondent Local shortly after January 19, 1965, and after it was learned that the mine was in operation, it was decided that a picket line should be instituted. Picketing commenced on January 19 and con- tinued, with one interruption, until it was enjoined in a 10(1) proceeding on July 13, 1965. The picket signs stated, inter alia, that UMWA and Local 8280 had no contract. Meanwhile, on April 30, 1965, representatives of Southern Labor Union, the Charging Party, herein called SLU, demanded recognition and bargaining on the basis of 120 authorization cards from the unit employees, which then numbered about 120, of whom 28 had been employed previous to November 1, 1964. The Em- ployer's office manager testified that he compared the signatures on the cards with those in the person- nel files and, after rejecting about 5 as possibly not authentic, reported to the Employer that the SLU had presented 115 valid cards. The mine superin- tendent thereupon advised the SLU that it was recognized as collective-bargaining agent and proposed a May 5 meeting to negotiate a contract. On the same day the Employer notified the Respon- dent District that it was convinced UMW no longer represented the employees. The Employer and SLU representatives met as scheduled on May 4 and, after 14 to 16 hours of negotiations, reached agreement on a contract, which was signed on May 5. The complaint is limited to picketing which took place after the Employer recognized SLU as bar- gaining representative of the employees at the Em- ployer's Leatherwood No. 1 mine on April 30, 166 NLRB No. 8 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1965. The Trial Examiner found, inter alia, that the Employer engaged in an unfair labor practice when its mine superintendent refused to meet and deal with the local union committee shortly after August 11, 1964, and, instead, insisted upon individual bargaining with the striking employees.I He then reasoned that upon the commission of this unfair labor practice, the economic strikers in Respondent District's bargaining unit became unfair labor prac- tice strikers and were thus entitled to reinstatement and to inclusion in the bargaining unit for the pur- pose of ascertaining whether any union represented a majority therein. Since he found that Respondent District had a presumptive majority in such unit on the basis of the Board's certification of the District in January 1964, and that such presumption was not rebutted, the Trial Examiner concluded that on April 30 SLU was a minority union which was not validly recognized.2 Accordingly, the Trial Ex- aminer held that although recognition and bargain- ing may have been one object of the picketing,3 the Respondent District was a currently certified union whose picketing was in part to protest against unfair labor practices, and hence the picketing did not vio- late Section 8(b)(7)(A) of the Act. We cannot agree with the Trial Examiner's view of the case. Contrary to the Trial Examiner, we deem it un- necessary and improper to pass upon the Em- ployer's conduct which occurred more than 6 months prior to the filing of the charges herein, and we do not adopt the Trial Examiner's statement of the applicable statutory and decisional law. Rather, we view this case as controlled by our decision in Roman Stone ,4 in which we held that the term "lawfully recognized" in Section 8(b)(7)(A) "was meant to include all bargaining relationships im- mune from attack under Sections 8 and 9 of the Act." Here, as in Roman Stone, the legality of the Em- ployer's recognition of the incumbent union cannot be challenged in an 8(b)(7)(A) proceeding because no timely charge was filed thereon, and because the contract, being valid on its face and of reasonable i The strike began on April 27, 1964, but there was no picketing until January 19, 1965. 2 The Trial Examiner noted, incidentally, in his In. 25, that because SLU was a minority union, its contract would not bar a petition for an election. 3 The Trial Examiner did not specifically find that an object of the picketing was to secure recognition and bargaining, but in his view of the case this object could be lawfully pursued by picketing. How- ever, since the Respondents argue, and the Trial Examiner found, that the Respondents were presumed to be the majority representative and entitled to recognition , and since Respondents contend that this was not a proscribed objective because they were not seeking "initial recog- nition." such object is implicitly conceded as one aim of the picketing in any event, we have held that a statement on a picket sign that an employer does not have a contract with a labor organization clearly implies a recognitional and bargaining objective Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders, etc (Leonard Smitley, et al., d/b/a Crown Cafeteria), 135 N LRB 1183. Here, the strike in its origin was over the failure of the Employer to sign a contract and the picket signs protested the lack of a contract We find, accordingly, duration, would be a bar to a representation peti- tion? Accordingly, in the absence of a timely and meritorious charge, the Respondents are not enti- tled to assert any alleged invalidity in the Em- ployer's recognition of SLU as a defense herein. Therefore, as we have found that the Respondents6 picketed the Employer after April 30, 1965, at least partially for the purpose of securing recognition and bargaining, we conclude that they thereby violated Section 8(b)(7)(A) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in connection with the operations of Leatherwood No. 1 Mine of Blue Diamond Coal Company set forth in the attached Trial Examiner's Decision, 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. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Blue Diamond Coal Company is engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southern Labor Union Local No. 188; Dis- trict 30, United Mine Workers of America; and Local 8280, United Mine Workers of America, are labor organizations within the meaning of Sections 2(5) and 8(b)(7)(A) of the Act. that one object of the picketing of Leather-wood No. 1 Mine was for recognition and a collective-bargaining contract ' International Hod Carriers', et al. (Roman Stone Construction Com- pany), 153 NLRB 659. 5 See District 19, United Mine Workers of America (Seagraves Coal Company), 160 NLRB 1582, and Local No 7463, United Mine Workers ofAmerica (Harlan Fuel Company), 160 NLRB 1589. ' The Trial Examiner's approach to this case did not require that he consider Respondent District's denial of responsibility for the conduct of the Respondent Local in picketing the premises of the Employer. It ap- pears from the record, however, that payment received by the pickets from the District was disbursed on the picket line by a field representative of the District. Both the president of the Local and the president of the District testified that the latter attended meetings of the Local at which he discussed the conduct of the picketing. The president of the District also testified that Local's officers visited the District's offices on more than one occasion to discuss the conduct of the picketing. It is thus established on the record that the picketing was a joint venture of the Respondent District and Respondent Local. Accordingly, we shall direct our Order herein to both Respondents. LOCAL NO. 8280 , UMW 273 3. By picketing Leatherwood No. 1 Mine of Blue Diamond Coal Company at Harlan, Ken- tucky, with an object of forcing or requiring Blue Diamond to recognize and bargain with them as the collective-bargaining representative of its em- ployees, and with a further object of forcing or requiring Blue Diamond's employees to accept or select Respondents as their collective-bargaining representative, at a time when Blue Diamond had lawfully recognized Southern Labor Union Local No. 188 as the collective-bargaining representative of its employees, and a question concerning representation could not be raised under Section 9(c) of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondents, Dis- trict 30, United Mine Workers of America, and Local 8280, United Mine Workers of America, their officers, agents, and representatives, shall: 1. Cease and desist from picketing or causing to be picketed or threatening to picket Leatherwood No. 1 Mine of Blue Diamond Coal Company under conditions prohibited by Section 8(b)(7)(A) of the Act, where an object thereof is forcing or requiring such employer to recognize or bargain with them as the collective-bargaining representative of its em- ployees, or forcing or requiring said employees to select or accept Respondents as their collective-bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places at their business offices, meeting halls, and all places where notices to their members are customarily posted, copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 9, after being signed by an authorized representative of each Respondent, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail to the aforesaid Regional Director for Region 9, signed copies of said notices for posting by Blue Diamond Coal Company, if it be willing, in places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Deci- sion, what steps have been taken to comply herewith. ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " APPENDIX NOTICE TO ALL MEMBERS OF DISTRICT 30, UNITED MINE WORKERS OF AMERICA, AND LOCAL No. 8280, UNITED MINE WORKERS OF AMERICA, AND TO ALL EMPLOYEES OF LEATHERWOOD No. I MINE OF BLUE DIAMOND COAL COMPANY Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT under conditions prohibited by Section 8(b)(7) of the Act, picket, or cause to be picketed, or threaten to picket, Leather- wood No. 1 Mine of Blue Diamond Coal Com- pany, where an object thereof is to force or require Leatherwood No. I Mine of Blue Diamond Coal Company, to recognize or bar- gain with us as the representative of its em- ployees, or to force or require the employees of Leatherwood No. 1 Mine of Blue Diamond Coal Company to accept or select us as their collective-bargaining representative. DISTRICT 30, UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) Dated By LOCAL 8280, UNITED MINE WORKERS OF AMERICA (Labor Organization) (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If you have any question concerning this notice or compliance with its provisions, you may commu- nicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Street, Cincinnati, Ohio 45202, Telephone 684-3627. TRIAL EXAMINER'S DECISION LOWELL GOERLICH, Trial Examiner: Upon charges filed by Southern Labor Union Local No. 188, herein referred to as the Charging Party, the General Counsel of the National Labor Relations Board, herein called the Board, on behalf of the Board by the Regional Director for Region 9 on June 7, 1966, issued an order consolidat- ing cases, consolidated complaint and notice of hearing. Local No. 8280, United Mine Workers of America, herein referred to as Respondent Local No. 8280, and District 30, United' Mine Workers of America, herein referred to as Respondent District 30, were named Respondents. The consolidated complaint alleged that the Respondents had committed unfair labor practices within the meaning of Section 8(b)(7)(A) of the National Labor Relations Act, as amended, herein referred to as the Act. Respondents filed a timely joint answer to the consolidated complaint, denying that they had engaged or were engaging in the unfair labor practices alleged. The case came on for hearing before me in Harlan, Kentucky, on August 16. 17, and 18, 1966. At the close of the General Counsel's evidence, the Respondents moved to dismiss the consolidated complaint as against the Respondents and each of them in that the General Counsel had failed to establish proof to sustain the charges against the Respondents. The Trial Examiner ex- pressed "serious doubt as to whether or not a prima facie case [had] been established"; however, Respondents' motion was overruled subject to renewal. At the close of all the evidence, the Respondents renewed their motion to dismiss.' The Trial Examiner reserved ruling upon such motion in order to enable the General Counsel to submit a brief. The General Counsel, the Charging Party, and the Respondents have submitted briefs supporting their respective positions. The briefs have been carefully con- sidered by the Trial Examiner. The issue before the Trial Examiner on the Respond- ents' motion to dismiss is whether the evidence adduced by the General Counsel supports a finding that the picket- ing which continued at the premises of the Blue Diamond I In stating Respondents ' grounds for their motion Respondents' coun- sel said among other things' ... The evidence shows that at the time when United Mine Workers of America was a lawfully chosen bargaining agent of the employees of Blue Diamond Coal Company immediately after August 11, 1964, the Blue Diamond Coal Company refused , and this appears as a matter of law, to talk with the employees who had chosen the United Mine Workers of America as their bargaining agent, and was mein- bets of Respondent's Local 8280, refused to talk with them as a group and was told by an official of the Blue Diamond Coal Company that said Company would converse and talk with them individually. It therefore is contended that this action , that is undenied in this record, constitutes an unfair labor practice upon the part of Blue Diamond Coal Company and that the Blue Diamond Coal Company having committed same cannot now come here before this Board.. without this unfair labor practice being considered as a defense to the charger [sic] and against the Respondents. s Section 8(b)(7)(A) provides- It shall be an unfair labor practice for a labor organization or its agents- Coal Company's Leatherwood No. I Mine after the Blue Diamond Coal Company's recognition of the Southern Labor Union on April 30, 1965, without an election, and while the United Mine Workers remained the ostensible collective-bargaining agent, was in violation of Section 8(b)(7)(A) of the Act.2 The essential facts which are not in dispute are as fol- lows: Blue Diamond Coal Company (sometimes referred to herein as the Employer or Blue Diamond) is a Delaware corporation engaged in the mining, processing and sale of coal at its Leatherwood No. I Mine located near Leather- wood, Kentucky. It also operated the Blair Fork Mine and the Scotia Mine.3 The Southern Labor Union during the period covered by this Decision maintained labor contracts with the Blue Diamond Coal Company at such establishments. It is admitted that the Blue Diamond Coal Company is engaged in commerce as defined in Sec- tion 2(6) and (7) of the Act, and Trial Examiner so finds. On January 17, 1964,' the Regional Director for Region 9 certified the United Mine Workers of America as the collective-bargaining agent for a unit of "all production and maintenance employees employed at the employer's Leatherwood, Kentucky mine, excluding all office clerical employees, professional employees, guards, foremen and supervisors as defined in the Act." The certification resulted from an election in which 338 ballots were cast for the United Mine Workers of Amer- ica and none against it. There were 367 eligible voters; 11 ballots were challenged. Thereafter on February 24, 1964, Blue Diamond served on the Respondents a 60- day notice to terminate the contracts which covered the Leatherwood No. 1 Mine. Bargaining for a new contract commenced on March 16, 1964. On April 27, 1964, the contract expired and work ceased at the mine. "[A]bout 180" employees were on the payroll in the contract unit on April 27, 1964. None continued working. On May 25, 1964, Blue Diamond Coal Company's vice president, V.D. Toler, wrote C.E. Beane, president of District 30, a letter summarizing the results of the bar- gaining sessions to date. Attached to the letter was a "proposition" offered by the Company on May 15, 1964. The letter ended with the paragraph: On May 21, 1964, I telephoned you for the purpose of ascertaining your reaction to the last proposal. You informed me that you would be unable to accept our (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organiza- tion as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative , unless such labor or- ganization is currently certified as the representative of such em- ployees- (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act, .. . The alleged unlawful picketing occurred only at the Leatherwood No I Mine. 4 The petition for an election had been filed on November 20, 1962, and an election was conducted on September 26, 1963. 5 According to counsel for the General Counsel prior to November 1962, "United Mine Workers of America ... the parent organization of both the district and the local, was for more than 10 years recognized as collective bargaining representative of Blue Diamond Mine employees in- volved herein." LOCAL NO. 8280, UMW 275 proposal and you again suggested that we execute the new United Mine Workers of America's contract that was effective April 2, 1964, which for economic reasons was not acceptable to us. During this con- versation, I believe it was mutually understood that further meetings would be fruitless in view of economic conditions at the Leatherwood Mine and the national policy of the United Mine Workers of America. If I am in error about this understanding, please advise. President Beane without contradiction testified that he answered Toler's letter and advised Toler that he did not intend to leave the impression that negotiations had been broken off but that he was "ready to meet again at any time that could mutually be arranged." The final meeting between the parties took place on June 25, 1964; since that date the employer has not engaged in collective bar- gaining with any of the representatives of the United Mine Workers Union. On August 11, 1964, Earl Forrest, superintendent of Leatherwood No. I Mine, directed the following letter to each employee who had ceased work on April 27, 1964: This is to give you formal notice that work is availa- ble for you at the Leatherwood Mine if you wish to return to work. It is planned to re-open the mine upon the same production schedule, two shifts, as was being pursued on April 27, 1964. Jobs will be given to those first returning to work, regardless of whether laid off or working just prior to that date. We hope that you will return to work, but if you have not done so by August 24, 1964, we shall assume that you do not intend to return, and after that date we will employ permanent replacements for such of our employees, as continue to refuse this offered em- ployment. We want to assure you that there will be no dis- crimination against you, and even if you remain on strike after August 24, we will be glad to give you employment unless your job has been filled by a replacement. However, it is only fair to advise you that in the event your job is filled by a replacement before you offer to return to work, that replacement will not be discharged in order to make place for you. We would much prefer that you return to work, rather than be forced to replace you with someone else for we would rather have our present employees on the job. Shortly after the letter was received, the nonworking employees of the Company (no employees in the certified unit were working at the time) decided "for the local of- ficers to go in and talk to Mr. Earl Forrest on the condi- tions of the letter he'd sent and to come back to work." [Emphasis,. supplied. ]6 About 200 employees appeared at the Company's premises. Local Union President Willie Couch, with whom Forrest had dealt on employee grievances and other collective-bargaining matters, and Committeemen John Blair, Raymond Tiptons, and Rus- sel Schrader left the group to talk to Forrest. According to Forrest, "they told [him] they wanted to talk to [him] concerning their job or going back to work or something along that line." Forrest responded that he "would talk to them as individuals, but not as a group." Reference was made to Forrest's letter Qf August 11, 1964. After Forrest's communication the committee rejoined the group observing to Forrest before they left that "they'd find out about it." They returned within 10 minutes and "told [Forrest] they'd talk to [him] as a group, but they couldn't talk to him as individuals." For- rest testified, "I told them we couldn't talk then. So they must have told the men. They broke up pretty soon and got to leaving."7 According to Forrest, he was following Vice President Toler's instructions. Toler testified that he knew about the incident and was aware that Forrest had informed the union committee that "he would not talk to them as a group, but as in- dividuals." Toler said that it was upon his instructions that Forrest refused to discuss "reemployment of these former employees with a collective group or committee." Toler had instructed Forrest to meet only with the em- ployees "individually" and not to bargain with them as a "committee collectively." Such instructions were pur- suant to the Company's policy which Toler described, "Well, the policy I tried to establish, which was my inten- tion of establishing, was that we thought there would be some employees return to work, and that whenever they did come to work they would have to be talked to indi- vidually . . . . About the conditions of employment .. . wages, hours of work, general conditions of employ- ment." The policy" remained in effect on April 30, 1965. The record discloses that the policy was applied to em- ployees who returned to work. Following August 11, Blue Diamond commenced operations. Shortly prior to January 19, 1965, the Local Union met and, according to President Couch whose testimony is credited, decided to "put a picket line up and see if they'd recognize the picket line." Couch testified, "Well, they started back to work up there, the company did. We found out they had a stock pile of coal that we had, that we had loaded and they dumped it up there, that they hadn't paid any royality on at that time. And they started loading the stockpile of coal up and they were hir- ing outside men to come in there to do this job and taking our jobs that we were on. We had a meeting, the men did of Local 8280 and we decided that we had jobs. That we was the bargaining agent up there. We had an election and we had chosen the United Mine Workers to bargain for us. And then them was our jobs up there when the con- tract expired and if anybody worked up there we wanted our job. And the Company refused to talk to us on the letter. We went back to talk to them. We had a meeting and we decided that's the only choice we had to hold up e Other than reference to the "same production schedule" the letter did as he was pulling the door together he said that I will not see you, the men not mention the terms or conditions of employment offered. as a committee, but I will see each individual , if they want to talk to me ' John Blair testified, "... Earl Forrest come down and opened the that way." door and he asked Willie what he was wanting Willie told him that the 8 The policy was applicable to employees who had ceased work on men had sent us up there as a committee to talk to him to see what he had April 27, 1964. to offer in this letter. And Earl Forrest pulled the door back together and 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for our rights was to put a picket line up and to see if they recognized a picket line."9 [Emphasis supplied.] Peaceful picketing10 commenced at Blue Diamond's premises on January 19, 1965. The picketing was con- ducted by employees who "stood around or sat in cars." Picket signs were set beside the road which noted among other things that Local 8280 was on strike. In the latter part of January or early February 1965, the Southern Labor Union demanded recognition for em- ployees at the Leatherwood No. 1 Mine. The Employer denied the request on the ground that the Southern Labor Union" at the time did not represent a majority of its em- ployees. On March 4, 1965, the Perry County Circuit Court of the State of Tennessee granted a temporary restraining order which could be interpreted as prohibiting all pickets. Picketing ceased thereafter until March 31, 1965, at which time the temporary restraining order was modified permitting four pickets to appear at each en- trance of the plant making eight pickets in all. The picket- ing continued until July 13, 1966, at which time a 10(1) in- junction was granted by the District Court for Eastern District of Kentucky, which is still in force. During the entire period of picketing, the picketing was conducted in the same manner and picket signs were carried which noted among other things that Local 8280 was on strike. On April 30, 1965, representatives of the Southern Labor Union appeared at the offices of Blue Diamond and made a demand on Vice President and General Manager Toler and Superintendent Earl Forrest for bar- gaining. Representatives of the Southern Labor Union presented approximately 120 authorizations. At the time there were 119 employees in the unit, 28 of whom had been employees who had worked for the Company prior to November 1, 1964. The authorization cards were turned over to Fred Keen, the Employer's office manager, for the purpose of authenticating the signatures of the employees appearing on the authorization cards. Keen checked the signature on each card with the signa- ture of the employee appearing in the Employer's person- nel file. After checking all the cards Keen reported to Forrest that there were about 115 valid cards. Dates on the cards were not checked. Forrest immediately con- tacted the Southern Labor Union representatives and ad- vised them that Blue Diamond was recognizing the Southern Labor Union as its employees' collective-bar- gaining agent and would meet with it for the purpose of negotiating a collective-bargaining agreement on May 4, 1965. On the same date, April 30, 1965, Toler directed a letter to C. E. Beane, president of District 30, as follows: You are hereby notified that Blue Diamond Coal Co. is convinced that United Mine Workers of America no longer represents a majority of our em- ployees at our Leatherwood Mine, Leatherwood, Perry Co., Ky. Negotiations were commenced between Blue Diamond and the Southern Labor Union at the Union's office in Cumberland, Kentucky. A contract was signed on May 5. In all the parties negotiated between 14 and 18 hours. The contract contained the same hours, the same vaca- 9 According to C. E. Beane, president of District 30, the Local Union's officers reported to him that "they had not picketed until the Company reopened the mine and started luring men and that since the Company had refused to meet with them down there, and were hiring men, they were up there to see if they could protect their jobs and asked the men not to go on tions, the same welfare fund, and the same wages as that which had been negotiated and executed at the Em- ployer's Blair Fork Mine between the same parties. Toler testified that during the period of the strike the Respondent did not disqualify any of the employees by reason of any strike violence which they may have com- mitted during the strike. Conclusions The General Counsel contends that the above described picketing which continued on and after the Em- ployer's recognition of Southern Labor Union Local No. 188 on April 30, 1965, constituted an unfair labor prac- tice within the meaning of Section 8(b)(7)(A) of the Act. Section 8(b)(7)(A) provides: It shall be an unfair labor practice for a labor or- ganization or its agents - (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor or- ganization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their col- lective bargaining representative, unless such labor organization is currently certified as the representa- tive of such employees: (A) where the employer has lawfully recognized in accordance with this Act any other labor organiza- tion and a question concerning representation may not appropriately be raised under section 9(c) of this Act. . . . [Emphasis supplied.] The General Counsel does not contend that the picket- ing described above prior to the Employer's recognition of the Southern Labor Union on April 30, 1965, was in violation of Section 8(b)(7)(A) but asserts that thereafter the picketing was converted into unlawful picketing in violation of Section 8(b)(7)(A) of the Act by the Em- ployer's recognition of the Southern Labor Union and its contemporaneous withdrawal of recognition from the Respondents. According to the General Counsel the picketing which continued without substantial change after the Employer's recognition of the Southern Labor Union was "clearly for the purpose of regaining recogni- tion for the District and/or the International." Thus, reasons the General Counsel, the picketing continued as unprotected concerted activity and the sanctions of Sec- tion 8(b)(7)(A) became applicable. First: In International Hod Carriers Building, etc. (C. A. Blinne Construction Co.), 135 NLRB 1153, 1156, the Board said in reference to Section 8(b)(7) of the Act: The section as a whole, as is apparent from its opening phrases, prescribes limitations only on picketing for an object of "recognition" or "bargain- ing" (both of which terms will hereinafter be sub- sumed under the single term "recognition") or for an the jobs there that belonged to them." 10 When President Beane attended the Local's meeting he "told them if they continued to picket to do it peacefully .. . 11 Local 188 is an affiliate of the Southern Labor Union It was char- tered May 5, 1965. LOCAL NO. 8280, UMW 277 object of organization. Picketing for other objects is not proscribed by this section. Moreover, not all picketing for recognition or organization is proscribed. A "currently certified" union may picket for recognition or organization of employees for whom it is certified. And even a union which is not certified is barred from recognition or organization picketing only in three general areas. The first area, defined in subparagraph (A) of Section 8(b)(7), re- lates to situations where another union has been law- fully recognized and a question concerning represen- tation cannot appropriately be raised...." [Emphasis supplied.] The Board further opined at 1159: However, at the risk of laboring the obvious, it is im- portant to note that structurally, as well as grammati- cally, subparagraphs (A), (B), and (C) are subor- dinate to and controlled by the opening phrases of Section 8(b)(7). In other words, the thrust of all the Section 8(b)(7) provisions is only upon picketing for an object of recognition or organization, and not upon picketing for other objects. [Emphasis sup- plied.] In National Packing Company, Inc., 158 NLRB 1680, 1685, the Board reaffirmed its position taken in the Blinne case, supra, the Board said: Section 8(b)(7) is concerned specifically with limitations on the right to picket. We are convinced, however, that the right to picket and the right to strike in the instant case are inextricably part of the same conduct. Therefore, as the Supreme Court stated in Curtis Bros., supra [362 U.S. 274], an order "against peaceful picketing would obviously `impede' the right to strike," and can be sustained only if "specifically provided for" in the Act. With regard to the types of picketing that were "specifi- cally provided for," we stated in the Blinne case [135 NLRB 1153] that Section 8(b)(7) "as a whole, as is apparent from its opening phrases, prescribes limita- tions only on picketing for an object of `recognition' or `bargaining' ... or for an object of organization. Picketing for other objects is not proscribed by this section." [Emphasis supplied.] The Board held that, in that the strike was to protest the employer's "broken promises," the picketing was not for the purpose of obtaining recognition or bargaining; hence the employees did not picket for an object violative of Section 8(b)(7) of the Act. In reaching this conclusion the Board said, "We have held that Section 8(b)(7)(B) does not preclude picketing to protest an employer's un- fair labor practice." The Board pointed out that one of the elements to be proved in order to establish a Section 8(b)(7) violation is that "the object of the picketing is to force the Respondent `to recognize or bargain with a labor organization."' Thus the "object of the picketing" becomes pertinent in this proceeding for, if the "object of the picketing" was other than one proscribed by Section 8(b)(7)(A) of the Act, the picketing was lawful. The Respondents maintain that such "picketing ... was engaged in, not with the intent of violating the Act, but in protest to the violation of the Act by the Blue Diamond Coal Company...." It is clear that an object of the picketing was to protest the Employer's insistence upon individual bargaining with the employees who had ceased to work. The policy which was announced and followed during the certifica- tion year interfered with, restrained and coerced em- ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act and the Employer thereby violated Sec- tion 8(a)(1) of the Act.12 Such are the teachings of the Supreme Court in Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 684. The Supreme Court said: That it is a violation of the essential principle of collective bargaining and an infringement of the Act for the employer to disregard the bargaining representative by negotiating with individual em- ployees, whether a majority or a miniority, with respect to wages, hours and working conditions was recognized by this Court in J. I. Case Co. v. N.L.R.B., 321 U.S. 332 .... The statute guarantees to all employees the right to bargain collectively through their chosen representatives. Bargaining car- ried on by the employer directly with the employees, whether a minority or majority, who have not revoked their designation of a bargaining agent, would be subversive of the mode of collective bar- gaining which the statute has ordained, as the Board, the expert body in this field, has found. Such conduct is therefore an interference with the rights guaran- teedby §7 and a vir^tion of §8(1) of the Act. It follows, therefore, since an object of the picketing was in protest of the Employer's unfair labor practices, the picketing for such object was not proscribed by Sec- tion 8(b)(7)(A). However, the General Counsel, relying on the Blinne case, supra, but without reference to any specific language therein, argues that the Trial Examiner may not consider the unfair character of the picketing because a "meritorious charge alleging same" has not been filed. Unfair labor practice strikers "do not lose their status and are entitled to reinstatement with backpay, even if replacements for them have been made." Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278. Moreover, where an economic strike has been converted into an unfair labor practice strike as in the instant case an employer is likewise obligated to reinstate "unfair labor practice strik- ing employees upon their unconditional offers to return to work."13 Philip Carey Manufacturing Co.,,Miami Cabinet Division v. N.L.R.B., 331 F.2d 720, 729 (C.A. 6). The Trial Examiner finds nothing in the Act or in the legislative history of the Act where the intent is expressed that unfair labor practice strikers shall be ousted from their right to continue peaceful picketing against un- remedied unfair labor practices or that they shall lose their status as unfair labor practice strikers because a "meritorious charge" alleging unfair labor practice has not been filed with the Board where, as here, competent and undisputed evidence established that unfair labor practices have been committed against which the picket- ing is directed. Indeed in National Packing Company, 18 Had the Employer not instituted this policy it seems likely that all the Supreme Court said: "Within this definition [Section 2(3) of the Act] employees may have returned to work by April 30, 1965, since their pur- the strikers remained employes for the purpose of the Act and were pro- pose in approaching Superintendent Forrest was "to come back to work." tected against the unfair labor practices denounced by it." 13 In N L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345, 308-926 0-70-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., supra, the respondent employer was allowed to urge an 8(b)(7) defense against an alleged 8(a)(1) violation although it did not appear that a meritorious charge had been filed alleging a violation of Section 8(b)(7). The General Counsel's theory leads to the specious conclusion that employees striking against the unfair labor practices of their employer, even though such unfair labor practices are provable, are not permitted the protec- tion afforded to unfair labor practice strikers unless and until a "meritorious charge" has been filed. The em- ployees in the instant case were unfair labor practice strikers by reason of their strike against their Employer's unfair labor practices and remained unfair labor practice strikers even though a "meritorious charge" was not filed with the Board.14 The Trial Examiner finds nothing in the Act which limits the period during which unfair labor practice strikers may continue to strike or picket or bars them from a return to work upon an unconditional offer. Unfair labor practice strikers are apparent favorites of the law whose rights are not to be cut off except upon specific statutory direction. (See Mastro Plastics Corp. v. N.L.R.B., supra.) The Trial Examiner finds none. "Nor may we forget that the interests to be protected are primarily those of employees ...." Philip Carey Mfg., Co., Miami Cabinet Division v. N.L.R.B., supra, 735. Under the circumstances of this case the failure of the Union to file unfair labor practice charges ought not to work a forfeiture of employees' statutory rights. An employer's refusal to reinstate unfair labor practice strikers is an unfair labor practice. Rangaire Corporation, 157 NLRB 682, footnote 11. Blue Diamond's employees continued as unfair labor practice strikers throughout the periods herein involved and as unfair labor practices strikers exercised a protected right to picket in protest of the unfair labor practices against which they were striking until such time as the unfair labor practices were remedied. Picketing for such purpose does not fall within the proscription of Section 8(b)(7)(A) and may not be enjoined. Second: In addition to proving that an objective of the picketing was for recognition or organization, the General Counsel must also prove, in order to establish a 8(b)(7)(A) violation, that the picketing was not on behalf of a labor organization "currently certified as the representative of such employees." The General Counsel concedes that the picketing was on behalf of "the District and/or International." 15 The International was certified as bargaining represent- ative on January 16, 1964. Blue Diamond's employees left their jobs on April 27, 1965. Had the strike been an 14 President Beane testified that charges were not filed with the Board. 15 It is alleged in the consohdated complaint that " . Respondents have picketed, and caused to be picketed.. 16 The General Counsel apparently recognized this proposition of law since he cited the following language from the case: "However, after the first year if the certificate has elapsed, though the certificate still creates a presumption as to the fact of majority status by the union, the presump- tion is at that point rebuttable even in the absence of unusual circum- stances." 17In this regard the General Counsel has not brought to the Trial Ex- aminer's attention the specific evidence on which he may rely for rebutting the presumption. economic strike these employees, who exceeded the returned strikers and striker replacements in number, would have been included with those employees eligible to determine the majority status of the International until April 28, 1965, pursuant to Section 9(c)(3) of the Act. Thus, prior to April 29. 1965, the International's certifi- cation was current and valid. The General Counsel does not claim otherwise but asserts that the International "was not `currently certified' on April 30, 1965 within the meaning of 8(b)(7)(A)." Whether the International lost its current certification, of course, depends upon whether the presumption as to the fact of its continued majority status created by the certification is rebutted by "com- petent evidence." See Celanese Corporation ofAmerica, 95 NLRB 664, 672.16 It becomes pertinent therefore to examine the record to determine whether the evidence adduced rebuts the presumption. 17 The Trial Examiner is of the opinion that the presump- tion as to the fact of the majority status by the Interna- tional created by the certification has not been rebutted by competent evidence. Of controlling importance in reaching this conclusion are the following factors. (a) On April 30, 1965, the unfair labor practice strikers referred to above exceeded the number of returned strikers and striker replacements. (b) Competent credible evidence is lacking to prove that a majority of the working employees of Blue Diamond had designated a labor union other than the In- ternational as their bargaining agent on April 30, 1965. Dewey Goodson, a member of the Southern Labor Union, obtained two or three packages of the blank designation cards from the Southern Labor Union at Cumberland, Kentucky, sometime in January 1965. These cards were distributed to Blue Diamond em- ployees. Goodson testified that cards were signed on the job. In soliciting signatures Goodson told the employees that "if there wasn't a union in the plant they would have to quit."18 Designation cards for the Southern Labor Union which were offered into evidence were identified by Blue Diamond's Office Manager Keen as cards which were submitted to the Employer on April 30, 1965. Relying on these cards, Blue Diamond recognized the Southern Labor Union.19 For the purpose of authenticating the cards Keen testified that he "checked each individual signature against the signatures that were in the personnel file of each individual." Out of the 120 cards submitted he rejected 4 or 5 "because their signature didn't appear to be authentic according to their signature in the personnel file."20 Keen testified that he possessed no "special train- 18 While there is some ambiguity in Goodson 's testimony he gave em- ployees the impression that if they did not choose the Southern Labor Union they would lose their jobs. Thus there is an unresolved question in the record as to whether the cards represented the uncoerced desires of the signatories 19 The fact that Blue Diamond may have recognized the Southern Labor Union in good faith is immaterial as proof of the loss of Interna- tional's majority status See International Ladies' Garment Workers' Union, AFL-CIO [Bernhard Altmann] v N.L.R.B., 366 U.S. 731,738 E0 Keen did not recall which cards he had considered bore authentic signatures. LOCAL NO. 8280, UMW 'ing as far as handwriting, reading handwritting and so forth is concerned. " 21 Keen testified that he did not check the dates appearing on the cards.22 Some of the cards bore dates later than April 30, 1965; some cards were of employees whose names did not appear on the Em- ployer's April 30 payroll. After Keen checked the cards they did not remain in his custody or control. While Keen identified the cards as those which he had examined on April 30, 1965, he did not, at the hearing, pass upon the authenticity of the signatures appearing upon them. The General Counsel offered no other proof of the validi- ty of the signatures appearing on the cards.23 It is clear that the cards were not self-authenticating; but proof was required to establish the validity of the signatures appear- ing on them. Indeed, Keen's apparent confusion on the witness stand in reference to the cards, the dispatch with which the cards were validated by the Employer and the speedy execution of the contract with the Southern Labor Union manifested a prior determination to recognize such Union rather than a desire to carefully consider the validi- ty of the signatures. Moreover, the Employer made no in- vestigation at all to ascertain whether the cards, which on their faces disclosed that a majority of them were ex- 21 Keen was asked under what circumstances-would his job have required him to review the authenticity of an employee 's signature He an- swered, "... I sign most of them up. Of course , I have seen them there sign their name at the time they signed up. Of course , if there is any question that conies up regarding the pay day , the pay day the man might have gotten, or the endorsement on a check I would always check it, and several times I've done that ; checked the signature against the signature of the man at the time he signed up." 22 A substantial majority of the cards produced at the hearing were dated January 21, 1965. 23 The record is barren of any authentic specimen signatures with which the Trial Examiner could have compared the signatures on the cards 279 ecuted in January, expressed the employees' desires on April. 30. It seems clear that the record as a whole does not disclose that the Employer engaged in careful crosschecking of well-analyzed employer records with the union authorizations. Moreover, the fact that the General Counsel produced no witnesses to authenticate the signatures, although it is apparent that such witnesses were available, raises doubts as to whether a majority of the signatures on the cards were in fact valid designations on April 30.24 Viewing the record as a whole the Trial Examiner finds that the proof adduced by the General Counsel is insuffi- cient to rebut the presumption as to the fact of majority status by the International created by the certification and that the International was "currently certified as the representative" of Blue Diamond's employees on April 30,1965 .25 RECOMMENDED ORDER The Respondent's motion to dismiss is granted and the consolidated complaint is dismissed. 24 " .. where the party on whom rests the burden of evidence as to a particular fact has the evidence within his control and withholds it, the presumption is that such evidence is against his interest and insistence " N.L.R.B. v. Ohio Calcium Company, 133 F.2d 721,727 (C.A 6) 25 The Trial Examiner has considered immaterial any reference to the contract executed on May 5, 1965, between the Southern Labor Union and Blue Diamond since the claim is that the picketing became unlawful on April 30, 1965. Moreover, the contract which was , on the basis of the record, executed by a minority union other than the certified union could not constitute a bar to a representation proceeding . CE Meadowsweet Dairy Farms, Inc., 158 NLRB 1044