UMW, District 2

UMW, DISTRICT 2 United Mine Workers of America ; United Mine Workers of America, District 2: and United Mine Workers of America, Local 6796 (Mears Coal Company) and Southern Labor Union United Mine Workers of America, and United Mine Workers of America, District 2 and Edward Mears, Charles Mears, Murray Martin and Earl Bence, Partners, d/b/a Mears Coal Company United Mine Workers of America, and United Mine Workers of America, District 2 and Southern Labor Union. Case 6-CB-1452, 6-CB-1463, and 6-CB-1465 November 8, 1968 DECISION AND ORDER BY CHAIRMAN MC CULLOCH AND MEMBERS FANNING AND BROWN On August 30, 1968, Trial Examiner Harry R. Hinkes issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Exam- iner's Decision. 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 these cases 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, the exceptions, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Exam- iner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the national Labor Relat- ions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondents, United Mine Workers of America; United Mine Workers of America, District 2; and United Mine Workers of America, Local 6796, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 665 HARRY R. HINKES , Trial Examiner: The complaint herein was issued on March 29, 1968, pursuant to a charge filed on December 18, 1967, by Southern Labor Union, hereinafter referred to as SLU, and served on all Respondents on December 18, 1967, a second charge filed on January 30, 1968, by Mears Coal Company and served on Respondent United Mine Workers of America, hereinafter referred to as UMW and Respondent United Mine Workers of America, District 2, hereinafter referred to as District 2, on January 31, 1968, and a third charge filed by SLU and served on Respondents UMW and District 2 on February 1, 1968 Respondents UMW and District 2, as well as Respondent United Mine Workers of America, Local 6796, hereinafter referred to as Local 6796, are alleged to have engaged in unfair labor practices affecting commerce by restraining and coercing employees of Mears Coal Company and other employers in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended, in violation of Section 8(b)(1)(A) of the Act. By answer duly filed Respon- dents denied the commission of any unfair labor practices. A hearing was held before me at Indiana, Pennsylvania, on May 14 and 15, 1968, at which all parties were represented and were afforded full opportunity to participate , examine witnesses, and adduce relevant evidence. Briefs have been received from each of the parties and have been given careful consideration. Upon the entire record in this proceeding I make the following: FINDINGS OF FACT 1. JURISDICTION Mears Coal Company, a partnership with its principal office at Marion Center, Pennsylvania, is engaged in the strip mining, processing, and nonretail sale of coal. Within the 12-month period immediately preceding the issuance of the consolidated complaint, Mears sold the shipped coal valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania from its facilities within the Commonwealth. Penn Hill Coal Corporation (herein called Penn Hill), a Pennsylvania corporation with its principal place of business in Indiana, Pennsylvania, is engaged in the mining and nonretail sale of coal. Within the 12-month period immediately preceding the issuance of the consolidated complaint, Penn Hill sold coal valued in excess of $50,000 to Mears. K & S Coal Company, Inc , Edward Mears, Charles Mears, Murray Martin and Earl Bence, partners, d/b/a Dixon Run Coal Company (herein called Dixon Run), a partnership with its principal place of business at Marion Center, Pennsylvania, is engaged in the mining and nonretail sale of coal. During the 12-month period immediately preceding the issuance of the consolidated complaint, Dixon Run sold coal valued in excess of $50,000 to Mears. Edward Mears , Charles Mears, Murray Martin, Earl Bence, Rocco Yanity, Anthony Yanity and Casmer Yanity, partners, d/b/a/ MY Coal Company (herein called MY), a partnership with its principal place of business at Indiana, Pennyylvania, is engaged in the mining and nonretail sale of coal. During the 173 NLRB No. 100 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 12-month period immediately preceding the issuance of the consolidated complaint, MY sold coal valued in excess of $50,000 to Mears. Joseph Peles and Nestor Peles, partners, d/b/a Peles Brothers Coal Company (herein called Peles Brothers), a partnership with its principal place of business at Glen Campbell, Pennsylvania, is engaged in the mining, processing, and nonretail sale of coal. During the 12-month period immediately preceding the issuance of the consolidated com- plaint, Peles Brothers sold coal valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. Edward Mears, Charles Mears, Murray Martin, Earl Bence, Harold Leasure, Russell Herby, and Robert E. Gilbert, partners, d/b/a Copper Valley Coal Company (herein called Copper Valley), a partnership with its principal place of business at Clymer, Pennsylvania, is engaged in the mining, processing, and nonretail sale of coal. During the 12-month period immediately preceding issuance of the consolidated complaint, Copper Valley sold coal valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. John Peles, Edward Mears, Charles Mears, Earl Bence, and Murray Martin, partners, d/b/a Chestnut Ridge Mining Com- pany (herein called Chestnut Ridge), a partnership with its principal place of business at Glen Campbell, Pennsylvania, is engaged in the mining and nonretail sale of coal. During the 12-month period immediately preceding issuance of the consolidated complaint, Chestnut Ridge sold coal valued in excess of $50,000 to Mears. Mears, Penn Hill, Dixon Run, MY, Peles Brothers, Copper Valley, and Chestnut Ridge are now, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, Respondent's answer admits, and I find that the UMW, District 2 and Local 6796 are labor organizations within the meaning of Section 2(5) of the Act The parties have stipulated that for the purposes of this proceeding, UMW and District 2 are to be considered as one and the actions and responsibilities of one are to be considered the actions and responsibilities of the other. III. THE UNFAIR LABOR PRACTICES A. The Events of December 17 The SLU called a meeting of all of its area members, consisting of seven local unions which have collective- bargaining agreements with Mears, Penn Hill, Dixon Run, MY, Peles Brothers, Copper Valley, and Chestnut Ridge, for Sunday, December 17, at 2 p.m. at the Consolidated School building in Home, Pennsylvania. Melicher Joseph Plavi, an employee of Chestnut Ridge and vice president of SLU Local 253, picked up the keys for the school building and drove there shortly after 1 o'clock. Upon arrival he saw about 100 cars and several hundred United Mine Workers' members in the road and parking area around the school building. He unlocked the door and went into the building. He became frightened and left to call Bill Bell, a vice president of SLU. Although Plavi testified that he did not recognize any officials of UMW there, he added that he saw one Kanapic whom he assumed was a UMW local president as well as Tom Simpson whom the parties have stipulated to be the president of Respondent Local 6796 and an agent thereof. As Plavi was leaving the school, Kanapic told him "Joe, you better not have this meeting." When Plavi replied that he intended to hold it, someone else, unidentified, said "Goddamned if you will." Plavi returned to the school a short time later and this time saw some 20 SLU men there. As Plavi ascended the nine steps from the ground to the school door, Simpson "hollered" "we will run you back to Tennessee with the rest of the bunch." Others in the crowd also hollered but someone told him to "go ahead and hold your meeting." Plavi unlocked the school door and 8 or 10 of the SLU men walked in Plavi remained on the outside platform at the top of the steps holding a tape recorder in his hands. Some 12 or more men started crowding him and "pawing" at him. Someone unplugged his tape recorder, two men grabbed him while another hit him in the back of his head. Although Plavi was unable to identify any of the 12 men that crowded around him at the time, he did recognize Mike DeGretto, stipulated to be an international representative of UMW and director of organization of District 2 and an agent of both Respondents, standing on the fourth step up. Simpson was about 25 feet to the right of Plavi. Plavi fell to the floor from the force of the blow and remembers but indistinctly the events which followed. It appears that he got up, went to his car, drove some 2'h miles to the home of Edward Mears who then took him to a hospital where Plavi remained for 9 days. Later he required an additional 7 days hospitalization and since then has worked only part time. Plavi further testified that his suit coat and shirt were ripped from the top to the bottom during the assault upon him at the top of the school steps. William Rice, an employee of Copper Valley and president of SLU Local 245, also came to the Consolidated School on December 17. His testimony was essentially corroborative of Plavi's. He added that two men whom he recognized as UMW organizers spoke to him at the school and told him there would not be any other union in the area, only the UMW He further testified that men in the crowd told him not to go into the school building and hollered "scab." He entered the school, stayed for a few rrunutes, and came out again. As he returned to the platform, he saw someone "clawing" at Plavi. Then he saw Plavi hit on the head and fall down. When Plavi got up, he told Rice there would be no meeting. Some voices in the crowd asked if anyone else wanted some of the same and Tom Simpson said he was going to send them all down South with the SLU organizers. Simpson, in his testimony, did not deny the statements attributed to him by Plavi and Rice. Charles Bash, a SLU member at Peles Brothers, also corroborated the foregoing testimony. He, too, came to the school shortly before 2 p.m. on December 17, and found such a large crowd there that he had to park some 200-300 feet away. These were UMW workers and among them were DeGretto, Simpson, and Telk, stipulated to be a representative and agent of District 2. After a while he saw some SLU men standing and he went up to them. When Plavi unlocked the school door, he and some of the SLU men started to enter. Four or five UMW workers standing at the foot of the steps said, "Don't let them go in" and then added "Oh, let them go in they aren't going to have a meeting anyhow." Bash and the other men entered the school building but as they heard noises becoming louder outside came out again and saw Plavi being UMW, DISTRICT 2 hit and falling down. Bash could see DeGretto standing near the foot of the steps at that time but heard no one objecting to Piavi being struck or attempting to stop anyone from hitting him. On the contrary, he heard someone in the crowd say "Go ahead, give it to him" and the man that stuck Plavi said, "There is your follower. Does anybody want to step out and take it?" After a couple of minutes Plavi got up and told the SLU men to go home, "there won't be no meeting held." Bash drove away in his car but shortly thereafter drove back again and found 100 to 200 men still standing around. Simpson testified that on December 17, Local 6796 held a Christmas party in Clymer, Pennsylvania. There he heard that the SLU was going to have a meeting at the Home Station, otherwise referred to as the Consolidated School at Home, Pennsylvania. He decided to go over to talk to the SLU men about the United Mine Workers of America. He denied that there was any discussion among the UMW workers at the Christmas party concerning the SLU meeting and denied knowing whether any of them followed him to the school from Clymer He adirutted, however, that maybe one carload of his members showed up at the Consolidated School He categorically denied taking 47 of his fellow members to the school. Corporal Thomas Hudock of the Criminal Investigation Unit of the Pennsylvania State Police, assigned to investigate the December 17 incident at the Consolidated School, testified that he interviewed Simpson on December 29, and that Simpson told him that they had a short meeting at Clymer and that 47 of his people went with him to the school. In addition, Stanley Yackuboskey, a member of Local 6796, testified that at the meeting at Clymer a motion was made by Simpson to go down to the Consolidated School The motion was seconded and it was voted to go down He estimated that "around 30 and maybe a few more than that" went to the school. He, too, saw Plavi being hit by someone and falling down Despite the denials of Simpson, I credit the testimony of Corporal Hudock and Yackuboskey and find that at the instigation of Simpson, Local 6796 at its December 17 Christmas party in Clymer, Pennsylvania decided to go down in a group to the Consoli- dated School and did so. Counsel for the Respondents, nevertheless, urges the dis- missal of this allegation of the complaint citing the testimony of DeGretto to the effect that he invited the SLU men to hold their meeting in the school building and that no one impeded the ingress or egress of the SLU men on December 17 As for the assault on Plavi, he cites the lack of proof that it was committed by a member of any of the Respondents Moreover, he argues that Plavi incited the assemblage in the immediate area of the platform when he offered to use the tape recorder to take the statements of anyone who wished to give it. Finally, he cites the testimony of DeGretto to the effect that he told the crowd of men to leave and that they thereupon did leave the school grounds DeGretto, however, could not remember whether he told the UMW workers to leave before or after Plavi had been struck. No one corroborated DeGretto's testimony in this respect. Indeed, witness Bash denied hearing any one trying to prevent the assault on Plavi, witness Yackubosky, a United Mine Worker, saw neither DeGretto nor Simpson make any effort to disperse the crowd, and Corporal Hudock testified that although DeGretto told him that he invited Plavi to have his meeting, DeGretto said nothing to him about trying to stop anything or to disperse the men that had congregated around the school building I conclude and find, therefore, that neither DeGretto nor Simpson made any effort 667 to prevent the assault on Plavi or to disperse the United Mine Workers that had assembled around the school grounds, at least, until after the SLU men had left. B The Events of January 30, 1968 Mears operates a cleaning plant, tipple, scale house, and railroad siding in Dixonville, Pennsylvania. Coal is trucked into this location where it is weighed, processed, and loaded onto railroad cars for shipment The only way the trucks delivering the coal to the Mears operation can enter the operation is to travel by way of State Route 223, to where it intersects with Township Road. The Mears scale house is located on the Township Road 80 to 100 feet from the intersection of State Route 223 and the Township Road On State Route 223 about 150 feet from its intersection with the Township Road is an old abandoned office building which had been damaged by dynamiting some time previously. Both the Township Road and State Route 223 are public thoroughfares, the Township Road being 25 feet wide and State Route 223 30 feet wide with a 50-foot right of way. 1. The case of the General Counsel Charles Mears, a partner in Mears, testified that they had had continuous telephone calls from the State police to expect "an accumulation" of men around their plant on January 29 or 30. Nothing happened on January 29, however On January 30 at 6 a.m., Charles Mears was in Clymer, Pennsylvania, where he saw men congregated on a corner. He telephoned partner Bence at the tipple and advised him that UMW men were gathering for a mass picket on their operations. He then left Clymer and went to the tipple where he arrived about 7 a in. About 8 a.m six cars containing about 23 men arrived down Route 223. Within 15 or 20 minutes the crowd had grown to between 75 and 100 and had started moving up the Township Road, blocking it. Charles Mears came out of the scale house then and walked towards them. The men were shouting and, according to Charles Mears, "threatening." Someone said, "You sons-of-bitches brought the Southern Labor Union in and we are going to send them back to Tennessee." According to Mears' quality control engineer, John Meehan, 25 men surrounded the scale house. Charles Mears asked to speak to someone and the men selected Telk to represent them. Bence suggested that they go into the scale house to talk and he, Charles Mears, Telk, and two other UMW men, whom Telk introduced as local presidents, went in. According to Charles Mears, he then asked them what they wanted and in turn was asked what Mears was going to do about the SLU Charles Mears explained that they had a contract with SLU and couldn't do anything about it. Telk, however, was not satisfied with this answer and demanded that Mears become "members" of the United Mine Workers of America. He added that if Mears didn't "these men are old style coal miners " One of the other UMW representatives told Mears they would send the Southern Labor Union back to Tennessee by any means adding, "You are not going to shut down temporarily, you are going to shut down permanently until you become a member of the United Mine Workers." During this conversation two employees of Mears were in the scale house as well as the five men previously mentioned, and it may be presumed that they overheard this conversation inasmuch as the scale house is an unpartitioned structure only 20- or 24-feet square. The 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation ended and as the men left the scale house one of the picketers noticed a gun lying on the back seat of Charles Mears' automobile parked in front of the scale house. Some of the men then tried to get into the car, rocking it, and trying to pry the doors open. A sheriff who was present made them move away. Someone else then noticed the presence of armed guards which Mears had maintained since January 17 when the old office building was dynamited. Some of the picketers then shouted that they would get guns and come back and fight. Telk then ordered the men to leave, whereupon the crowd drove off to Clymer. Charles Mears then ordered his employees to leave the property and they did. Charles Mears denied that there were any threats of assault or harm to the employees, "only in general." He explained his answer saying that the picketers in the presence of the Mears employees made such threats as, "We will blow the place off of the map," "You sons-of-bitches will get sent back to Tennessee," "You will either become United Mine Workers or we will get even." Bence's testimony was substantially corroborative of that given by Charles Mears. He added that after everyone else had left on the morning of January 30, he, too, left but came back again around 10 a in with Meehan. As he did so, he noticed approximately 400 people standing around on both sides of State Route 223, as well as 50 to 75 people standing on the Township Road, blocking it. He made no attempt to go to the tipple but continued on State Route 223. It took him about 5 minutes to go some 600 or 700 feet, due to the crowd of people on the road. As he drove by, he saw some of the men burning down the old dynamited office building. Meehan's testimony was also corroborative of that given by the other witnesses for the General Counsel According to him, when the men assembled on State Route 223 and the Township Road for the first time, there was "a lot of talking and then it became yelling and hooting and swearing," and the Township Road was blocked, "a standing room only situ- ation " He, too, saw the crowd of men adding wood to the fire that was burning in the old office building when he returned with Bence. 2. The case of the Respondents Bruno Telk testified on behalf of the Respondents con- cerning the events of January 30. He testified that on January 29, at 9.45 in the evening, Judge Clark of the Court of Common Pleas of Indiana County, Pennsylvania, telephoned him and told him that he would hold Telk responsible if "anything goes on" regarding an impending mass picketing in the Clymer area. Telk replied that if there were any pickets in the morning he would try to disperse them. The next morning at 7 a.m. he heard over the radio that a mass of men were assembling in Clymer. He drove to Clymer, parked his car, and as he was walking was picked up by three men in a car. At Telk's suggestion the car was driven to the Mears' tipple where he found a group of men who told Telk that they were picketing Many more men arrived as well as State troopers. Hearing a report that there were snipers in the Mear's buildings, he and other men walked up the Township Road and complained to the sheriff who was present about the armed men as well as dogs on the premises. Telk admitted that the men were hollering but, according to him, they were hollering for the sheriff. Telk then met with Charles Mears and Bence, taking with him two local presidents. According to Telk, Charles Mears told him that the tipple would not operate as long as the men were picketing, to which Telk replied, "That is not going to satisfy them. They want you to get rid of the Southern Labor Union," adding "They are old coal miners. They are not going to stand for this Southern Labor Union here and they want you to get rid of the Southern Labor Union." Telk denied any knowledge of threats or violence although he admitted that he saw fire at the old office building and told the men, "You should not have put that thing on fire, whoever done it " Telk's first effort at dispersing the men at the Mears' tipple or along State Route 223, by his own testimony, was after he found the old office building on fire. He made no mention of any attempt to disperse the men while they were yelling or demanding the ouster of the SLU, or crowding the Township Road or State Route 223. On balance I credit the testimony of Charles Mears, Bence, and Meehan concerning the events of January 30 and find that ingress and egress for the Mears' operations was impeded by the crowd of men that congregated on January 30, that the crowd of men threatened violence within the hearing of Mears' employees as well as management officials and that it engaged in violence in the burning of Mears' old office building. Although these men did not prevent anyone from leaving the Mears' operation, I note that the Mears' employees were released from their work only after the pickets had left Similarly, although the men did not prevent anyone from coming to the Mears' operation, their blocking of the access roads made it necessary for Mears to notify their suppliers not to attempt deliveries. C. Conclusions I conclude that UMW, District 2, and Local 6796 violated Section 8(b)(1)(A) of the Act in the events of December 17, 1968, at the Consolidated School and that UMW and District 2 violated Section 8(b)(1)(A) of the Act in the events at the Mears' tipple on January 30, 1968. Section 8(b)(1)(A) of the Act provides: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 ... Section 7 of the Act states. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities . . I have found that DeGretto, an official of UMW and District 2, as well as Simpson, an official of Local 6796, was present when the crowd of men assembled at the Consolidated School on December 17. Simpson himself told the SLU men there that they would "run them back to Tennessee." Both Simpson and DeGretto were present when Plavi was struck. There is no evidence that either DeGretto or Simpson made any attempt to disperse the crowd at the school until after Plavi had been struck. Nor is there any evidence that either man discouraged the utterance of threats creditably testified to by witnesses called on behalf of the General Counsel. Moreover, it is clear that the presence of Local 6796 members as well as its president, Simpson, was pursuant to formal action taken at a meeting of that Local earlier that day. Counsel for the Respondent seeks to draw a distinction between this case and other cases, pointing out that other cases UMW, DISTRICT 2 669 had established picket lines and an actual blocking of ingress to employees I do not understand the case law to support that argument. In United Mine Workers of America Local No. 7083 (Grundy Mining Company), 146 NLRB 176, the Trial Examiner's decision, approved by the Board, declared: When men are massed so that employees in order to get to work must, in effect run a gauntlet, this in itself without more, is coercive. American Steel Foundries v Tri-City Central Trades Council, 257 U S. 184 Although I have found that the described acts at Pocket Intersection, including the road blockage, did in fact take place and did in fact have a coercive effect on the Grundy employees and in fact prevented them from being able to get to work, such a finding is not essential to establish violation of Section 8(b)(1)(A) of the Act. It is sufficient to establish a violation of that section to show that the conduct of the Respondent union had a tendency-which of course it clearly did-to restrain or coerce the Grundy employees, without requiring them to attempt to get to work at the risk of their lives or even lesser peril. The Act does not require proof that coercive conduct had its desired effect. N.L.R.B. v. Wilbur H. Ford, d/b/a Ford Brothers, 170 F.2d 735, 738 (C.A. 6). [Emphasis supplied ] Although the gauntlet established by the UMW members was not at the place of employment of the SLU members, there is no reason why, by a parity of reasoning, it cannot be said that the establishment of such a gauntlet at a meeting place of workers would not have the tendency to restrain or coerce such SLU members in their organizational activities. Moreover, the assault on Plavi was, of course, an act of violence. Respondents argue, however, that Plavi's "inciting language" incited the assemblage. I do not agree. The so-called inciting language used by Plavi, even according to Respon- dent's witness, DeGretto, was simply "if anybody here wants to make a statement, I have a tape recorder here. I will be glad to take your statement." I fail to find any incitement in such language. Nor does the fact that the identity of the actual assailant is unknown relieve the Respondents from their responsibility in this matter. In the same Grundy case supra, the same argument was answered. This contention, however, ignores the fact . that at least a substantial proportion ... of the mob consisted of their [Respondents'] own members. Since Respondent's mem- bers concededly constituted a major presence in and component of the mob, it defies belief that, under the circumstances described, each and every one of Respon- dent's members remained stolid, while unidentified alien elements at their sides and all around them were the only persons who engaged in disorderly activities .... In mob action, the acts of one may in legal contemplation justifiably be regarded as the acts of all My views with regard to the culpability of Respond- ent ... are reinforced, and if need be would find independ- ent support for my fact findings, in the presence, activities, and omissions to act there of various of its officials, who can hardly be regarded, other than by the excessively naive, as having been there as neutral observers or for sterile onlook. [Emphasis supplied.] See also United Mine Workers of America, Local No. 7244 (Grundy Mining Company), 146 NLRB 244, where the Board adopted the decision of the Trial Examiner who stated. Respondent's responsibility for these acts and threats flows from its purposeful participation therein through substantial numbers of its members, including its off- icials ... as well as from the failure of those officials, who were present, in any way to prevent or dissuade the membership from participation therein or in any way to disassociate Respondent therefrom or to disavow responsi- bility therefor. As aptly stated by the court in United States v. International Union, United Mine Workers of America, 77 F.Supp. 563, affirmed in part and appeal dismissed 177 F 2d 29 (C A D.C ), cert denied 338 U.S 871 " .. as long as a union is functioning as a union it must be held responsible for the mass action of its members." This may even be true where the specific acts perpetrated are unauthorized . This liability may even extend to acts in pursuance of union interests, although the acts have been expressly forbidden by it. [Emphasis supplied ] The events in this proceeding bear a remarkable resem- blance to the events of the two Grundy mining cases cited above, which, incidentally, involved the same UMW and SLU, and which dictate the result found herein. See, also, Dressmakers Joint Council (Susan Evans, Inc.), 146 NLRB 559, 569, Teamsters Local 783 (Coca-Cola Bottling Company of Louisville), 160 NLRB 1776, International Ladies' Garment Workers Union (F R. Knitting Mills), 145 NLRB 10; Local 5881, UMW (Grundy Mining Company), 130 NLRB 1181 Much the same can be said of the events of January 30, 1968, at the Mears' tipple Counsel for the Respondents argues for dismissal of this allegation of the complaint arguing that the assemblage was on public roads open to the general public and that there was no impeding of progress of any persons attempting to gain access to the Mears' property or leaving that property. I find this argument unsubstantiated by the record. The fact that the highway is open to the general public does not confer license upon some individuals to block it Moreover, even if such individuals did not succeed in blocking the highways but only in establishing a gauntlet for the Mears' workers and supphers to run, such action would, as found earlier, constitute coercion of the employees. In addition, the only reason the Mears' employees were not impeded in their attempt to leave the Mears' premises was the fact that they made no attempt to leave while the pickets were assembled on the road but did so only after the pickets had left and then on the express instruction of Mears' management in order to avoid further difficulties. Similarly, although the suppliers made no attempt to deliver coal to the Mears' tipple, it cannot be said that their access to the Mears' tipple was unimpeded inasmuch as they, too, were instructed not to attempt deliveries when it appeared that the UMW men had blocked the highway. Counsel for the Respondent also argues that the threats uttered by various individuals congregated around the tipple were "instigated" by Mears when it placed armed guards in view "which was an open threat to violence or injury to the assemblage." Admittedly, Mears had employed armed guards at its operations since January 17 when its old office building had been dynamited. No witness testified, however, to having seen any armed guards at Mears on January 30 when the mass picketing occurred. The only witness called on behalf of the Respondents to testify regarding that incident, Bruno Telk, stated that some men, unidentified, told him there were a couple of men in the building looking out with shotguns or rifles. He complained to the sheriff who was present, and the latter called two men out of the building. Accepting Telk's testi- 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony in this respect, it would appear that the "instigation" by armed guards was eliminated when the two men left the building at the command of the sheriff Nevertheless, according to Telk, the mass picketing and threats by the UMW continued, and, even much later, the office building was burned. I cannot accept, therefore, Respondents' argument of instigation. To accept it would mean that anyone who posts an armed guard on his own property after experiencing some violence there, is guilty of inviting further violence by wrongdoers. Moreover, the presence of armed guards does not necessarily mean that the Mears' employees were thereby rendered immune to fear and intimidation as a result of the threats and pressures generated during UMW's mass picketing. National Organization of Masters, Mates, and Pilots of America, Inc. (J. W. Banta Towing Company, Inc), 116 NLRB 1787. Finally, even if we assume, arguendo, that the Respondents did not actually block ingress or egress, such finding would not alter the result. It is not the success of the attempted coercion that is determinative of an 8(b)(1)(A) violation The behavior of the UMW men at the Mears' tipple was reasonably calculated to deter the Mears' employees from their work. Its inefficacy in this particular instance is no defense. Interna- tional Longshoremen's and Warehousemen's Union (Sunset Line and Twine Company), 79 NLRB 1487, 1505. CONCLUSIONS OF LAW 1 Respondents UMW, District 2, and Local 6796 violated Section 8(b)(1)(A) of the Act in restraining and coercing the employees of Mears and others by their threats of violence and acts of violence at the Consolidated School in Home, Pennsyl- vania, on December 17, 1967. 2 Respondents UMW and District 2 violated Section 8(b)(1)(A) of the Act by restraining and coercing the employees of Mears with threats of violence and acts of violence at the Mears' tipple on January 30, 1968. THE REMEDY Having found that the Respondents have engaged in unfair labor practices violative of Section 8(b)(1)(A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as the activities of the Respondents indicate a flagrant disregard for the statutory rights of employees protected by Section 7 of the Act, with no sign of any abatement in the future, it will be recommended that the Respondent cease and desist not only from the unfair labor practices found but also from infringing in any other manner upon the rights guaranteed in Section 7 of the Act At the request of counsel for the General Counsel the notice that will be required to be posted will be expressed in simple and readily understandable language in accordance with Harry F. Berggren & Sons, Inc., 165 NLRB No. 52, Bilyeu Motor Corp., 161 NLRB 982 I find insufficient warrant, however, for departing from the usual remedies for unfair labor practices as requested by counsel for Charging Party Mears. See International Union of Operating Engineers, Local 513 (Long Construction Company), 145 NLRB 554, 556; International Hod Carvers, Building and Common Laborers Union of America, Local 916 (Owen Langston). 145 NLRB 565. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that A. United Mine Workers of America, and United Mine Workers of America, District 2, their officers, agents, and representatives, shall* 1. Alone or in concert with others, cease and desist from: (a) Instigating or participating in violence or threats against employees of Mears Coal Company, Penn Hill Coal Corpo- ration, K & S Coal Company, Inc, MY Coal Company, Peles Brothers Coal Company, Copper Valley Coal Company, or Chestnut Ridge Mining Company to prevent them from meeting or from otherwise exercising their right to organize, form, join, or assist Southern Labor Union or any other labor organization (b) Blocking or attempting to block the employees of Mears Coal Company from corning to work or leaving work in order to discourage said employees from joining or assisting Southern Labor Union or any other labor organization (c) In any other manner restraining or coercing employees of the aforementioned employers in the exercise of rights guaranteed by Section 7 of the Act 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at the offices and meeting halls of each Respon- dent copies of the attached notice marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for Region 6, after being duly signed by both Respondents' representatives, shall be posted by the Respondents immedi- ately 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) Mail signed copies of the notice to the Regional Director for Region 6 for posting by Mears Coal Company, each of the other employers listed above, and Southern Labor Union, said employers and Southern Labor Union being willing, at all locations where notices to their employees or members are customarily posted. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision,2 what steps have been taken to comply herewith. B. United Mine Workers of America, Local 6796, its officers, agents, and representatives, shall. 1. Alone or in concert with others, cease and desist from: (a) Instigating or participating in violence or threats against employees of Mears Coal Company, Penn Hill Coal Corpo- I In 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 In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 2 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " UMW, DISTRICT 2 671 ration, K & S Coal Company, Inc., MY Coal Company, Peles Brothers Coal Company, Copper Valley Coal Company, or Chestnut Ridge Mining Company to prevent them from meeting or from otherwise exercising their right to organize, form, join, or assist Southern Labor Union or any other labor organization (b) In any other manner restraining or coercing employees of the aforementioned employers in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Post at the offices and meeting halls of the Respondent copies of the attached notice marked "Appendix B "3 Copies of said notice, to be furnished by the Regional Director for Region 6, after being duly signed by Respondent's represen- tative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for Region 6 for posting by Mears Coal Company, each of the other employers listed above, and Southern Labor Union, said employers and Southern Labor Union being willing, at all locations where notices to their employees or members are customarily posted (c) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision,4 what steps have been taken to comply herewith. found that we violated the law and has ordered us to post this notice and keep our word about what we say in this notice. The Act gives all employees these rights To organize themselves To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things We have also been ordered to assure our members, the employees of the above-named employers and members of the Southern Labor Union, that WE WILL NOT do anything that interferes with these rights WE WILL NOT threaten violence for failure to join our Union. WE WILL NOT commit acts of violence to force anyone to join our Union WE WILL NOT interfere with the meetings of the mem- bers of any other union. WE WILL NOT block or attempt to block the employees of Mears Coal Company from coming to work or leaving work in order to discourage said employees from joining or assisting Southern Labor Union or any other labor organi- zation. Dated 3 In 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 In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES OF MEARS COAL COMPANY, PENN HILL COAL CORPORATION, K & S COAL COMPANY, INC., MY COAL COMPANY, PELES BROTHERS COAL COMPANY, COPPER VALLEY COAL COMPANY, AND CHESTNUT RIDGE MINING COMPANY AND TO ALL MEMBERS OF THE SOUTHERN LABOR UNION Pursuant to the Recommended Order of a Trial Examiner 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 After a trial in which both sides had the opportunity to present their evidence the National Labor Relations Board has UNITED MINE WORKERS, UNITED MINE WORKERS, DISTRICT 2 (Labor Organization) 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 persons have any question concerning this notice or compliance with its provisions, they may communicate direc- tly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Tele- phone 644-2977. APPENDIX B NOTICE TO ALL EMPLOYEES OF MEARS COAL COMPANY, PENN HILL COAL CORPORATION, K & S COAL COMPANY, INC, MY COAL COMPANY, PELES BROTHERS COAL COMPANY, COPPER VALLEY COAL COMPANY, AND CHESTNUT RIDGE MINING COMPANY AND TO ALL MEMBERS OF THE SOUTHERN LABOR UNION Pursuant to the Recommended Order of a Trial Examiner 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* After a trial in which both sides had the opportunity to present their evidence the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and keep our word about what we say in this notice. The Act gives all employees these rights To organize themselves 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things We have also been ordered to assure our members, the employees of the above-named employers and members of the Southern Labor Union, that: WE WILL NOT do anything that interferes with these rights. WE WILL NOT threaten violence for failure to join our Union. WE WILL NOT commit acts of violence to force anyone to join our Union WE WILL NOT interfere with the meetings of the mem- bers of any other union. UNITED MINE WORKERS LOCAL 6796 (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 materials. If persons have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644-2977.