United Mine Workers of America, Dist. 12

UNITED MINE WORKERS OF AMERICA, DIST. 12 United Mine Workers of America, District 12, and United Mine Workers of America , (Truax-Traer Coal Company, et al.) and International Union of District 50 and Local 649, International Union of Operating Engineers, AFL-CIO Laborers Local 231 , Laborers International Union of North America, AFL-CIO and Chauffeurs, Teamsters and Helpers Local Union No. 15, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 38-CP-14, 38-CB-151, 38-CP-15, 38-CB-152, 38-CP-16, and 38-CB-153 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On February 25, 1969, Trial Examiner William W. Kapell issued his decision in the above-entitled proceeding, finding that the Respondent Unions had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also recommended that the complaint be dismissed insofar as it alleges other unfair labor practices not specifically found. Thereafter, the Respondent Unions filed exceptions and amended exceptions to the Trial Examiner's Decision, a supporting brief and an amendment to the supporting brief. The General Counsel 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 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 briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent Unions, United Mine Workers of America, District 12, and United Mine Workers of America, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASES' 213 WILLIAM W. KAPELL, Trial Examiner: Cases 38-CP-14, 38-CB-151, 38-CP-15, 38-CB-152, 38-CP-16, and 38-CB-153,2 proceedings under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, were heard in Peoria, Illinois, on October 23 and 24, 1968,' with all parties except Charging Party Chauffeurs, Teamsters, and Helpers Local Union No. 15, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereafter called Teamsters), participating pursuant to notice on a consolidated complaint' issued on September 18 by the Officer-In-Charge of Subregion 38 of the National Labor Relations Board, hereafter called the Board, alleging violations of Section 8(b)(1)(A), 7(A), and 7(C) of the Act by United Mine Workers of America, District 12 (hereafter referred to as District 12 and jointly with UMW as the Respondents). The complaint, in substance, alleges that, in violation of Section 8(b)(1)(A) of the Act, District 12 since about August 9 has restrained and coerced the employees of J. O. Lively Construction Company (hereafter referred to as Lively) and Kelly Railroad Contractors, Inc. (hereafter referred to as Kelly); that, in violation of Section 8(b)(7)(A) of the Act, District 12 since about August 15 has threatened to and has picketed Lively, objects being to force and require Lively to recognize and bargain with District 12 as the collective-bargaining representative of its employees, and/or to force and require said employees to accept District 12 as their collective-bargaining representative; and that, in violation of Section 8(b)(7)(C) of the Act, District 12 on about August 22 threatened to picket Kelly and, thereafter, on about August 26 picketed Kelly, objects being to force or require Kelly to recognize and bargain with District 12 as the collective-bargaining representative of its employees, and/or to force and require said employees to accept District 12 as their collective-bargaining representative; In its duly filed answer District 12 admitted certain jurisdictional and factual allegations of the complaint but denied that it is a labor organization or that it committed the alleged unfair labor practices. Said answer was also permitted to stand 'The above caption has been amended- to reflect the addition of "United Mine Workers of America," hereinafter referred to as UMW, as a Party Respondent pursuant to the General Counsel 's unopposed motion made during the hearing. The General Counsel also moved to amend the complaint by adding United Mine Workers of America , Local 7110, as a Party Respondent, claiming he had been misled by Respondents in his investigation of the case as to the identity of the alleged violators. Respondents opposed motion and ruling was reserved. The motion is hereby denied, said Local neither was served with process nor appeared at the hearing. 'Consolidated for hearing by order of the Officer-In-Charge for Subregion 38. 'All dates hereafter refer to the year 1968 unless otherwise noted. 'Based on charges filed on August 12 by International Union of Distract 50 (hereafter called District 50) in Cases 38-CP-14 and 38-CB-151; on August 28 by Local 649, International Union of Operating Engineers, AFL-CIO (hereafter called Operating Engineers) and Laborers Local 231, Laborers International Union of North America, AFL-CIO (hereafter called Laborers) in Cases 38-CP-15 and 38-CB-152; and on August 27 and September 17, respectively, by Teamsters in Cases 38-CP-16 and 38-CB-153. 177 NLRB No. 27 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on behalf of UMW, which, as appears above, was added as a Party Respondent. All parties appearing were accorded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Respondents and the General Counsel filed briefs which have been duly considered. On the entire record in the cases and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE At all times material herein, Lively, a West Virginia corporation with its principal place of business located in Beckley, West Virginia, has been engaged at Norris, Illinois, in the construction of a coal-processing facility (a tipple) of Truax-Traer Coal Company, hereinafter called Truax. During the past 12 months in the course and conduct of its business operations, Lively purchased goods valued in excess of $50,000 which were to be shipped to and used in a State other than that in which they were purchased, and also furnished services valued in excess of $50,000 to customers located outside the State of West Virginia. Respondents admit, and I find, that, at all times material herein, Lively has been engaged as an employer in commerce within the meaning of Section 2(6) and (7) of the Act. At all times material herein, Kelly, a Missouri corporation with its place of business located at St. Louis, Missouri, has been engaged near Norris, Illinois, in the construction of a railroad spur connecting the main line of the C B & Q Railroad with Truax's tipple at Norris, Illinois, and during the past 12 months in the course and conduct of its business operations purchased goods valued in excess of $50,000 located outside the State of Illinois which were thereafter shipped to jobsites located within the State of Illinois. Respondents admit, and I find, that at all times material herein Kelly has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondents do not contest, and I find, that UMW, its Local 7110 and District 50 are labor organizations within the meaning of Section 2(5) of the Act. The contention, however, is raised that District 12 is not a labor organization because it is claimed to be purely an administrative body in UMW and, therefore, does not fall within the definition of labor organization set forth in Section 2(5) of the Act. I find no merit in this contention. As appears, infra, District 12 is one of the component divisions or parts of UMW and represents the employees of UMW locals in the State of Illinois in their grievance procedure, when such grievances cannot be resolved at lower levels. It also appears that part of the dues of said employees in their respective locals is allocated to District 12, which in turn pays the salary of the board member of District 12 who represents employee-grievants at that level. Furthermore, the Board has held District 12 to be a labor organization within the meaning of the Act in numerous cases.' I, therefore, find that District 12 is a labor organization within the meaning of Section 2(5) of the Act. 'See, e.g., United Mine Workers of America, its District 12. et al (Perry Coal Company), 125 NLRB 1256. In addition, District 12, the 111. THE ALLEGED VIOLATIONS A. Background Prior to and at all times material herein, Truax has been operating a coal mine facility near Norris, Illinois. Truax, whose employees are represented by Local 7110 of UMW, is a member of the Illinois Coal Operators Association and operates its mine pursuant to the National Bituminous Coal Wage Agreement, which is in effect between UMW and said Operators Association, and the Wage Agreement and Working Conditions of District 12. District 12, a division or part of UMW, operates as a district entity at a level immediately below UMW throughout the State of Illinois. Its functions consist primarily of handling labor grievances which cannot be resolved at lower levels. It has a president and a secretary-treasurer, who are appointed by the National Officers of the UMW, and is itself divided into subdistricts 1, 2, 3, and 4 on a geographical basis. Each subdistrict has a board member, and in subdistrict 2, which covers the area in which Truax is located, Edward Lamm is its board member. His salary is paid to him by the secretary-treasurer of District 12 which receives its income from part of the membership dues of the Locals of UMW in its operating area. Grievances are handled as follows: In the event that Local 7110 is unable to resolve a grievance between it and Truax, it is referred to Lamm of subdistrict 2 for disposition. In the event he is unable to adjust it, the grievance is then referred to District 12 and, upon its failure to resolve the matter, it is referred to an arbitrator for final disposition. The National Bituminous Coal Wage Agreement provides, inter alia, in substance that the erection of stripping and coal loading machinery, the grading, laying, and ballasting of all tracks to the point where the shovel begins stripping coal and all other work necessary to complete the plant to produce and prepare coal, all being in the nature of construction work, shall be under the jurisdiction of the UMW. The Wage Agreement provides further that nothing in this section shall be construed as depriving the Operator of his right to contract such repair and/or construction work, with the understanding that the men employed on such work shall be or will become members of UMW. B. The Tipple Construction Project During the summer of 1968, Truax contracted with Lively to build a coal tipple on its premises. Prior thereto and on April 2, Lively had signed an agreement with District 50 whereby it became bound by the industrywide collective-bargaining agreement entered into between the Coal Mine Construction Contractors Association, Inc., and District 50 for the period June 1, 1967, to May 31, 1970. On August 8, James Smith, a field superintendent for Lively, and several of his employees, members of District 50, arrived at Norris, Illinois, to begin construction of the tipple for Truax. The following morning, Floyd A. Hobbs, the president of Local 7110, met with Smith and three of Respondent, in an ancillary case involving the subject matter herein brought by the Board in the United States District Court for the Southern District of Illinois, Northern Division, Civil No. T-3011, for a temporary injunction specifically admitted in its answer (G.C. Exh 4) that it is a labor organization within the meaning of Sections 2(5), 8(b), and 10(1) of the Act UNITED MINE WORKERS OF AMERICA, DIST. 12 his employees, members of District 50, near Lively's construction equipment which had been parked in the vicinity of the construction site. Joe Berta, division manager of Truax, was also present. Hobbs told Smith and his employees that the employees would have to join UMW to work in the tipple because Truax's contract with United Mine Workers required that any work done on Truax's premises must be performed by members of UMW. Smith replied that his employees were already members of District 50 but Hobbs insisted that they, nevertheless, would have to become members of UMW. On Tuesday, August 13, Hobbs and Edward Lamm' met Smith and four of his employees' where their equipment had been parked along the road near their jobsite. Lamm told them not to work until they got straightened out with the UMW. Smith requested permission to move the office trailer out to the site and either Hobbs or Lamm told him not to move it. On August 15 'Hobbs met Smith at a restaurant in Norris and asked what he intended to do. Smith replied that he was going to move his equipment to the jobsite, but Hobbs told him that he had better not. When Smith responded that he needed the equipment at the jobsite, Hobbs stated "if you move it, I'll shut the job down."' On Tuesday, August 20, Smith, Denny Hurst (a Lively employee), and Fred Westock, a representative of District 50, called upon Lamm at his home. Three UMW representatives were also present. They discussed the problem confronting Lively as to whether or not its employees would be permitted to work on the construction job, during which Lamm stated that he would have to consult Joe Shannon' about the matter and would call him on the phone. Lamm thereupon withdrew into his house and reappeared shortly, stating that he had called Shannon and was told that the Lively employees would have to join UMW to work on the tipple. On August 21 Smith moved his office trailer to the jobsite. The following day he met Hobbs and several men on the road to the jobsite. Hobbs protested that he had told him not to move the trailer and, when Smith replied he had been instructed to do so, Hobbs stated that he was going to come out and shut the job down. Smith then went on to the jobsite. About 15 minutes later Lamm and Hobbs together with about nine men visited the jobsite where Lamm told Smith that he wanted to talk to his employees to sign them up with UMW. Meanwhile one of the unidentified men, accompanying Lamm and Hobbs, and in their presence, asked the Lively employees who gave them permission to work. Another of these unidentified men told the Lively employees "you get your . off the job." Hobbs also stated that if he had to come back again to the job he would bring more men.'" On Friday, August 23, the Lively employees attended a meeting called by Hobbs and Lamm. Lamm asked 'An International representative of UMW as well as a board member of subdistrict 2 of District 12. 'Elijah Darnell, Gordy Thompson , Carl Miller, and Denny Hurst. 'The above findings are based upon the forthright credited testimony of Smith Hobbs equivocated in his testimony, stating at first that he would shut the job down, and then upon having the question put to him again, revised his answer by stating he would shut the mine down , not the construction job. 'An International representative of UMW, and, at all times material herein, acting president of District 12 "According to the uncontradicted testimony of Lloyd Biswell, an employee of Kelly, Lamm, in pressuring Kelly's employees to join UMW (see infra), told them on August 22 that he had had to run District 50 off the job that morning. 215 whether they wanted to join the UMW and, following a short discussion among them, they signified their agreement to do so, signed applications for membership, and paid their initiation fees and dues. On the morning of August 26, Smith met Hobbs and Lamm at a restaurant in Norris where they told him he could go ahead with his construction job. Upon proceeding to that job Smith and his employees observed about 200 men, including Hobbs and Lamm, standing on both sides of the road about a half a mile from their construction site. They, however, were not molested and proceeded to work on their job. During the following few days similar groups of men appeared at the same place but the number gradually decreased. Meanwhile Lively's employees continued working without interference or hindrance. C. The Railroad Spur Construction Job Kelly contracted with the C B & Q Railroad to build about 5-1/2 miles of track of which about 3-1/2 miles were to connect Truax's tipple with the C B & Q main line while the balance of about 2 miles was to consist of storage track on the railroad right-of-way. Kelly had no contract with Truax and its employee laborers, operating engineers, and teamsters are represented by the Laborers, Operating Engineers, and Teamsters, respectively. By August 22, about 2 weeks after Kelly had started working on the track on the premises of Truax, about a third of the whole job had been completed with ties distributed for another 2 miles, including a small part of the work on Truax's premises. On August 22, Lamm in a conversation with Mac Denny, Kelly's superintendent at the job, stated that his Company would have to sign a contract with UMW and all its employees would have to join that Union. Denny replied that he already was under contract with the Laborers, Operating Engineers, and Teamsters and would not sign up with UMW. Lamm thereupon stated that no work would go on unless he signed up and that he would have a th usand men out there on the following morning to see to it unless he complied with his demand. When Denny then asked if Lamm could furnish employees to do the work, he replied that he had no hiring hall and Denny could retain his employees as long as they joined UMW. Denny, however, declined to sign a contract. At the conclusion of their conversation and upon leaving, Lamm threatened at this time to have 250 men out on the job on Monday if he refused to sign up. On the following day, Lamm again met with Denny and asked to speak to his employees to have them join UMW, and again reiterated his demand about signing a contract and having the employees join UMW. He also stated how much the initiation fee and dues would be. Later that day, after working hours, Lamm came to Denny's office and once more demanded that he sign up with UMW. Denny denied having the authority to do so but volunteered to send a copy of the proposed contract to his boss who could, if he wished, sign up. On Monday, August 26, about 7:30 a.m., Denny, upon visiting the jobsite, observed about 100 cars lining both sides of the road with about 200 men, including Lamm and Hobbs, standing around in the vicinity. About 8 a.m., Denny again approached the jobsite and saw the same cars and men. Denny then requested Lamm to come to his office to discuss the problem. Lamm agreed to come as soon as he got his committee together and a few minutes later he and Hobbs and a few other men, members of his committee, appeared at Denny's office located in a trailer 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the jobsite and Norris. There, Lamm met Mr. Kelly, the owner of the Company , and demanded that he sign a contract and have his men join UMW. Denny then asked whether Lamm would supply the employees for the job. He declined , stating that he had no hiring hall and that Denny could recruit the men from any source provided they joined UMW and paid the initiation fee and dues. Kelly thereupon decided to shut down the job to avoid having anyone get hurt, to which Hobbs replied, "Yes, I guess we decided that for you this morning." Donald Ziegenbein , McCormack, and Carpenter, business managers for Laborers, Operating Engineers, and Teamsters, respectively, were also present at that meeting. Lamm explained that UMW had a contract with Truax requiring that work performed on its premises would have to be done by members of UMW . Ziegenbein replied that his members were already covered by a union that claimed jurisdiction over the work involved and would not join any other union, and McCormack declared that his members were not allowed to join any other union to do the same type of work. Later that morning Denny asked Hobbs if he could move out some equipment from the construction site to another job and was told "no, we don ' t want you on that property at all." On August 28, Denny visited the construction site where he saw about 100 men, including Lamm and Hobbs, standing around and again asked Lamm whether he could move out some of his equipment . Hobbs replied that he absolutely could not. However, on Wednesday following Labor Day, Hobbs permitted Kelly employees to remove some equipment . No track has been laid since August 26 but Kelly's equipment has been removed. On September 10, the General Counsel for the Board, obtained a temporary restraining order and, on September 19, a temporary injunction against picketing, threats of picketing , and related acts by District 12 at the tipple and/or spur construction jobs. Respondents' answer admits that they have not been certified as the collective-bargaining representative of any of Lively's or Kelly's employees, and it was stipulated during the hearing that neither UMW nor any of its locals or subdivisions filed a petition for an election under Section 9(c) of the Act, regarding any of the employees of Lively or Kelly. D. Conclusions 1. The 8(b)(7)(A) violations Section 8(b) of the Act provides inter alias It shall be an unfair labor practice for a labor organization 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 organization 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 organization is currently certified as the representative of such employees: (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 complaint alleges that Respondents threatened to picket and picketed Lively, objects thereof being to force or require Lively to recognize and bargain with Respondents as the collective-bargaining representative of its employees and/or to force or require said employees to accept Respondents as their collective-bargaining representative at a time when Lively lawfully recognized District 50, and a question concerning representation could not appropriately be raised under Section 9(c) of the Act. The record clearly establishes that Respondents demanded on several occasions that unless Lively's employees became members of UMW they would not be permitted to work on the tipple. At first, this ultimatum was given by Hobbs. Thereafter, Lamm, either alone or accompanied by Hobbs, made demands to that effect, which were accompanied by threats to shut down the job unless Lively's employees complied. To enforce these threats, they warned that they would bring more men to the jobsite and shut it down. Lamm also informed Lively's superintendent and a representative of District 50 that Joe Shannon, an International representative of UMW and president of District 12, joined in his demand that Lively's employees would not be permitted to work on the tipple unless they joined UMW. The threats were so effective that no attempt was made to work on the tipple. On Friday, August 23, Lively's employees succumbed to the demands of Lamm and Hobbs, agreed to join UMW, and became members by payment of initiation fees and dues. On Monday, August 26, they were told they could proceed with the tipple work and they began working on that day without hinderance or obstruction , and despite the large aggregation of miners massed near the spur construction project, which they had to pass on the way to the tipple project. This display of force undoubtedly convinced Lively's employees that they had had no alternative but to join UMW if they desired to work on the tipple. Contentions of Respondents Respondents deny that Lively's contract with District 50 bars raising a question concerning representation of Lively's employees under Section 9(c) of the Act. They assert that the contract did not encompass the tipple job because (1) it was negotiated prior to the existence of that job and by its terms does not purport to cover new operations, and (2) the distance from Norris , Illinois, to Beckley, West Virginia (the home office of Lively), precludes the accretion of any of the tipple construction employees to the Beckley unit of Lively's employees. I find neither contention applicable herein . The contract with District 50 in article I specifically covers construction work in all of the United States, and article XIV, section 10, makes provision for traveling expenses for employees who travel more than 50 miles from one project to another. Moreover, the inherent nature of the work in actual practice precludes confining the contractor's operation to one location and contemplates that construction jobs would be undertaken where available. Nor could the contract be reasonably or realistically construed to require a new contract for every job undertaken following its negotiation. I find further that Lively properly recognized District 50 as the exclusive bargaining representative of its employees pursuant to their contract. The Board has taken the position that UNITED MINE WORKERS OF AMERICA, DIST. 12 217 where an employer recognizes a union and executes a collective-bargaining agreement with it, a rebuttable presumption arises that the union represents a majority of the employees, Shamrock Dairy, Inc., 119 NLRB 998, 1002, enfd . sub nom. International Brotherhood of Teamsters, et al. v. N.L.R.B. 280 F.2d 665 (C.A.D.C.), cert. denied 364 U.S. 892. No evidence was introduced to rebut that presumption . In such circumstances the Board has held that effective collective bargaining , such as the one involved herein, constitutes a bar to the selection of an outside union as the bargaining representative of the employees." Respondents also contend that no threats were made to Lively and its employees to picket their project, nor did such picketing materialize . As related above, it appears that Respondents through Hobbs and Lamm clearly impressed upon Smith and his employees that they could not begin working on the tipple unless and until they became members of UMW. The unmistakable import of Respondents' contracts with Lively and its employees convinced them that Respondents had the manpower and would use it to keep them off the job until they capitulated. I conclude that Respondents' activities constituted a threat to picket within the meaning of Section 8(b)(7)(A), and that the threat continued until Lively's employees joined UMW. I find, however, contrary to the General Counsel, that he failed to establish by the preponderance of the evidence that the Respondents actually resorted to picketing of Lively's project to accomplish their objective." Respondents also claim that their contract with Truax gave UMW exclusive jurisdiction over the construction work to be done by Lively and Kelly on Truax's premises, " and accordingly assert that such work could be performed only by members of UMW, which is all that they sought to effectuate in their dealings with Lively, Kelly, and their employees. It appears, however, that Section 8(b)(7) provides that threats to picket and/or picketing are proscribed and in violation of said section in the circumstances set forth therein . As found herein, Respondents engaged in those activities for proscribed objects, and consequently committed unfair labor practices within the meaning of that section . I, therefore, conclude that Respondents may not avail themselves of their contract with Truax to defend or justify their violative conduct. " Based on the foregoing findings and reasons , and on the record as a whole, I find that the threats of Respondents to restrain Lively's employees from working in order to obtain their union affiliation violated Section 8(b)(7)(A)." 2. The 8(b)(7)(C) violations Section 8(b) of the Act provides: It shall be an unfair labor practice for a labor organization 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 organization 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 organization is currently certified as the representative of such employees: * * * * * (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing .... The complaint alleges that following Respondents' threats on August 22 to picket Kelly's construction job, they commenced picketing en masse on August 26 and thereafter at its jobsite and field offices, objects thereof being to force or require Kelly to recognize and bargain with Respondents and/or to force or require Kelly's employees to accept Respondents as their collective-bargaining representative in violation of Section 8(As)(rrelated above, Lamm threatened on several occasions to stop Kelly from proceeding with its construction work by stationing a large group of men at the jobsite. On August 26, about 100 cars were parked on both sides of the road on Truax's premises or on the road in the vicinity of Kelly's construction job with about 200 men, including Lamm and Hobbs , standing around or sitting in the cars. Thereafter, on the following days similar groups of cars and men appeared at the construction site but in decreasing numbers. On September 10, a temporary restraining order , subsequently supplanted by a temporary injunction, against picketing, threats of picketing, and related acts by Respondent District 12 at the tipple and/or spur construction job were issued, and thereafter no cars or men were observed at the construction site. "See Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Darby Electric Corporation), 153 NLRB 717, 723, and cases cited therein. "In reaching this conclusion I find that the appearance on August 22 of Lamm, Hobbs, and about nine men at the jobsite shortly after Smith and his employees arrived there did not constitute picketing within the meaning of that concept. "Respondents confined their demands insofar as Kelly 's work was concerned only to that portion of the spur to be constructed on Truax's premises. "In fact, the validity of the alleged applicable provisions of the UMW contract appears highly questionable. "The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees " National Woodwork Manufacturers Association, et at, v. N.L R B, 386 U.S. 612, 645. Respondents herein engaged in activities designed to obtain the union affiliation of the employees of Lively and Kelly and a bargaining agreement from Kelly; employers who were not parties to the UMW contract. Contentions of Respondents Respondents claim that no proof was adduced to show threats to picket or picketing within the meaning of Section 8(b)(7)(C). I find that subsection (C) proscribes picketing only and has no reference to threats to picket. Thus, threats to picket per se, would not fall within the proscription of that subsection, and accordingly would not constitute a violation even if proven . However, such threats may be considered in identifying the character of the activities which were subsequently carried out in implementing those threats." The findings herein clearly establish that the threats were to mass a large number of men to prevent Kelly's employees from working on the "Nor would the UMW contract absolve Respondents from liability under Sec. 8(b)(7)(C), discussed infra. ""In determining whether picketing has recognition or bargaining as an 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spur to compel Kelly to recognize UMW and its employees to join that Union. Respondents assert that the assembling of a large group of miners , members of Local 7110, near Kelly's construction site on August 26 and the following days until enjoined on September 10 by the United States District Court did not constitute picketing within the meaning of the Act, because no picket signs or placards were carried or displayed and the miners simply congregated around or in their parked cars. Thus, the question arises as to whether picket signs or placards and the patrolling of a particular area are essential ingredients of picketing within the meaning of Section 8 (b)(7). The term "picketing" is neither described nor delineated in the Act. The definition of the terms "picket" and "picketing" as defined in Black 's and Bouvier's law dictionaries do not mention the use of picket signs or placards or the movements of the pickets other than being posted or stationed at a particular place. In N.L.R.B. v. Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Woodward Motors), 314 F.2d 53, 58 (C.A. 2), the Court quoted Webster' s New International Dictionary (2d Ed.) as defining the verb "picket" as meaning "to walk or stand in front of a place of employment as a picket ," and the noun as "a person posted by a labor organization at an approach to the place of work .. ," and concluded that any particular movement by the picket was not a necessary ingredient of picketing . In none of these definitions is the patrolling or the carrying of signs considered a requisite component part of picketing. The purpose of picketing in labor disputes is to convey a message which is usually intended to influence the conduct of certain persons to stay away from work or to boycott a product or business, and is frequently accomplished, as was done herein, by posting individuals at the approaches to a place of work. The record shows that Respondents, in their confrontations with Kelly and its employees, emphatically and inescapably impressed upon them that they would not be permitted to work unless and until they joined UMW and Kelly signed a contract with that union . When Kelly and its employees balked at complying, they were warned that sufficient men would show up to enforce Respondents' demands. Respondents left no doubt as to their intentions when about 200 men, including Hobbs and Lamm, appeared at the jobsite the following workday. Kelly and its employees knew well why they were there and also realized that they were ready and able to prevent the comparatively few employees of Kelly from working. To avoid any injuries Kelly closed the job down and refrained from working even to the extent, at first, of removing its equipment from the jobsite . There was no need for Respondents to display signs or to patrol a specific area in order to inform those who were to be influenced as to the purpose of their presence at the jobsite . Under the circumstances herein , I find and conclude that Respondents' activities at the jobsite constituted picketing for objects of forcing or requiring Kelly to sign a collective-bargaining agreement with Respondents as the representative of its employees, and its employees to accept or select Respondents as their collective-bargaining representative. objective, the Board scrutinizes all evidence in the case, including events which precede as well as those which accompany picketing." Local 345, Retail Store Employees Union, et al (Gem of Syracuse, Inc), 145 NLRB 1168, 1172 The picketing herein began on August 26 and was enjoined on September 10 by the United States District Court. The Act requires that there be picketing "without a petition being filed under Section 9(c) within a reasonable period of time not to exceed 30 days from the commencement of such picketing." The Board has held that a reasonable time to be 30 days unless there are unusual circumstances involved in connection with the picketing, such as threats or acts of violence." The mass picketing following threats to Kelly and its employees that they would not be permitted to work unless they acceeded to Respondents' demands was calculated to instill a fear of potential violence, which was wholly effective in intimidating both Kelly and its employees to stay away from the job. Kelly was fully warranted in concluding that any attempts to continue working on the job would inevitably have resulted in violence on the picket line." I, therefore, conclude that, although Respondents picketed for less than 30 days, they, nevertheless, in the circumstances herein, picketed for proscribed objects for more than a reasonable period of time without filing a petition under Section 9(c) in violation of Section 8(b)(7)(C)." 3. The 8(b)(1)(A) violation The complaint alleges that Respondents also violated Section 8(b)(1)(A) of the Act. That section proscribes labor organizations or their agents from restraining or coercing employees in the exercise of the rights guaranteed in Section 7. The facts related above clearly show that Respondents' threats and/or picketing not only tended to restrain and coerce the employees of Lively and Kelly in the exercise of their statutory rights, but actually succeeded in doing so, which is more than required to establish a violation of that section . As the Board held in Grundy Mining Company, 146 NLRB 176, 181, fn. 7: It is sufficient to establish a violation of that section [8(b)(1)(A)] to show that the conduct of Respondent union had a tendency . . . 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.] I, therefore, find and conclude that Respondents engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act.20 "See District 65. Retail, Wholesale & Department Store Union, AFL-CIO (Eastern Camera & Photo Corp ), 141 NLRB 991, where the Board adopted the rationale in Cuneo v. United Shoe Workers of America. AFL-CIO, et al (Q T. Shoe Mfg Co), 181 F. Supp. 324 (D C NJ ), in which only 10 days of picketing was held to constitute a reasonable time because of the unlawfully aggressive nature of the picketing and its coercive effect on the employees involved "A conclusion borne out in many Board cases involving UMW pickets See, e.g., United Mine Workers of America and United Mine Workers of America. District 2 (Solar Fuel Company). 170 NLRB No 178, and United Mine Workers of America, et al, (Mears Coal Company), 173 NLRB No. 100 "See District 30, United Mine Workers of America (Terry Elkhorn Mining Company, Inc), 163 NLRB No. 81 "Although Respondents in their brief do not challenge the agency of Lamm and Hobbs, some question was raised during the hearing as to the latter's agency In view of their close cooperation and collaboration in the violative incidents related herein , and the failure of Lamm, an admitted officer of District 12 and an International representative, to disavow any of UNITED MINE WORKERS OF AMERICA, DIST. 12 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondents' activities set forth in section III, above, occurring in connection with the substantial relations in trade, traffic, and commerce of Lively and Kelly among the several States, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent Unions and District 50 are labor organizations within the meaning of Section 2 (5) of the Act. 2. Lively and Kelly are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By coercing and restraining the employees of Lively and Kelly in the exercise of their statutory rights, by threats and/or picketing to prevent them from working, Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1)(A) of the Act. 4. By threatening to picket Lively' s construction project to prevent its employees from working with an object of forcing or requiring those employees to accept or select them as their collective-bargaining representative at a time when Respondents were not currently certified as such representative and Lively had lawfully recognized another labor organization 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 unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act. 5. By picketing, or causing to be picketed , Kelly, where objects thereof were to force or require Kelly to recognize or bargain with Respondents as the collective-bargaining representative of its employees and to force or require said employees to accept or select Respondents as their collective-bargaining representative without a petition under Section 9(c) of the Act being filed within the reasonable period of time from its commencement of such picketing, Respondents engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 6. Respondents have not engaged in any unfair labor practices not specifically found to have been established by the evidence. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have violated Section 8(b)(1)(A) and 8(b)(7)(A) and (C) 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. Having found that the employees of Lively were unlawfully coerced into joining and paying initiation fees and dues to Respondents, I shall recommend that Respondents be ordered to refund to those employees such sums which were so paid with interest at 6 percent. Hobbs' solo activities, I find that both of them were acting as agents of Respondents, and their activities are attributable to them. RECOMMENDED ORDER 219 Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is hereby recommended that United Mine Workers of America, District 12 and United Mine Workers of America, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Coercing or restraining the employees of J.O. Lively Construction Company or Kelly Railroad Contractors, Inc., in the exercise of their rights guaranteed them by Section 7 of the Act by threats to picket and/or picketing, or in any like or similar manner, to prevent them from working on their respective construction jobs on the premises of Truax-Traer Coal Company within the meaning of Section 8(b)(1)(A) of the Act. (b) Threatening to picket J.O. Lively Construction Company where an object thereof is forcing or requiring the employees of J.O. Lively Construction Company to select or accept Respondents as their collective-bargaining representative, in circumstances violative of Section 8(b)(7)(A) of the Act. (c) Picketing, or causing to be picketed, Kelly Railroad Contractors, Inc., where an object thereof is to force or require said employer to recognize or bargain with Respondents as the representative of its employees, or to force or require employees of said employer to accept or select Respondents, or any other labor organization, as their collective-bargaining representative, in circumstances violative of Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Refund to each of the employees of J.O. Lively Construction Company the moneys unlawfully exacted from them in the form of initiation fees and dues paid to Respondents when coerced into joining United Mine Workers of America, as set forth in the section of this Decision entitled "The Remedy." (b) Post at the business offices and meeting places, if any, of United Mine Workers of America, located within the territorial jurisdiction of United Mine Workers of America, District 12, and in all business offices and meeting places of said District 12, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Officer-In-Charge for Subregion 38, after being duly signed by an official representative of each Respondent, shall be posted by said 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 Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to the Officer-In-Charge for Subregion 38 signed copies of said notice for posting by Truax-Traer Coal Company, J.O. Lively Construction Company, and Kelly Railroad Contractors, Inc., if willing, in places where notices to their respective employees are customarily posted. (d) Notify the Officer-In-Charge for Subregion 38, in writing, within 20 days from the receipt of this Decision, "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." 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps have been taken to comply herewith." I FURTHER RECOMMEND that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. ..In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Officer- In-Charge for Subregion 38, in writing , within 10 days from the date of this Order, what steps Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS OF AMERICA, DISTRICT 12 AND UNITED MINE WORKERS OF AMERICA 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: WE WILL NOT restrain or coercethe employees of J.O. Lively Construction Company or Kelly Construction Contractors, Inc., by threatening to picket and/or by picketing to prevent their employees from entering on the premises of Truax-Traer Coal Company in order to perform work for their respective employers ; or in any other like or similar manner coercing the employees of said employers in the exercise of their statutory rights within the meaning of Section 8(b)(1)(A) of the Act. WE WILL NOT threaten to picket J.O. Lively Construction Company where an object thereof is to force or require employees of said employer to accept or select us, or any other labor organization , as their collective-bargaining representative, in circumstances violative of Section 8(b)(7)(A) of the Act. WE WILL NOT picket, or cause to be picketed, Kelly Railroad Contractors, Inc., where objects thereot are to force or require said employer to recognize or bargain with us as a representative of their employees, or to force or require employees of said employer to accept or select us, or any other labor organization , as their collective-bargaining representative , in circumstances violative of Section 8(b)(7)(C) of the Act. WE WILL refund to each of the employees of J.O. Lively Construction Company the money paid by them in the form of initiation fees and dues upon being coerced into joining United Mine Workers of America. Dated By Dated By UNITED MINE WORKERS OF AMERICA, DISTRICT 12 (Labor Organization) (Representative) (Title) UNITED MINE WORKERS OF AMERICA (Labor Organization) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Subregional Office, Fourth Floor, Citizens Building , 225 Main Street, Peoria, Illinois 61602, Telephone 309-673-9061, Extension 282.