United Mine Workers of America

DISTR. 20, UMW 565 District 20, United Mine Workers of America and Harbert Construction Corporation. Case 10-CB-- 1981. TRIAL EXAMINER'S DECISION STATEMENT OF TEEM CASE August 10, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 17, 1971, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached " Trial Examiner's Decision. Thereafter, Respondent filed -exceptions to the Trial Examiner's Decision and a supporting brief. The Charging Party filed motions to strike the exceptions and brief of Respondent. Pursuant to the provisions of Section 3(b) of the National Labor . ielations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial' error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, , the motions, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions 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 recommend. ed Order of the Trial Examiner and hereby orders that the Respondent, District 20, United Mine Workers of, America;.its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. I Ile Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We,have carefully examined the record and find no basis for reversing his findings. ALBA B. MARTna, Trial Examiner: This base was heard in Birmingham, Alabama, on April 21, 1971,, pursuant to a charge filed by the Company on February 4, 1971 and a complaint issued on March 11, 197-1. The issue litigated, was whether Respondent Union violated .Set tion S(b}(1XA) of the National Labor Relations Act, herein called the Act, by threats on and near a picket line. Upon the entire record, including my observation of the demeanor of the witnesses, and after, due consideration of the briefs filed by the Company and Respondent Union, I make the following: FINDINGS ()V_ PACT L JURISDICTION Harbert Construction Corporation, herein called the Company, an Alabama corporation with its principal, office and place of business in Birmingham, Alabama, is engaged primarily ,in general contracting: During the. calendar year prior to the issuance of the complaint, a representative period, the Company purchased and received goods valued in excess of $50,000 directly from points located outside the State of Alabama. Respondent Union admitted„and I find, that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that District 20, United Mine Workers of America, Respondent, Union (herein sometimes called the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES This case involves three incidents on a picket line shortly before and after the Union filed a petition`' The complaint alleged and Respondent's answer admitted that since on or about January 11, 1971, Respondent has sponsored and engaged in a strike and' established a picket line near the entrance to the Company's strip mine adjacent to U.S. Highway 31 between Hoover and Pelham, Alabama. The testimony showed that this was the main entrance to the mitre, and the entrance used -to carry the coal out.- The pickets were at the entrance to the mine road where the road leaves a large parking area next to "the highway. The strike began" early in the morning on - Monday, January 11, 1971, and was still on at the time of the hearing herein. At or about 5:45 a.m. on January 11 there were over 50 persons on or near the picket line. There were about the same number in the early morning hours on Monday, January 18. Otherwise, each day for the first 2 weekss of, the strike, the period- which included- the three incidents involved herein, there were between 40 and 50 on or near the picket line during the early morning hours. The Company's project manager for this coal stripping project credibly testified that but for the strike the Company would have employed 23 or 24 men on January 11. The, project 1 From the Board's official records I take official notice that on January 20, 1971, the Union filed a petition for an election in Case 1d-RC-8585. 192 NLRB No. 93 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager credibly testified there were only 20 company employees among the pickets . It follows that all in excess of this number on the picket line -were, not then company employees. International Representative Littlefield testified that some of these were retired mine workers and some were memberssof the Union who worked at=other mines in the -,general a±ea1- acid who stopped at the picket-, lfor a few moments on the way to work. After` the 'early morning hours these, first, 2 weeks,, the, number ofpickets dwindled each day to about 8=12. - Each day dW ing-at -least-these first 2 weeks of the strike, the Union had at least one, of its representatives-, on the' picket' line up until noon'=or'shortly thereafter: Sometimes there were more 'than one. 1. On or about January 14,2 several days after the strike and picketing began, the Company's superintendent, Stephens, and a foreman, Faulkner,Idrove up to the pickets and told a union representative, Boothe,3 who was there, that the Company planned to move some equipment which needed repair, including the front-end loader, from the mine to the Company's maintenance shop, which was down the bighway a,^ few miles. The company representatives asked for the Union's position-on the matter. Boothe said he would' confer with the strikers and asked Stephens and Faulkner to`return a lttle later. When they returned Boothe or a striker named Coffer, orboth, told them that themen had talked it over`and `had 'decided not to let-the Company move the equipment. The• company 'representatives replied that they `wouldnevertheless' move it. About -noon that day, as Faulkner was driving' a front- end' loader away from the mine, he was beckoned to stop atY the picket line byStriker Coffer. According to the credible and credited testimony of Faulkner,4 Coffer asked- hlm where he was going with the loader. Faulkner replied he was taking it to the shop. Another striker named Prestly said that if Faulkner knew what Prestly knew he would take the loader back and parkit. Coffer said that Faulkner could get in'a lot of -trouble over that, that if he -took ,the loader out Faulkner and his, wife and children would; be in some bad, trouble;, that all Coffer had to do was to make one telephone call. There were 8, to 10 pickets in the immediate. area. Somebody asked - if , Faulkner was- acting, under company orders,,and Faulkner replied that he was,,,under, orders of Mr. -Harbert. Somebody suggested that Faulkner prove it., Faulkner then got down from the loader, walked, with a striker named, Collum to,a nearby ,telephone,. and called Superintendent Stephens. Then , Faulkner told Cpllum that Stephens, said that. Harbert =said he should, bring the loader to the shop. Collum then warned Faulkner that he had better watch Coffer. 4, - s After, Faulkner-again mounted,the loader, Coffer again threatened that all he -,had to do;was to make one telephone call ,and Faulkner's wife and family would be in ;trouble, When Faulkner asked if Cofferwas threatening hint, ;Coffer replied that;hecould take it- any, wayhe:wanted, that Coffer would make- the call. On cross-examination by Respondent 2 All, events herein ocqurrgd-in 1971. - - ' 3''Respondent Union's witnesses testified that Hillhouse, not Boothe, was the union representative on the picket line that morning . I credit the testimony of Superintendent Stephens on this point ; who'said they' spoke to Boothe,whom Stephens' hadknown for 20 years. I Union's counsel, and- without objection; Faulkner credibly testified,thathe was :frighteneddby wlkat-,Coffer. said. Coffer denied threatening Faulkner's We and family. He testified he told Faulkner that he, Coffer, liked his wife and kids "too much to mess with the picket line." Some of his attempts to explain just,what, he meant by this demonstrat- ed his incredibility as a 'witness. He admitted, however, that messing with the picket line included coming up to it and aggravating and carrying on, and that "just crossing over it" was messing with it ',`in.,a general situation." He said, "Anything aggravates it." He said that pulling up to the picket line and stopping aggravated it because there were three entrances and Faulkner could have used one of the others. In total Coffer was, a confused witness and not, as credible a witness as Faulkner, ^, Coffer's threats to Faulkner and his We and children occurred when there were some 8-10 pickets in ,the immediate area, on a day when earlier in the morning there were some 40-50 present. ` Hillhouse, a union representative, was in'the area,,and Boothe, who was there earlier that morning, may have been. Coffer's threats were made right on the, picket line; and were sure-to have become known to the other -strikers, and pickets. It has,long, been settled that restraint and coercion directed Against supervisors sand managerial personnel under,,,cire- umstances where. the conduct became- or was sure to become- known, to ithe Company's striking or nonstriking employees constitutes restraint and coercion' of employees in the exercise of their, statutory,rights within the meaning of Section 8(b '-of the Act. See, e.g., internation"al Wood Workers of ;America, 1 i6-NLRK'507)508; Communications Workers of America, 120 NLRB' 684, 686. ,Upon the above,factssandconsiderations, and-the-entire record considered as a whole, I find that Coffer's threats, fort-which Respondent Union was responsible,,constituted the, restraint and coercion. pf employees ,,„proscribed in Section,8(bXl)(A)vof the Act. In addition `P estly'ss remark that if Faulkner knew 'what he knew, he would .park the loader, an& Collum's warning that Faulkner better watch Coffer, amounted, under all the' circumstances of this-case; to `additional threats which were sure to become known to employeesY and which reasonably tended- to restrain and coerce employees, Respondent thereby further violating Section 8(b)(1)(A). While he was talking to Faulkner, Coffer went part way up the ladder on one side of the loader and held on to the sides of the ladder. On cross-examination Faulkner testified that Coffer put one hand in his pocket, causing Faulkner to fear that Coffer had a'knife. Coffer denied he put a-hand-in his ' pocket and denied he'had a knife: He-`testified' he held on" to the- loader' with'both hands.; Coffer was 'considerably below ,Faulkner on the loader,:made no attempt 'to grasp'or swing at Faulkner,-andwould,have been at considerable disadvantage if he bad.,' There was ao evidence-of knifeplay in connection with the strike, and no testimony that, anyone else present saw Coffer's hand in his pocket. Under all the circumstances I do not believe that Coffer had a knife- or ^' By his^',demeanor' Faulkner impressed me as a credible "witness, although he has been convicted (many years ago) of two felonies for which he has paid his debt to society. He testified= easily, andfreely on direct and cross-exanliwation, ' and in addition much --'of his testimony was corroborated by other witnesses. - DISTR. 20, UMW threatened -Faulkner inthe alleged manner, and I find there was no violation-in this regard. 2. Early Monday morning, January 18, Foreman Faulkner drove through the picket line towards the- mine without incident, carrying a nonstriking company employ- ee, Clowdus, in a{company pickup truck Clowdus; who had worked at this mine before the strike, was going into the office- for see-if-he-could work elsewhere for the Company during the strike. Upon their-return about 1/2 hourlater, between 8- and 9 -a.m., they stopped to give one of the pickets ' a message from his wife;-There were about 10`12 pickets. As they paused an International representative of the Union, Littlefield, approached the right side of the car and spoke with some, profanity and in a harsh tone to Clowdus. He asked Clowdus his name, and the latter told him. He told Clowdus, sticking his finger "right in his nose," that he was going to -honor these pickets, that he wasn't going to cross this line anymore, that we don't want you back in there anymore. Clowdus assured him that he 'would'n't cross-the line anymore. Littlefield told Clowdus he would be `in trouble if he did, and `that, in fact, he was already in trouble. Clowdus' testified withoutobjection that this latter statement- upset him and caused him some fear for his personalsafety;'that he has a wife and children: Littlefiel& also-spoke profanely-and sharply to Foreman Faulkner, puttmg' his- finger "in "my face" as Faulkner leaned 'over to the right side of the car He asked Faulkner what he thought he was doing, driving these men back and forth through the line. Faulkner replied-. that Clowdus wanted to 'go in "to find out what was'going on." Littlefield told Faulkner he was not to let that happen again, that we ,respect your.right as a, foreman to go in and out, but that you are notto carry men across the-line anymore:' Since this' incident' Clowdus has not been back to the mine except to vote in a Board-conducted election on March 19. The above is based ' upon the credited testimony of Clowdus, a credible witness, and Faulkner. Littlefield testified in substance that he was calm, used no profanity, and simply asked Clowdus to observe the picket line and not cross it. As Clowdus by his demeanor impressed me as a credible witness, as his testimony was corroborated by Faulkner, and as the record showed that commands were more in the spirit of this ' picket ne,than entreaty; I credit Clowdus and Faulkner '"and find' that by Littlef"ield's stern threats to Clowdus that he would be in trouble if he crossed the line and was' already in trouble, Respondent Union restrained and coerced employees in the exercise of their Section 7 rights, Respondent thereby further violating 'Section 8(b)(1XA) of, the Act. 3. On Monday morning, January 25, just before noon, Foreman Faulkner drove to the picket line from the mine in a company truck, carrying a Negro employee named Anderson, who worked in the Company's maintenance shop. They had 'driven through the line towards the mine without incident about a half hour before. Upon their return they ' were' beckoned to stop by a union representa- tive, a Negro man named Brown. The latter went to Anderson's, -side of the truck. There were five-six pickets within hearing distance, at least-some of them striking 567 company. employees. According to the credible and credited testimony of Faulkner and Anderson, Brown opened the conversation by asking Anderson his name. Anderson replied by asking him who, he was, a "deputy sheriff?" Brown -replied 'he might be, and he put, his -right hand inside his - coat under his, left shoulder, . giving Anderson the impression,- by this gesture and his stem tone of voice, that he had a gun. Brown then-told Anderson either that .he was not to cross the picket line-anymore or that he was not to go to-the mine anymore. Brown ,and 'Anderson both used a few "cuss" words such 'as "damn" and "hell." - - As they stopped and before the conversation started, Brown opened the truck door on Anderson's side part way. The window was up and 'Anderson could not roll it down because the handle was missing. Brown spoke to Anderson as related above through the partially opened door. When Brown reached'up'under his left shoulder Anderson'made an attempt to open the door further "soI couldget him and him not get me because 'he didn't-come at mein the right way about it, no way." ' On cross-examination by Respondent's counsel Ander- son credibly testified' that when he reached up under his shoulder Anderson thought Brown had' a gun, "the way he come and the tone of his voice. -.I didn"'t ow what he had up under there .... I wasn't taking no-c ces." The above is based upon the testimony of,Anderson, who by his demeanor and his ` testimony impressed me as a credible witness, and upon the corroborative^testimony of Faulkner. Brown denied that he opened'the door, denied using any profanity, and testified that he 'simply asked Anderson to honor the picket line and not to go into the mine and do any work. Brown denied that he ran his hand up under his coat and testified that in fact he was wearing a zippered jacket which was zipped up to his neck because it was cold that morning. In his pretrial affidavit Brown stated that he didn't put his hand in -his coat -but said nothing about wearing a- zippered jacket that was zipped up. At-the,hearing he did not-recognize the Board agent who had taken-his pretrial affidavit, who was counsel- for the General Counsel in this case., In view of all the above I did not find- Brown as credible' a witness concerning the events of - June 25, as Anderson; was. Further, Brown's testimony on cross-examination by the Charging Party that anybody is free to cross the picket line and go to work, without any coercion or threats, is contrary to the other threats found above to have occurred, and is incredible. Upon ' alt" the events and considerations in this episode, and upon the entire record, I find that by Brown's stern order that Anderson was not to cross the line or go to work, and his gesture with his hand, all of which occurred in the immediate presence ` of -two other `pickets, Respondent Union further restrained and coerced employees - in the exercise of Section 7 rights and thereby- further - violated Section 8(b)(1)(A) of the Act. . ' 4. As has been seen-above, the threats-in two of the three episodes were made to prevent nonstriking -employees from crossing 'the picket line and going to work. The presence of large numbers of men-more than twice the number of-men employed at the mine-in the picketing area' each morning for the first 2 weeks of the strike and 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifically on the mornings of the incidents,-would' tend, when taken together with the "threats made during all three episodes, to chill the desire of-any employees who wished to cross the picket -line for any purpose 'including going to work. All of these facts and all of the circumstances in this case, considered together, indicate a pattern of coercive conduct'by Respondent Union which,I find, tended to, and was in fact designed to, restrain and coerce employees in the exercise. of their Section, 7 rights to refrain from engaging in union, activity,I Respondent thereby violating Section 8(b)(1)(A) of the Act. See United Mine Workers of America (Weirton Construction Company), 17-4 NLRB No. 52. CONCLUSIONS OF LAw 1. By threatening a supervisor and his wife and children because he drove a company vehicle to be ,repaired through a, picket line, Respondent engaged in unfair labor practices affecting commerce within the meaning of' Sections 8(bx1XA) and 2(6) and (7) of the Act. 2. By threatening an employee that he would be in trouble if he crossed a picket line, and that he was' already in 6 rouble°for crossing it, Respondent violated Section 8(bx1XA) and Section 2(6) and (7) of the Act. 3. By simultaneously ordering an employee not to cross a picket line or go to the mine, and making a threatening gesture towards him, Respondent violated Section 8(bx1XA) and Section 2(6) and (7) of the Act. 4. By engaging in a pattern of coercive conduct to restrain or coerce employees in the exercise of their rights to refrain from engaging in union activity, Respondent violated Section 8(l,X1XA) and Section 2(6) and (7) of the Act. REMEDY In order to effectuate the policies of the Act, I find it necessary that Respondent-Union be ordered to_cease and desist from the-unfair labor practices found and from like or'related invasions of the employees' Section 7 rights, and to take certain affirmative action. Upon the foregoing findings of fact and conclusions of law,-upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 5 ORDER Respondent, District 20, United Mine Workers of America, its officers, representatives, successors, and agents, shall: 1. , Cease and desist from: (a) Making threats to a supervisor, and his wife and children, because he drives a 'company vehicle through a picket line to be repaired. (b) Threatening employees they will be in trouble and in fact are already in trouble for crossing a picket line. (c), Simultaneously ordering employees not to cross a picket line or go to .the mine, and making threatening gestures towards them. , - (d) Engaging,in a pattern of coercive conduct to restrain and coerce, employees in the exercise of their rights to refrain from engaging in union activity. 2. Take -the - following affirmative action which - is necessary to effectuate the policies of the Act: (a) Post in conspicuous, places at Respondent Union's office, hiring hall if any, meeting halls, and at all places where notices to members and employees of Harbert Construction Corporation are customarily posted, copies of the attached,inotice marked "Appendix."6, Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by Respondent Union's authorized representative, be posted by Respondent immediately, upon receipt thereof,^and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of, said notice to the Regional Director for Region 10, for posting by Harbert Construction Corporation, if i willing, at all locations in. its places of, business, and at its mines where notices to its employees are customarily posted. (c) Notify said Regional Director,, in writing, within 2'0 days from the date of this Decision, what Respondent has taken to comply herewith.? S In the event no exceptions are filed as provided by Section' 102.46 of the Rules and' Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and, Recommended Order herein shall, as provided in Section 102.48 of the Rules and, Regulations, be adopted by the Board and become its findings, conclusions, and order, and ' all objections thereto shall be deemed waived for all purposes. 6 In the event that the Board's Order is enforced by -a judgment of 'a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed, to, read "Posted Pursuant to a. Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 7 In the event that this recommended Order .is adopted by the Board after exceptions have been'filed, notify the Regional Director for Region 10, in writing, within 20 days from the date, of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE POSTED BY ORDER OF TIP, NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To ALL MEMBERS OF DISTRICT 20, UNITED MINE WORKERS OF AMERICA, AND TO ALL EMPLOYEES OF HARBERT CONSTRUCTION CORPORATION WE WILL NOT threaten any employee that he-will be in trouble, or is already in trouble, forcrossing a picket line. WE WILL NOT while making a'threatening gesture towards him order any employee not to go to,the',mine anymore during a strike, or not to cross a picket line. WE WILL NOT threaten any supervisor and/or his We and children because he drives a company vehicle through a picket line to be repaired. WE WILL NOT engage in a pattern of coercive conduct to restrain, and coerce employees in the exercise of their rights to. refrain from engaging in union activity. WE WILL NOT in any like or related manner restrain or , coerce employees in the exercise of 'the rights guaranteed in Section 7 of the National Labor Relations Act. DISTR. 20, UMW 569 DISTRICT 20, UNrrED MEVE This notice must remain posted for 60 consecutive days WoRunxs of AMERICA from the date of posting and must not be altered, defaced, (Labor Organization) or covered by any other material. Any questions concerning this Notice or compliance with Dated By its provisions, may be directed to the Board's Office, (Representative) (Title) Peachtree Building, Room 701, 730 Peachtree Street N.E., This is an official notice and must not be defaced by Atlanta, Georgia 30308, Telephone 404-526-5760. Anyone.