United Mine Workers of America

UNITED MINE WORKERS OF AMERICA, DIST NO. 6 United Mine Workers of America, District No. 6 and its Local No. 1638 (Consolidation Coal Company) and Lesley L.-Naylor, Sr. Case 6-CB-2706 April 28, 1975 DECISION AND ORDER EY MEMBERS FANNING, JENKINS, KENNEDY, AND PENELLO On June 28, 1974, Administrative Law Judge Her- bert Silberman issued the attached Decision in this proceeding. Thereafter, General -Counsel filed excep- tions and a supporting brief, and Respondents filed cross-exceptions and a brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. Contrary to our dissenting colleague's narrower view of the statute, we are of the opinion that the direction to the Board in Section 4(a) of the Act to appoint an Executive Secretary carries with it the authority to delegate to him the duties normally associated with such a representative of a government agency. Pursu- ant thereto the Board in Section 201.1.1 of its Rules and Regulations has established the Executive Secretary as the Board's chief administrative and judicial officer with the authority to receive, docket, and acknowledge all formal documents filed with the Board. In this re- spect, the Executive Secretary acts in the capacity of a clerk to the court. Such authority has been delegated to the Executive Secretary as may be necessary to permit hire to fulfill the duties entrusted to him. This includes the power to rule upon requests for extension of time to file briefs with the Board. The exercise of this power is challenged by our dissenting colleague. While, in view of our decision in this case, there can be no prejudice to the Respondents, the Board is always concerned when it is charged that its Executive Secre- tary has acted arbitrarily and unreasonably, the only proper question that can be raised in the instant case. We have therefore carefully examined all the facts relating to the Respondents' requests and motions for extensions of time to file an answering brief. Respond- ents were originally granted an extension of time to file an answering brief to September 23, 1974. On that date l In their cross-exceptions and brief in support, Respondents argue that the Administrative Law Judge used an improper standard in evaluating their Sec 502 defense, erred in assessing the significance of his finding that Naylor was discharged for insubordination, and-should have found Sec. 8(b)I,1)(B) totally inapplicable in this case. As we have adopted the Adminis- trative Law Judge's finding that Respondents were not responsible for the strike which began on March 28, 1973, which is dispositive of the case, we find it unnecessary to pass on the additional issues raised by Respondents 541 Respondents were granted a further extension to Sep- tember 30 and advised that no further extension would be granted. Respondents did not, however, file their answering brief until October .16. The brief was rejected as untimely. On October 21 Respondents filed a motion to have their rejected brief accepted by the Board. The motion was denied by the Executive Secretary's office on behalf of the Board. In our opinion, the Executive Secretary's office acted reasonably and properly in this matter. It is unreasona- ble to suggest, as does our dissenting colleague, that the Board Members must assume the administrative duties of their Executive Secretary as a matter of statutory obligation. We believe that questions relating to re- quests for extensions to time to file a brief do not war- rant the personal attention of Board Members, who must necessarily concern themselves with substantive issues of law and fact and procedural matters of impor- tance. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER PENELLO, concurring: I agree with Members Fanning and Jenkins that the Board need not consider the Respondents' motion for special permission of the Board to accept Respondents' late-filed brief in this case, but so find particularly in view of our unanimous decision to dismiss the allega- tions of the complaint. In my, opinion, it would have been better practice for the Executive Secretary's Office to have referred the Respondents' motion of October 21 to the Board Mem- bers for ruling, inasmuch as it was in the nature of an appeal from the previous ministerial action by that office. But here the ultimate decision of the Board is favorable to the appealing party; hence this case is unlike a situation where the ultimate decision is unfa- vorable and prejudice might result from having the appeal acted upon by the same agent who took minis terial action without clearance with the Board Mem- bers themselves. Thus, the action at issue in this case was an unfortunate error in judgment which I would not anticipate would recur in the future. Therefore, after carefully examining all the facts and considering that no prejudice accrued to the Respondents, I would affirm the action of the Executive Secretary's Office in denying that motion. 217 NLRB No. 88 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER KENNEDY, concurring, in part and dissenting in part: I concur in the dismissal of the allegations of the complaint. I disagree, however, with my colleagues' conclusion that the Executive Secretary's Office acted reasonably and properly in denying Respondents' for- mal motion for'special permission of the Board to ac- cept their late-filed answering brief. The time for filing cross-exceptions and answering briefs had been extended to September 30, 1974, by the Executive Secretary's Office of the Board.' Respond- ents timely filed their cross-exceptions and supporting brief by that deadline. However, Respondents subse- quently submitted to the Board on October 16, 1974, a brief in answer to the exceptions and brief previously filed by the General Counsel. Respondents' answering brief was rejected by the Executive Secretary's Office as being untimely filed. Having failed in their attempt to persuade the Execu- tive Secretary's Office to docket their answering brief, Respondents filed a formal motion seeking special per- mission of the Board to file their answering brief. Re- spondents' motion was not presented to the Board for ruling. Instead, Respondents' motion was summarily denied by the Executive Secretary's Office without a Board Member being informed that the motion had been filed. Indeed, I learned that the motion had been filed and rejected only because Respondents sent letters dated October 30, 1974, to each Board Member detail- ing the actions of an associate in the Executive Se- cretary's Office. I think it improper for Members of this Board to first learn of the rejection of a formal motion through correspondence subsequently received from a litigant. We may find our duties burdensome at times, but we must accept "the principle that those legally responsible for a decision must in fact make it." See KFC National Management Corp., 497 F.2d 298 (C.A. 2, 1974). 1 fail to perceive how my colleagues can prop- erly conclude that the motion- was properly denied by the Executive Secretary's Office when the Board Mem- bers were unaware of the motion. Contrary to my colleagues, I find nothing in Section 4(a) of the Act which suggests that the Board is author- 2 The Administrative Law Judge issued his Decision on June 28, 1974. General Counsel was not required by the Executive Secretary's Office to file his exceptions until August 19, 1974. Respondents argue that General Counsel was allowed 7-1/2 weeks to prepare his exceptions so that counsel for General Counsel, inter aha, could take a previously scheduled vacation Respondents' requests for additional time were based upon the claim that its small legal staff was involved in negotiations of a national bituminous coal collective-bargaining agreement at a time when the President and other Government officials were urging the parties to reach a new agreement at the earliest possible moment 3 The second sentence of Sec. 4(a) of the Act "The Board shall appoint an executive secretary, and such attorneys, examiners, and regional direc- tors, and such other employees as it may from time to time find necessary for the proper performance of its duties " Sec. 4(a) contains no other refer- ence to the executive secretary. ized to delegate to the Executive Secretary the power to rule on formal motions filed with the Board.' Nor do I find any language in Section 201.1.1 of the Board's Rules and Regulations which authorizes the Executive Secretary to rule on such motions.' In my opinion, the authority of the Office of Executive Secretary to re- ceive, docket, and acknowledge all formal documents filed with the Board does not encompass the power to rule upon motions filed with the, Board. I have no disagreement with my colleagues as to whether we have authorized the Office of the Executive Secretary to discharge the duties of "clerk of court." My disagreement with my colleagues relates to whether the Office of Executive Secretary should perform judi- cial functions of this Board. I think it inaccurate to suggest that the denial of Respondents' motion herein was the discharge of a duty normally understood to be included within the "clerk of court" function. Courts retain the power to rule on motions and do not entrust such rulings to their clerks. My efforts have been unsuccessful to date in having the role of the Executive Secretary's Office defined.' The basis difficulty is that the Board Members disagree as to the scope of the duties to be performed by person- nel in the Office of the Executive Secretary. I subscribe to the view that the duties should be limited to those traditionally performed by a clerk of court. I do not favor issuance of Executive Secretary orders without prior clearance by a panel of the Board.' I do not be- lieve the Office of the Executive Secretary should rou- tinely reject appeals which argue that a ruling of a Regional Director is "arbitrary and capricious" in con- sent election cases. Such appeals should be ruled upon by the Board Members. Similarly, I do not believe that the Executive Secretary's Office should instruct a Re- gional Director to withdraw his approval of consent 4 Sec 201 1 . 1 of the Board's Rules and Regulations provides office of the Executive Secretary. The executive Secretary is the chief administrative and judicial management officer of the Board , represents the Board in dealing with parties to cases, and communicates on behalf of the Board with labor organizations, employers, employees, Members of Congress, other agencies, and the public. The Office of the Executive Secretary receives, dockets, and acknowledges all formal documents filed with the Board; issues and serves on the parties to cases all Board decisions and orders; and certifies copies of all documents which are a part of the Board's files or records 5 Shortly after I was appointed to the Board, we were confronted with a situation in which the Executive Secretary's Office had instructed a Re- gional Director to withdraw his first report recommending dismissal of objections and issue a new report. The instruction had not been authorized by the Board We rejected the Regional Director's second report and agreed with his first report. Peoples Natural Gas, Division of Northern Natural Gas Company, 191 NLRB 272 (1971) - 6 In Automated Business Systems, a Division of Litton Business Systems, Inc., v N.LR.B, 497 F 2d 262 (1974), the Sixth Circuit denied enforcement of the Board's decision reported at 205 NLRB 532 (1973). The court agreed ,With my dissent and remanded the case for a hearing on the union's majority Thereafter, the Executive Secretary's Office issued an order per- mitting withdrawal of the charge without consultation with the Board. Had I been consulted, I would have agreed with the result but would have suggested different language from that included in the order. UNITED MINE WORKERS OF AMERICA, DIST NO. 6 543 election agreements without authorization by the Board Members. All too often, advice or instructions from the Executive Secretary's Office-are understood by the Regional Directors and parties to represent the view of a majority of the Board Members when in fact the Board Members have not been consulted. In my view, the Board was required to consider and rule upon Respondents' motion. The statute does not permit the Board to authorize the Executive Secretary to make such rulings. The Act clearly provides in Sec- tion 3(b) that the Board may delegate its authority to a panel of three or more Board Members, and the Board may delegate certain authority in representation matters under Section 9 of the Act to its Regional Dnrectors. Nowhere in the statute or the Board's Rules and Regulations is any provision made for delegation to the Executive Secretary's Office to rule on motions filed with this Board. Accordingly, I dissent. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed by Lesley L. Naylor, Sr., an individual, on June 7, 1973, a complaint dated July 31, 1973, was issued alleging that the Respondents, United Mine Workers of America, District No. 6 and its Local No. 1638, herein respectively referred to as the District and the Local and jointly as the Union, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the National Labor Relations Act, as amended. Respondents filed an answer generally denying that they have engaged in the alleged unfair labor practices. A hearing in this proceed- ing, was held on January 3 and 4, 1974, nn Moundsville, West Virginia. The record was reopened and a further hearing was held on March 20 and 21, 1974, pursuant to an order, dated February 12, 1974, issued by the Administrative Law Judge after receiving and considering the responses filed by counsel for the General Counsel and the Union to an Order To Show Cause, dated January 14, 1974. Thereafter, pursuant to ar- rangements made at the hearing, counsel for General Counsel and counsel for the Union filed memoranda with respect to specified issues, which memoranda have been added to the file of exhibits in this case. The record in the case was closed by an order issued on April 18, 1974. Posthearing briefs were filed on behalf of General Counsel and Respondents and on behalf of Consolidation Coal Company.' FINDINGS OF FACT I JURISDICTIONAL FINDINGS The complaint alleges, Respondents admitted at the hear- ing, and I find, that during all times material hereto the District and the Local were labor organizations within the meaning of Section 2(5) of the Act. These organizations I No objections having been filed, I grant the motion filed on behalf of Consolidation Coal Company for permission to file a brief as amicus curiae. represent the employees at the McElroy mine of Consolida- tion Coal Company, herein called the Company, which is the only facility of the Company involved in this proceeding. Consolidation Coal Company, a Delaware corporation, which maintains its principal office in Pittsburgh, Pennsyl- vania, among other things, is engaged in mining, processing, and nonretail sale of coal from its McElroy mine located in Moundsville, West Virginia. During the 12 months preceding the issuance of the complaint, the Company sold coal valued in excess of $50,000 from its McElroy mine to an employer which is engaged in interstate commerce. The complaint al- leges, the answer admits, and I find, that during all times material hereto the Company was an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE ISSUES In substance, the complaint, as amended at the hearings, alleges that Respondents have violated Section 8(b)(1)(B) of the Act by (1) on February 16 and 27 and March 29, 1973, threatening a work stoppage or strike at the McElroy mine and (2) on March 29, 1973, engaging in work stoppage or strike at the McElroy mine in each case to force the Company to cease employing Lesley L. Naylor, Sr., as a section fore- man. Respondents' defense is: (1) No threats of a work stop- page were made; (2) the 24-hour work stoppage that occurred on March 28-29 was a wildcat strike which Respondents did all they could do to stop; (3) Naylor was not a representative within the meaning of Section 8(b)(1)(B); (4) the striking employees believed that as a section foreman Naylor con- stituted a threat to their safety and they were protesting the employment of Naylor in such position; and (5) pursuant to Section 502 of the Act, the work stoppage may not be deemed a strike because the miners had a good-faith belief that the employment of Naylor in a supervisory capacity created a continuing hazard constituting abnormally dangerous condi- tions for work. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Local represents the employees at the McElroy mine and no other employees. The District is a duly constituted division of the United Mine Workers of America to which belong various local unions that are located in the State of Ohio and in the panhandle counties of West Virginia. The following individuals during-the times material hereto were agents of the respective Respondents: For the District: John Guzek, president; Donald Ohler, safety coordinator; and Thomas E. Pysell, board member. For the Local: Richard Wayt, president; and the members of the mine health and safety committee, namely, Clark Da- vid Shreves, John Ruthers, and Richard McGill, who under the terms of the applicable collective-bargaining agreement are, among other things, charged with making safety inspec- tions and participating in the settlement of health and safety disputes. The following representatives of the Company were in- volved in the transactions with which this proceeding is con- cerned: 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richard Rouse, vice president and general manager of the Ohio Valley division, which includes the McElroy, Ireland, and Schumaker mines; George Schnieder, vice president in charge of operations; William (Red) McClosky, mine fore- man; and John Stock, general superintendent of the McElroy mine. Lesley L. Naylor, Sr., had been employed as a section foreman in the McElroy mines for 4 years. Following an incident that occurred on February 9, 1973, which will be more fully described below, Naylor-was relieved of his posi- tion as section foreman and was assigned to other duties by the Company. About March 27, a rumor began to circulate among the employees at the McElroy mine, which rumor was founded in fact, that the Company planned to restore Naylor to his former position of section foreman. Because of this rumor the miners engaged in a work stoppage which started with the 4 p.m. shift on March 28 and which ended 24 hours later after Company Vice President Rouse had informed Dis- trict Board Member Pysell that Naylor would not be returned to work, and after Pysell had informed the membership of the Local of this assurance at a meeting of the Local which was held at 2 p.m. on March 29. Rouse testified that he dis- charged Naylor after the strike began. Rouse explained that the reason for this action was that Naylor had disobeyed Rouse's instructions to refrain from telling any union people that he was going to return to work before Rouse had had an opportunity to meet with the Local and personally to inform them about the contemplated action. According to Rouse, "I discharged him because he disobeyed my orders in calling people and telling them that he was coming back to work, plus the fact that the mine went on strike as a result of it." Respondents contend that the work stoppage was a spon- taneous wildcat strike for which they were not responsible, although only 2 employees in a unit of approximately 400 worked. Respondents further contend that the work stoppage occurred only because the miners believed that the employ- ment of Naylor as a section foreman would constitute a safety hazard and would create abnormally dangerous conditions for work. General-Counsel contends that the miners' objec- tions to Naylor were of a more personal nature, to wit, that he pushed the men in his section too hard and that other conduct on his part was offensive to the men. B. Status of Naylor The parties stipulated at the hearing that Lesley L. Naylor, Sr., was a supervisor within the meaning of Section 2(11), but Respondents contend that he was not a representative "for the purposes of collective bargaining or the adjustment of grievances." While employed at the McElroy mine, during the times relevant hereto, Naylor was 1 of 23 section foremen who exercised direct supervision over approximately 420 miners. As a section foreman, Naylor supervised seven men. Accord- ing to the uncontradicted testimony of General Superintend- ent John Stock, among his other responsibilities, Naylor: (1) kept track of the worktime of the men in his section, (2) was authorized to assign employees overtime work, (3) was re- sponsible for training employees, (4)-had authority to assign individual men in his section to particular jobs, (5) had au- thority to send men out of the mine for violating work rules, (6) periodically prepared evaluation sheets with respect to the people in his section, which evaluations were given considera- tion in determining the qualifications of miners, and (7) was authorized to settle grievances at the first step of the griev- ance procedure in accordance with the terms of the applicable collective-bargaining agreement.' Contrary to Respondents, I find that during the times material hereto Naylor was a representative within the meaning of Section 8(b)(l)(B) of the Act. C. Naylor Suspended From Position of Section Foreman A dispute between Naylor and Larry Francis Hedrick, a member of his crew, during the morning shift on February 9, 1973, set in motion the chain of events which gave rise to this proceeding. Hedrick's job was bolting planks onto the roof of the mine seam. This is done in conjunction with the operation of a large machine known as a continuous ripper miner. At the time in question, Naylor had directed Hedrick to bolt a plank onto the roof above the machine, and Hedrick had refused saying that he was afraid. According to Hedrick, the miner was so close to the wall of the seam that if anything had gone wrong and part of the overhead had fallen, he would not have had room to jump away from the zone of danger and would have been crushed. Naylor's reaction was to tell He- drick'that he was fired. Hedrick then asked to see a safety committeeman. Naylor responded with a vulgar term. He- drick then asked to see the mine foreman. Naylor again ut- tered a vulgarity. By this time, Hedrick had become upset and nervous and said that he was sick and wished to leave the mine. He then went to the surface. The rest of the crew continued to work. When Hedrick came to the surface, he reported what had happened to members of the mine safety committee, specifi- cally to Shreves and McGill. Hedrick also complained to them that incidents involving Naylor "was getting to be old hat," and told them of a time when Naylor had directed that a belt should be turned on although the mechanic, Woodrow Yoho, had put a tag on the belt signifying that no one should operate the belt because a man might be underneath and could be injured.' The Local's president, Richard Wayt, was summoned and arrived at the mine about 11:15 a.m. Before Wayt arrived Superintendent John Stock called He- drick to his office. Hedrick described what had happened in the mine that morning. He told Stock that he had felt there was not enough room for him to work alongside the machine, although Naylor had said there was sufficient space, that he had become sick, and that Naylor had arranged for him to go to the surface. According to Stock, during that conversa- tion, Hedrick informed him that on February 3 Naylor had asked Hedrick to post a fire boss slip" and Hedrick also 2 Thomas Pysell testified that Naylor did not have authority to adjust grievances because in 1971 Vice President Rouse "had taken the position that no Section Foreman was going to be impowered [sic] to settle any grievances or handle any grievances whatsoever. . ." Regardless of what was said at the time referred to by Pysell, Rouse testified without contradic- tion that he never had issued any instructions which revoked the authority of section foremen to handle grievances, and Naylor testified that as a section foreman he had authority to adjust employee complaints. 3 Hedrick's testimony does not indicate when this incident occurred or that he had personally witnessed the event UNITED MINE WORKERS OF AMERICA , DIST NO. 6 complained about the way Naylor had been treating him and that Naylor was riding the whole crew , "always hollering at people" and "pushing people."5 Stock then called Naylor to his office to hear Naylor's version of the incident.6 Stock testified that, according to Naylor, Hedrick had complained that the clearance was too tight for Hedrick to do the job assigned to him , while Naylor believed that there was sufficient room, and that Hedrick finally said that he was sick and wanted to leave the mine. Stock further testified that Naylor flatly denied the accusa- tion that on February 3 Naylor had instructed Hedrick to post a fire boss slip for him. By the time Hedrick concluded his talk with Stock, the Local's president, Wayt, had arrived at the mine . Hedrick repeated the story to Wayt.' Hedrick also told Wayt about the incident that had occurred the preceding Saturday, Feb- ruary 3, when Naylor had instructed Hedrick to post a fire boss slip for him.' As a result of the report from Hedrick, District Board M ember Pysell was contacted and a meeting with representa- tives of management was arranged for 4:40 p.m. that after- noon, February 9. Superintendent John Stock met with the union representa- tives at the time scheduled . At the meeting, in addition to Stock, were Pysell, the three members of the Local's mine safety committee, and Wayt. Stock testified that mainly they talked about Hedrick's accusation that Naylor had given him a fire boss slip to post, but in a roundabout way other matters crept into the discussion. According to Stock, the following subjects were discussed : (1) the complaint by Hedrick that Naylor sought to make him work that morning in a place where there was insufficient clearance for him to do the job safely; (2) from time to time Naylor had instructed miners to post fire boss slips for him; and (3)" [i]n real general terms, Les Naylor seemed to always be involved" in safety viola- tions. Stock also testified that in addition "it was mentioned about [Naylor] pushing people also."9 At the conclusion of the meeting, Stock informed the union representatives that Naylor would be relieved of his duties pending a discussion '1 A safety examination is required to be made by the section foreman 3 hours before the next producing shift begins. After the safety examination is made, a fire boss slip is posted by the foreman to show that the examina- tion was made. Stock testified that February 3 was Saturday and no produc- tion shift was scheduled to work following the time Naylor asked Hednck to post the fire boss slip so that there then was no requirement to make a fire boss examination or to post a fire boss slip 5 Hedrick testified that after describing to Stock what had happened in the mine that morning, "I told him that [Naylor was] always just pushing his men.... [Naylor] told one guy that he couldn't go to the restroom on company time; he had to go on his own . . " Also, Hedrick complained to Stock about an incident when Naylor pestered him during his dinner break. 6 Stock testified that the "main thing" about which he wished to question Naylor was Hedrick's accusation that on February 3 Naylor had given Hedrick a fire boss slip to post for Naylor. 7 The members of the mine safety committee were with Wayt at the time 8 A fire boss slip is a sheet of paper which is dated and initialed by a foreman . When the paper is hung on a mine face it signifies that certain safety tests had been conducted and that the area is safe. If the tests show that the area is unsafe then a danger sign is hung. The law requires a qualified person, in this case a section foreman, to make the tests and the person who makes the tests to hang the fire boss slip himself. 9 Superintendent Stock testified that complaints about Naylor's behavior were also made at the meetings of February 16 and 27. 545 Stock intended to have with Rouse and Schnieder the next day. District Board Member Pysell testified that he met with the Local's mine safety committee on February 9, before the meeting with Stock . In addition to being informed about what had happened that morning, Pysell was told about the Febru- ary 3 incident when Naylor had directed Hedrick to post a fire boss slip for Naylor . Pysell also was told that on other occasions Naylor had ordered employees Yoho and Hamilton to initial fire boss slips for Naylor . Pysell testified that at the February 9 meeting Stock and Mine Foreman McClosky acknowledged that Naylor had twice been reprimanded for improper handling of fire boss inspections. Stock testified that the reasons which prompted him to suspend Naylor on February 9 were: ( 1) Naylor had handled the situation badly that day; if he had handled it differently "we wouldn't have had the uproar that we were in at that point"; (2) he wished more time to ascertain whether there had been any violation of law in relation to the fire boss slip accusation; and (3) he feared that if he didn 't take such action there might be a strike.10 On Monday, February 12, after Stock had had a meeting with Rouse and Schnieder, he notified Wayt, McGill, and Shreves that a decision had been reached to suspend Naylor for 1 week without pay." Pysell was informed by Shreves about the Company 's deci- sion. Pysell was of the opinion that the penalty was inade- quate because twice before Naylor had been reprimanded'for fire boss irregularities . He asked Shreves to arrange a meeting with management. D. February 16 Meeting A second meeting was held on February 16 at which the Union's opposition to the continued employment of Naylor as a section foreman was the subject of discussion. At this meeting present for the Company were Superintendent John Stock, Vice President Richard Rouse, Division Safety Direc- tor Mich Jane, and Personnel Manager Paul Reck. Present for the District were President John Guzek and Board Mem- ber Thomas Pysell; for the Local were the mine safety com- mittee and Richard Wayt . Also present were two inspectors of the West Virginia Department of Mines, Walter Miller and Grant King, and a representative of the United States Bureau of Mines, John Radozivik.12 At the opening of the meeting, Pysell said that the Union was dissatisfied with the suspension of Naylor . There was discussion of the February 9 incident involving Hedrick and 10 Stock testified that at the meeting of February 9 nothing specific was said about a strike, but the atmosphere was tense , there were present the mine safety committee and a District representative which indicated to Stock "that now we were into a serious matter." 11 Rouse testified, "We felt that because of [Naylor's] alleged act on the fire boss slip that he should be suspended for one week " 12 Stock, Pysell, and Shreves testified that there were still other persons present at the meeting I have not attempted to summarize completely the testimony of each witness who described what took place at this meeting and at the other relevant meetings nor have I referred to all the conflicts in testimony This does not mean that I have disregarded any testimony or testimonial con- flicts. In making my findings as to what occurred, I have given consideration to, and have evaluated the credibility of, the testimony of all the witnesses who were questioned about the events 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other alleged -safety violations by Naylor, including a com- plaint that 8 months earlier Naylor had directed another employee, Woodward Yoho, "to go sign slips down on his return," referring to an alleged fire boss violation. Shreves gave the company representatives a document entitled "Safety Report Form," which listed under six numbered items safety violations involving Naylor that had occurred between October 1970 and March 1971.13 Walter Miller tes- tified that at this meeting or at the February 27 meeting there was discussion about the way Naylor treated the men in his crew and "[t]hat he would holler at his people that were actually working for him and they didn't- seem to be able to satisfy him and things of this nature." There came a point during the meeting when the umon representatives asked the West Virginia mine inspectors for a recommendation. Messrs. Miller and King withdrew from the meeting for consultation. When they returned, they stated that everything they had heard was hearsay, but if what they had heard was true and if Naylor on February 3 had given a fire boss slip to Hedrick to post for him then they would propose a $250 fine against Naylor. Guzek responded, "[W]e can't go along with [Naylor] coming back." Later during the meeting, according to Stock, Guzek suggested that Naylor should not work as a supervisor but should be given other jobs to do "because the men wouldn't work if he came back as the supervisor."14 Stock further testified that, at the end of the meeting, "Richard Wayt stated the union's position that Les Naylor be relieved of his duties and there was a lot of concern about the incident15 and talk about a work stoppage. . . . He said there had been a lot of talk around the mine and we don't want a work stoppage, and we don't want that and the best way to prevent a work stoppage is to relieve Naylor of all of his duties here at the McElroy Mine." Stock further testified that the Union had requested Naylor's removal "[u]ntil the dispute could be settled, the charges proven or disproven .... requested that Naylor be removed of his duties and they would proceed for a settlement of the dispute through the State Department of Mines ... ." The Union wanted Nay- lor relieved of his duties "until the State Department could [conduct] their investigation and take whatever action was necessary." Wayt testified that he did not make the remark attributed to him by Stock, but said, "I possibly could have made a request to management to relieve Naylor of his duties pend- ing a final decision [as to his qualifications] . . . . The only thing that I could have possibly said would have been lets get this thing hashed out before it develops into a doggone work stoppage." According to Wayt, the McElroy mine had a very bad record regarding work stoppages and "we were just at 13 The instrument was prepared and delivered to support the Union's contention that there is a long history of safety violations on the part of Naylor 14 Richard Rouse corroborated the testimony of Stock. Rouse testified, "Mr Guzek said at that time that there would be nobody working for Mr Naylor if [Naylor] went back to work " Rouse further testified that because of this remark the Company assigned Naylor to nonsupervisory duties until the'West Virginia Department of Mines should make a determination re- garding Naylor's qualifications. 15 The incident referred to was the direction by Naylor'to Hedrick on February 3 to post a fire boss slip. this point of starting to settle down and have less work stop- -pages and I didn't want it to rise up and reoccur." The decision reached at the meeting was that Naylor tem- porarily would be assigned to other duties and the Depart- ment of Mines of the State of West Virginia would conduct an investigation as to Naylor's qualifications and would take whatever action was called for.16 All witnesses agree that it was decided that the Naylor question should be resolved by the Department of Mines. In context of the entire meeting, the statements attributed to Guzek and Wayt by Stock were not threats of a strike but expression of view. The testimony regarding this meeting and the meetings discussed below by both General Counsel's and Respondents' witnesses is that the union representatives agreed to be bound by the Department of Mines decision, including a decision restoring Naylor to his former position of section foreman. Of significance also is that, although questioned about the subject, neither Miller nor King recalled any strike threat having been made." E. Developments Between February 16 and March 27 Donald Ohler, safety coordinator for the District, testified that in the second week of February 1973 he received a report that there was a problem at the McElroy mine concerning Naylor. The complaint was that a hazard wascreated because Naylor had instructed miners to post fire boss slips instead of posting them himself. Ohler telephoned Lawrence Layne, mine inspection supervisor for the Mine Enforcement and Safety Administration, formerly known as the United States Bureau of Mines, and requested an investigation of the com- plaint. Layne said that the complaint should be reduced to writing and given to him at the time of a mine inspection. Ohler then requested Shreves, chairman of the Local's mine safety committee, to obtain such statements. At a later date Ohler received statements from Hedrick, Yoho, and Hamil- ton. Ohler then prepared a complaint on the letterhead of United Mine Workers of America, which is called "State- ment of Violation" and is dated February 26, 1973. The Statement of Violation refers to specific fire boss violations by Naylor on January 3 and February 3, 1973, and on two other unspecified occasions. According to Ohler, copies of this statement were delivered at the February 27 meeting to 16 Certification by the Department of Mines of the State of West Virginia is a prerequisite to an appointment as section foreman. According to Pysell, the Union's attitude was that "we should pursue this within the guidelines of the State law and have [Naylor] prosecuted under the State of West Virginia, Department of Mining Law." Pysell further testified that the Union had agreed that the dispute relating to Naylor should be submitted to the State Department of Mines. 17 The fact that a walkout occurred on March 28 when rumors spread among the miners that Naylor was returning to work as section foreman does not necessarily support the contention that Guzek's and Wayt's alleged statements at the February 16 meeting (and Ohler's remarks at the February 27 meeting) should be interpreted as constituting threats of a strike If the Union had called the March 28 strike, then in the light of such later action, the earlier remarks of the union representatives would assume a more menacing coloration However, I find below that the Union did not initiate and was not responsible for the March 28 walkout. Accordingly, the state- ments made by the union representatives at the February 16 (and February 27) meeting were realistic evaluations of the attitudes of the miners and the miners' sensitivity about being exposed to hazardous conditions of work, whether real or imaginary, and were not strike threats UNITED MINE WORKERS OF AMERICA, DIST NO. 6 Layne,11 to representatives of the Department of Mines of the State of West Virginia, and to representatives of the Com- pany. - On February 27 there was another meeting. Present for the Company were George Schnieder, John Stock, Paul Reck, and Mike Janc. Representing the District were Thomas Py- sell[ and Donald Ohler, and representing the Local were the mine safety committee and Wayt. Also present were Law- rence Layne, Walter Miller, Grant King, and Ford Sampson. The principal subject of discussion was the Union's objec- tions to the employment of Naylor as a section foreman. At the February 16 meeting, Miller had advised the union repre- sentatives that for the State to take any action directed to- wards the revocation of Naylor's certification the accusations against him had to be furnished in the form of affidavits. At the February 27 meeting, Ohler distributed affidavits of three miners regarding Naylor's alleged safety violations. After considerable argument Ford Sampson, executive vice presi- dent of the Ohio Coal Association, which association is the spokesman for a majority, of the coal companies in District 6, suggested that the Naylor matter should be referred back to the mine level and that the Local's mine management and the Local's mine safety committee should develop a program to rehabilitate Naylor. The suggestion was adopted. It was decided that John Stock and the mine safety committee should develop a retraining program for Naylor that would be acceptable to both the Company and the Union. John Stock testified that, during the meeting, Ohler "made the statement that if all that he had heard were true, no miner in District No. 6 would ever work for this man," referring to Naylor. Ohler testified he said "[t]hat there would be no miners in District 6 to work for Mr. Naylor until he had sufficient training and he became competent again." Ohler specifically denied that he or any union official re- quested Naylor's discharge." Pysell remembered that "[s]tatements were, probably made that if [Naylor] re- turns to work the men are not going to accept it. They proba- bly will not work." King testified that he does not recall Ohler making the remark attributed to him by Stock, but recalls Ohler having made the statement that Ohler "didn't like this particular type of man referring to Les Naylor as a boss in District 6." Similarly Miller testified Ohler said "that he didn't feel that [Naylor] should be acting as a certified man in this mine or any other mine in his district, and this is what he seemed to be concerned with." I find that the remark made by Ohler was not a threat of strikke. Neither Miller nor Grant, who were disinterested wit- nesses, remembered the remark as having been threatening. Fuithermore, the decision reached at the meeting (which was later abandoned) was to retrain Naylor so that he could resume the position of section foreman. A concomitant threat to strike unless Naylor were permanently removed as section foreman' would be inconsistent with such action on the Union's part, Another meeting was held on the evening of February 27 is Layne testified that at the February 27 meetmg he received a copy of the Statement of Violation and also a copy of the Safety Report Form, which listed alleged violations on the part of Naylor between October 1970 and March 1971 19 Ohler testified that he was of the opinion that if Naylor was retrained he could become a qualified and competent man in the mines 547 between Stock and the mine safety committee. There was discussion concerning a training program for Naylor, and Stock submitted a proposal to the mine safety committee. The committee responded that they wished to study his proposal and would return with a counterproposal. The committee did so a day or two later. Shortly thereafter Richard Rouse informed Stock that there would be no retraining of Naylor, but that the question was being placed in the hands of the State and whatever action the State might take would resolve the matter. Stock met with the members of the mine safety committee on March 2 or 3 and relayed the foregoing information to them. In regard to this meeting Stock testified, "I asked the question ... once the State rules, win, lose or draw , does that mean that Les Naylor now comes back and picks up the pieces and starts over again and Richard McGill said, `Yes. However it goes that will settle it.' "20 Richard Rouse testified that, while the Company was wait- ing for a determination by the State, Naylor was assigned to duties other than supervising men because the union repre- sentatives had made such request and because Guzek had said (at the February 16 meeting) that if Naylor began su- pervising men "there wouldn't be any men working for him." F. The Order of Assessment By an instrument headed "Proposed Order of Assess- ment," dated March 27, 1973, Naylor was penalized $250 for having violated a specified section of the West Virginia code because he had "Assigned an Ineligible person to inspect and travel an escapeway." The order is signed by Grant King for District No. 1, director of the Department of Mines.21 Richard Rouse testified that after he learned of the decision he planned to return Naylor to his job as section foreman on April 3, 1973, because the agreement was that the State's decision would be final. 22, G. The Strike On March 27, rumors began to`circulate among the miners that Naylor was going to return to work as a section foreman.23 Thus, Shreves, who worked on the 4 p.m. to midnight shift, testified that on March 27 when his shift ended several men told him they had heard that Naylor was returning to work the next week. He assured the men that 20 Stock further testified that he told the mine safety committee that he understood that the State would resolve the Naylor controversy and the committee concurred. McGill specifically said, "[W]hatever the State de- cides we will have to abide by " 21 The fine was reduced to $50 on June 8, 1973 22 Grant King testified that in February 1973 he was given information by the Union which alleged-that Foreman Naylor had committed various safety violations On the evidence that the Union presented, he found that one violation had occurred, which is reflected by the March 27, 1973, Proposed Order of Assessment, and that the violation did not warrant withdrawal of Naylor's certification 23 Richard Rouse testified that, on March 27, he informed Naylor that the Company would return him to work on April 3. Rouse directed Naylor not to contact the Union because Rouse intended to meet with the Local offi- cials and to tell them personally what he was planning to do. According to Rouse, "I thought that I could tell them and get the point across and then if the mine went on strike it would be my fault " Rouse further testified that Naylor disobeyed his instructions by snaking several telephone calls on the night of March 27, one to a member of his crew and several to foremen, and that is how the word was spread that Naylor was going to return to work. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was no truth to the rumors because there was an agree- ment with management that when the recommendations of the State issued management would discuss the recommenda- tions with the Local's mine safety committee and would not return Naylor to work without first meeting with the commit- tee. Wayt testified that he had had a similar discussion during the morning shift on March 28. A work stoppage began on March 28 when the men on the 4 p.m. shift refused to go into the mine. John Stock testified that when he learned about the strike he spoke with McGill in the hallway. He asked McGill what the problem was and McGill replied that "the men had heard that Les Naylor was coming back and ... this is why they were not working."24 Richard Wayt, the Local's president, testified that he was working on the day shift on March 28 and, when he came out of the mine 1 or 2 minutes before 4 p.m., John Stock met him in the lamp rack room and asked him to talk to the men because they were not getting dressed for work. Wayt asked what the matter was and Stock said he did not know. Wayt went into the bathhouse where the miners change clothes, climbed onto a bench, and asked the men who were there to tell him what the matter was. The reply was that they had heard that Naylor was returning to work on April 3. Wayt assured them that there was an agreement with management that Naylor would not return to the mine before a meeting between management and the committee took place. There was a response that Wayt was wrong, that Naylor had called members of his crew and other foremen and had told them that he was coming back to work on Tuesday. The men then went home. Wayt testified that he did not learn about the decision of the West Virginia Department of Mines until after he left the bathhouse and met Rouse, Schnieder, and Stock in the hall. Rouse then told Wayt that Rouse had scheduled a meeting with the mine safety committee for 4 p.m. on March 28 because he wanted to talk with the committee about the State's decision. Rouse informed Wayt that Naylor had been fined $250:25 Shreves testified that the instructions to the Local from the District are that whenever there is a work stoppage the Local should call a meeting as soon as possible to find out what is going on and to get the miners back to work. In accordance with these instructions, Wayt, Shreves, and other officials of the Local immediately began to make arrangements to hold a membership meeting of the Local for 2 p.m. on March 29, 24 Pysell testified that rumors were circulated at the mine that Naylor was going to return to work and that the miners were laughing at the mine safety committee because the safety violations would continue unchecked The midnight shift started to walk off but the Local's committee and its officers persuaded the miners to remain on the job until more information could be obtained. Pysell also testified that the decision of the West Virginia Department of Mines "was the final decision and we had to accept it." However, rumors that Naylor was returning to his former position as a section foreman reached the membership before the officers of the Local and the District learned of the decision and before they had an opportunity to explain the State's action and the Union's position to its membership. The reason for the work stoppage, according to Pysell, was that the membership "didn't understand what had happened- What penalty had been administered " 25 Shreves testified that a meeting between the Company and the mine safety committee had been scheduled for 4 p in. on March 28, but that the meeting did not take place because of the strike. which was the earliest practical time, and to publicize it so that the membership would attend. Of the approximately 400 persons employed in the McEl- roy mine, no more than 2 went to work during the 24-hour period of the work stoppage. Richard Rouse testified that on the afternoon of March 28 he had a chance meeting with Pysell at the Schumaker mine. There was a discussion about the strike at the McElroy mine and Pysell said he understood that the reason for the strike was that the miners had heard that Naylor was returning to work. Rouse further testified, "I made some reference [to] the fact that what [the Company] ought to do is transfer Mr. Naylor to Ohio and [Pysell] said that would solve your prob- lem but it wouldn't solve mine." Rouse then said that the Company would not return Naylor to the mine as a supervi- sor and Pysell responded "that the men would probably re- turn to work." According to Rouse, the conversation between him and Pysell was not intended to be "a deal." Rouse further testified that he already had reached the decision to discharge Naylor.26 A membership meeting of the Local was held at 2 p.m. on March 29. The meeting was brief. Pysell, who was present, informed the membership that Rouse had told him that Nay- lor would not be reemployed at the McElroy mine. Local President Wayt then stated that the work stoppage was unau- thorized and ordered the men to return to work. The work stoppage ended at 4 p.m. March 29. H. Naylor's Safety Record Respondents adduced evidence purporting to show that Naylor had an extensive history of safety infractions which caused the miners in good faith to believe that his continued employment represented a danger to them. Larry Hedrick testified that, on February 3, Naylor flagged him and another man at the dispatcher's shanty. Naylor gave Hedrick a fire boss slip to post, which Hedrick posted. He- drick further testified that, on January 3, Naylor had given him another fire boss slip to hang in the return. Hedrick had reported this incident to the shift foreman who had assured Hedrick that "[w]e'll take care of it. We'll handle it." Woodrow Yoho testified that in mid-1972 Naylor had asked him to post a fire boss slip. At the time, Yoho did not realize that this was a violation of law. Subsequently he dis- cussed the subject with Mine Foreman McClosky. Clark David Shreves testified that in 1970 he received a report from Tom Hazzelet that Naylor had ordered Hazzelett to run a miner for approximately 3 hours when there was no water available to cool the machine because the water hoses were broken. The incident was reported to the mine foreman. Also, in the same year, the mine safety committee discussed with management an incident where Naylor had ordered men to go into areas behind danger signs to remove supplies. With respect to both incidents, management had advised the mine safety committee that they would straighten out Naylor. Shreves and others testified about an incident when Naylor came out of the elevator at the bottom of the mine shaft and, to force his way through a group of men waiting to get on the 26 Pysell's version of the conversation does not differ significantly from Rouse's version UNITED MINE WORKERS OF AMERICA, DIST NO. 6 549 elevator, he violently waved his bucket and his arms as he plunged into the crowd. Shreves further testified that, at a mine safety committee meeting in the last quarter of 1972, McClosky, who then was assistant to the general superintend- ent, was given a sheet which listed Naylor and six other foremen as "continuously causing complaints to -be made over safety." John Ruthers testified that in 1971 he received a complaint that. Naylor would not let his men put in 10-foot bolts which were called for as part of the roof pattern. These 10-foot bolts represented extra support for the roof of the mine. Ruthers discussed this complaint with Stock and Schnieder. Ruthers received an identical complaint about 3 days later. He again spoke to Stock and Schnieder about it. There were no subse- quent recurrences. R uthers described another complaint he had received which concerned an incident in which a continuous ripper miner had overheated and Naylor had the inspection plate removed and a fan, which normally blows air at the face of the mine, attached to the side to cool off the connection. This incident, according to Ruthers, occurred in early 1973. Fur- ther, according to Ruthers, there were three valid fire boss complaints made concerning Naylor in a period of 3 months. Richard Wayt testified that "it seemed like every union meeting, Naylor was in the safety committee's report either causing a safety violation or having someone else cause a safety violation."27 Also, at the February 16 meeting, Shreves gave the Com- pany a document listing six areas of safety violations by Nay- lor which occurred between October 1970 and March 1971, and, at the February 27 meeting, Ohler delivered to the Com- pany a copy of his Statement of Violation. After the hearing in this matter was initially closed, the Supreme Court on January 8, 1974, issued its decision in Gateway Coal Company v. United Mine Workers of America, District 4, Local 6330, 414 U.S. 368, which focused on several subjects which are in issue in this proceeding. The record was reopened and a further hearing was held on March 20 and 21, 1974, to give the parties an opportunity to supplement the evidence previously adduced in light of the rulings in the Gateway Coal decision. Among other things, in the Gateway Coal case the Court held that "a work stoppage called solely to protect employees from immediate danger is authorized by Section 502," but that a union seeking to justify under Section 502 an otherwise prohibited work stoppage must present "ascertainable, objec- tive evidence supporting its conclusion that an abnormally dangerous condition for work exists." In the statement of their defense made at the opening of the hearing in this case, Respondents contended, among other things, that pursuant to Section 502 of the Act the work stoppage may not be deemed a strike because the miners had a good-faith belief that the employment of Naylor in a supervisory capacity created a continuing hazard constituting abnormally danger- ous conditions for work. Proof of such good-faith belief alone would not constitute a defense because in Gateway Coal the Supreme Court specifically reversed the holding of the court 27 F'ysell testified, "It wasn't that [the miners] didn't like [Naylor], they just didn't like his attitude towards safety. I never heard anything personal about him." of appeals that a "good faith apprehension of physical dan- ger" may satisfy the criteria of Section 502. At the reopened hearing, Respondent offered additional evidence regarding Naylor's unsafe proclivities in order to establish by "ascer- tainable, objective evidence" that the continued employment of Naylor as a section foreman in the McElroy mine would constitute an abnormally dangerous condition for work. In attendance at the reopened hearing was Lawrence L. Layne, who is a coal mine inspection supervisor of the Wheel- ing field office in the Mine Enforcement and Safety Adminis- tration (successor to the United States Bureau of Mines) of the Department of Interior. Towards the end of the hearing, Mr. Layne was called to testify as to whether various inci- dents described at the hearing violated regulations published in Title 30 of the Code of Federal Regulations, which set forth safety standards for underground coal mines subject to the Federal Coal Mine Health and Safety Act of 1969. Layne was accepted by all parties as a qualified expert witness in connec- tion with mine safety matters. The evidence relating to Naylor's alleged unsafe conduct in summary is as follows: Drilling: Keith Ware testified that in August 1972, while he was assigned to the job of bolting planks to the mine roof, he observed loose overhead slate which he proposed to pry down, the normal procedure in such case, but Naylor in- structed him not to do so. As Ware was drilling into the rock, it broke into pieces and fell around him and bits of rock hit him on the shoulder. His injuries were slight and he was able to continue at work. With respect to this incident, Layne testified that any observable loose rock should be taken down before planks are attached to the roof. If the loose rock can- not be pried out of place, then the proper procedure is to back up the miner and cut down the loose rock, using the cutting bits of the machine. According to Layne, no specific regula- tion was violated, but poor judgment was shown and a safety hazard was created by not prying out the loose rock before bolting the roof plank in place. If there had been a difference of opinion between Ware and Naylor as to whether the piece of rock in question was loose, the fact that the-rock broke when Ware drilled into it confirms Ware's judgment that it was hazardous to bolt a plank to that section of the overhead without first prying out the loose rock. Blowing cables: Woodrow Yoho, a first-class mechanic, testified that about September 1971 Naylor instructed him to blow a cable which, because of an internal short circuit, was tripping a circuit breaker. When Yoho said he did not know how to do that, Naylor showed him.28 (As explained by John Stock, sometimes a ground wire of an electric cable will fray and a piece of wire about the size of a paper staple will work its way through the insulation and contact one of the electrical conductors which will cause the circuit breaker to trip. By inducing power into the ground wire, the fault will burn off and the cable will be cleared. Blowing cable normally should not produce a shock because the ground wires remain undisturbed. However, it is possible when blowing a cable to cause a fire which might injure persons in the vicinity.) Yoho further testified that about 2 days later Naylor again in- structed him to blow the cable and, because Naylor had 28 Naylor testified that he does not know how to blow cable 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turned power into the machine while Yoho had the ground wires detached, Naylor received an electrical shock.29 Layne testified that blowing cable has been an accepted way of discovering a short circuit or a fault in cable because there have been no other reliable fault indicators available. However, blowing cable constitutes a safety hazard because this practice can result in burns or even electrocution. There is no specific regulation forbidding blowing cable, but in April 1970 an internal directive was issued by the Bureau of Mines which prohibits blowing cable unless done in a fire- proof enclosure off the working section and under controlled conditions. Although this directive was not circulated outside the Agency , Layne is of the opinion that the management of the mines was told about the directive by the Agency's inspec- tors. Whether Yoho on the occasions in question blew the cables on his own initiative or on the instructions of Naylor is im- material. In either case, it was done with Naylor's consent. It is noted that these incidents occurred about September 1971. There is no evidence that Naylor permitted cable to be blown at any later time and, while the procedure is hazard- ous, it has been an accepted practice in the mines over a long period of time. Driving equipment over electrical cable: Woodrow Yoho testified that in late 1972 a machine was driven over a cable in order to untangle the cable. According to Yoho this might have caused the electrical cable to tear and might have elec- trocuted the machine operator. Yoho spoke to Naylor about the incident, who advised him that the practice was permissi- ble so long as planks or rock are laid alongside the cable to protect the cable. Yoho referred the matter to the mine safety committee and subsequently Naylor informed Yoho that he would no longer untangle cables by running machines over the cable. Naylor testified , and was confirmed by Yoho's testimony, that on the occasion in question the cable was protected or bridged by planks of wood. Layne testified that equipment may be moved over electrical cable if the cable is adequately protected by bridging with suitable materials such as wooden planks. Accordingly, this incident does not consti- tute evidence of an unsafe practice. Red hat working behind danger sign :John P. Ruthers testi- fied that in October 1972 he and other members of the mine safety committee, while on a routine inspection , observed a red hat (an employee who has less than 6 months' experience in mines) pulling protective curtains from an area behind a danger sign. Naylor was present. The committee discussed the incident with him and "agreed that it was just a mis- demeanor and that was about all" and no further action was taken in the matter. Layne testified that regulations prohibit unauthorized persons from entering any place designated as dangerous . The testimony with respect to the incident in question is vague. It is not clear that the area in question was forbidden to employees. The members of the mine safety committee who observed the alleged violation did not deem 29 Naylor testified that on this latter occasion Yoho suggested that he blow the cable in order to clear the trouble which was interfering with the use of the machine . After the cable was blown and the leads reinserted, Naylor got shocked. Naylor told Yoho what had happened and Yoho re- plied that the ground wires had not been connected Naylor cautioned him that equipment cannot be run without the ground wires being connected the matter significant . The safety hazard involved was- at most minimal. Elevator incident. Anthony Martin Skrypek testified that in the latter part of 1972 Naylor came off the elevator into the mine and, to make his way through the crowd waiting outside the elevator, began to -swing his arms and wave his lunch bucket, and in the process hit Skrypek with the bucket. Shreves also testified about this incident . According to Nay- lor, so many men were grouped in front of the elevator that he had to force his way through them. Although Naylor's conduct in pushing his way through the crowd may have been overly aggressive, no one was in peril of serious injury, and thus the incident did not create an abnormally dangerous condition for work. Removal of ventilating tube and inspection plate: Larry Hedrick testified that on an occasion in October or November 1972 the contactor box (where switches and electrical con- tacts are housed) of the miner overheated. The machine was stopped, the inspection plate taken off the contactor box, and then the ventilation tube, which is used to ventilate the coal face, was removed from its normal position and was used to cool the contactor box. When the miner was put back in operation, the ventilating tube was returned to its place, but the inspection plate was not replaced. Hedrick reported this incident to the mine safety committee . Naylor testified that the incident did occur, but that it was not on his instructions and further that when the miner was returned to operation the inspection plate was in place. Lawrence Layne testified that no violation of safety regulations was involved when the ventilating tube was used to cool the contactor box. However, according to Layne, it would be a violation to operate the miner with the inspection plate off the contactor box. As to that portion of the incident, Hedrick did not testify that Naylor saw or was aware that the miner was being operated with the inspection plate removed from the contactor box and Naylor testified that so far as he knew it had not happened. I find the evidence in regard to this incident does not establish culpability on the part of Naylor. Moving lunch buckets: John P. Ruthers testified that there was an occasion when Naylor moved the lunch buckets of the men in the section to a place which Ruthers considered un- safe. The men complained to the shift foreman, who permit- ted them to eat in another section of the mine. Naylor testi- fied that he had moved the buckets because the men had placed them so far from the working face of the mine that too much time would have been spent during the meal break going to and from the place where the buckets had been left initially. He further testified that he moved the buckets when the men ignored his instructions to place them closer to the working face and that where he placed the buckets was a safe place to eat. Even were Ruthers' description of the incident accepted, I find that the incident did not create an abnormally dangerous condition for work. - Roof bolts: Larry Hedrick testified that four times between September 1972 and February 1973 Naylor instructed him to use 6-foot roof bolts when Hedrick believed that 10-foot bolts should have been used This testimony merely reflects that there was a difference of opinion between Hedrick and Nay- lor. There is no evidence that Naylor failed to comply with the established roof support plan or regulations applicable UNI77ED MINE WORKERS OF AMERICA, DIST NO. 6 thereto or that any danger arose from the use of 6-foot bolts on the occasions in question. Using dull cutting bits: Ruthers testified that there was an occasion that Naylor directed Joe Wood to continue cutting into the coal face although Woods had complained that the bits were dull and were not cutting properly. According to Ruthers, the use of dull bits could cause a dust explosion if all other conditions favoring an explosion existed. John Stock testified that he had instructed the foremen to change bits when it took the miner 30 to 35 seconds to cycle (with new bits the time of a cycle is 20 to 25 seconds). Based on Ruthers' testimony, I cannot find that on the occasion in question the bits were dangerously dull. Changing bits without blocking the head: James Marsh tes- tified that one day in January 1973 he observed the men in Naylor's section changing the bits on a miner without having blocked the head. This is an unquestioned safety violation. Marsh further testified that he observed Naylor at the oppo- site side of the machine and mentioned to Naylor that the head was not blocked while the bits were being set. Naylor's reply was, "Get your safety glasses on." Naylor testified that while the bits were being changed he was in a different mine entry. When he came to the miner, Marsh was there and told hint that the men were setting the bits with power on the miner and the head not blocked. Naylor instructed the men to shut off the power and to block the head. Naylor further testified that he had instructed the men to change the bits and that they should have turned off the power and should have blocked the head. I believe that Naylor's testimony is not inconsistent with Marsh's and find that as soon as he learned of the unsafe condition he took steps to remedy it. Replacement of circuit breaker: James Marsh, who was employed in the mine as a first-class electrician, testified to an incident where he asked Naylor for permission to change a defective oil circuit breaker which would have required turning off the power to the machines then in operation. Naylor told him that he should wait and should replace the breaker during the shift change. Marsh telephoned Mine Foreman McClosky, who gave instructions that the circuit breaker should be replaced at once, which was done. Law- rence Layne testified that defective circuit breakers should be repaired immediately. In this situation, there was no violation of regulations because the repair was promptly made. Posting fire boss slips: Larry Hedrick testified that on Janu- ary 3 and February 3, 1973, he posted fire boss slips for Naylor at the latter's request. Keith Ware testified that about September 1972 he hung a fire boss slip for Naylor at the latter's request. Also, Woodrow Yoho testified that in mid- 1972 he posted a fire boss slip for Naylor. Naylor admitted the incident about which Yoho testified and also that he gave Larry Hedrick a fire boss slip to post on January 3, 1973, but denied the other incidents. It is noted that on March 27, 1973, Naylor was found guilty of a fire boss violation by the Depart- ment of Mines of the State of West Virginia. Layne testified that the regulations require the person who makes the fire boss examination to post the slip himself. It is conceded that Naylor was guilty of at least two fire boss violations and, if all testimony offered by Respondents in this regard is credited, Naylor may have been guilty of as many as four fire boss violations. 551 I Conclusion Regarding the Section 502 Issue The McElroy mine personnel and the union officials were concerned about Naylor's safety practices. The series of meet- ings held during the month of February confirm the genuine- ness of such concern and their belief that the continued em- ployment of Naylor as a section foreman constituted a threat to the safety of the miners. On the other hand, Respondents contend that they did not object to Naylor's employment, or even to his employment as a section foreman, as reflected by the meeting of February 27, 1973, provided that he first went through a satisfactory course of retraining and learned to function safely. I find that the miners and the union officials had a good- faith belief that the employment of Naylor as a section fore- man without a period of retraining represented a danger to the men in the mine. However, I find that the evidence ad- duced does not demonstrate that his presence in the mine as a section foreman created an abnormally dangerous condition for work. As I understand Section 502, it does not excuse a work stoppage unless there existed a condition which then and there constituted an abnormally dangerous condition for work. Although the testimony summarized above shows that Naylor over a period of 2 years may have been guilty of up to four fire boss offenses and three other safety infractions, in the aggregate they do not establish that his presence in the mine as a section foreman constituted an immediate danger. The term "abnormally dangerous condition for work" means that the employees are in imminent peril. It is not enough to establish a speculative possibility of hazard based , as in this case, on sporadic safety violations of a section foreman over a period of several years.30 J. Conclusions 1. As to nature of the objections to Naylor General Counsel suggests that the objections to Naylor stemmed from the fact that he pushed the men in his crew harder than they wished and because he was otherwise offen- sive to the rank-and-file employees. The evidence reflects that there were complaints about Naylor's behavior. Hedrick on February 9 told Superintendent John Stock that Naylor was "always just pushing his men." Similar complaints were voiced at the meetings on February 9, 16, and 27. Thus, according to Walter Miller, as assistant inspector for the West Virginia Department of Mines, at either the February 16 or the February 27 meeting, there was some discussion about the way Naylor treated the men in his crew, that "he would holler" at them, that the men didn't seem to be able to satisfy him, and things of like nature. Despite this, how- ever, I find that the evidence in the case is overwhelming that the reason the mine employees and the Union wanted Naylor relieved of his duties as section foreman, at least until he received further training, was their belief that in the perform- ance of his duties Naylor ignored established safety precau- tions and thereby created hazardous conditions for work. 30 It is unnecessary to determine the following questions discussed in the Company's brief (1) whether an individual may be the continuing source of an abnormally dangerous condition and (2) whether Sec. 502 protects only those employees who are directly threatened by the condition. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Complaints about Naylor's unsafe work practices were regis- tered with the Company on several occasions prior to Febru- ary 9, 1973. Thus, Clark David Shreves, chairman of the mine safety committee, testified that in the last quarter of 1972 at a regular safety committee meeting he gave the Company a document which listed the names of seven section foremen, including Naylor, as "continuously causing complaints to be made over safety." Pysell testified without contradiction that at the February 9, 1973, meeting Superintendent John Stock and Mine Foreman William McClosky acknowledged that Naylor had been reprimanded on two occasions for fire boss irregularities. The evidence concerning the meetings held in February 1973 reflect that both the union representative and company management were concerned with Naylor's alleged violations of safety precautions and any complaints voiced about his personal behavior at these meetings were purely incidental to the principal subject of discussion. The event which precipitated the instant controversy occurred when Hedrick left the mine on February 9. After Stock spoke with Hedrick, Stock summoned Naylor. Stock was asked at the hearing what prompted him to call Naylor and he answered, "The allegation that Larry Hedrick made, that Les [Naylor] gave him the fire boss slip to post a week earlier." Thus, Stock's concern was focused upon the accusation re- garding Naylor's disregard for safety regulations, not upon whether Naylor was a demanding supervisor or upon his personal relationships with his work crew. At the meeting that night, the parties gave most of their attention to Naylor's questionable safety practices. According to Stock, the sub- jects discussed were Hedrick's complaint about Naylor which led Hedrick to leave the mine that morning, the accusation against Naylor regarding fire boss violations, and the fact that "in real general terms, Les Naylor seemed to always be in- volved" in safety violations; only incidentally " it was men- tioned about [Naylor] pushing people also." The meetings held on February 16 and February 27 were almost totally devoted to discussion of allegations regarding Naylor's viola- tions of safety precautions and what to do, including retrain- ing Naylor and submitting the matter to the West Virginia Department of Mines for resolution. The fact that representa- tives ofthe West Virginia Department of Mines and represen- tatives of the United States Mine Enforcement and Safety Administration attended these meetings support the conclu- sion that the purpose of the meetings was to resolve safety problems and not personal complaints about Naylor. 2. As to Naylor's suspension between February 9 and March 29 The operative allegation of the complaint, as amended at the hearing, reads as follows: "Respondents, by their officers, agents, and representatives, on or about February 16, Febru- ary 27, and March 29, 1973, threatened a work stoppage or strike, and, on or about March 29, 1973, engaged in such work stoppage or strike to force Consolidation to cease em- ploying the Charging Party as a supervisor at the Mounds- ville, West Virginia, facility." On February 9 Naylor was suspended from his job as section foreman because of the Union's complaints. At the February 9 meeting and the February 16 and 27 meetings, the Union insisted that Naylor should not be returned to duty as section foreman until the question of his -competence is re- solved. The Company acceded, although initially the Com- pany had intended to suspend Naylor for 1 week only. Thus, Respondents bear responsibility for the fact that Naylor was suspended initially on February 9 and was not thereafter restored to his position as section foreman before March 29, 1973. However, Naylor's removal from the position of section foreman in the period between February 9 and March 29, 1973, is not alleged in the complaint as a violation of the Act, although the complaint alleges that on February 16 and 27, 1973, Respondents threatened a work stoppage to force the Company to cease employing Naylor as section foreman. General Counsel does not give any reason for this incon- gruity. A possible explanation may be that beginning on Feb- ruary 9 the Company and the Respondents were engaged in a dispute, subject to the grievance procedures of the parties' collective-bargaining agreement, concerning a mine safety question, and it was,agreed that pending resolution of the dispute the alleged dangerous situation should be alleviated by suspending Naylor from the position of section foreman. Therefore, during the interval between February 9 and the Department of Mines decision on March 27 determining Naylor's qualification, Naylor's suspension was for a reason unrelated to his function as the Company's representative "for the purposes of collective bargaining or the adjustment of grievances" and consequently was not within the purview of Section 8(b)(1)(B).31 3. As to Respondents' responsibility for Naylor's discharge Respondents argue that Naylor was discharged by the Company for insubordination and not in response to the Union's pressures or the strike. Superintendent Stock sus- pended Naylor from his duties as section foreman on the night of February 9, 1973. He gave three reasons for his action: first, Hedrick's complaint and Stock's belief that "if Les Naylor would have handled the situation a little differ- ently at that point, we wouldn't have had the uproar that we were in at that point"; second, Stock needed time to investi- gate whether Naylor had violated any of the mining laws of the State of West Virginia, particularly laws applicable to fire boss inspections; and third, although no mention of strike was made by any of the union representatives on the night of February 9, Stock nevertheless, feared that if he did not sus- pend Naylor there might be a strike. General Counsel does not contend that the suspension of Naylor on this occasion was unlawful. The Company initially decided that Naylor should be suspended for 1 week because of an alleged fire boss inspection violation on Naylor's part. At the February 16 meeting, the Union took the position that a 1-week suspen- sion was inadequate. It was then decided that Naylor tem- porarily would be relieved of his duties as section foreman and would be assigned to other work until the Department of Mines of the State of West Virginia could conduct an investigation of Naylor's qualifications and could take appro- 31 If, during the period between February 16 and March 29, 1973, Re- spondents did not violate Sec. 8(b)(1)(B) because of their insistence that Naylor should be suspended from the position of section foreman, then the union representatives' alleged incriminatory remarks made at the February 16 and 27 meetings, which impelled the Company to accede to the Union's position, likewise cannot be construed to have violated the Act. UNITED MINE WORKERS OF AMERICA, DIST NO. 6 priate action. On February 27, the Company's and the Union's representatives entered into a tentative understand- ing that they would develop a training program for Naylor and upon his successful completion of the program he would be returned to his previous position. However, a few days later this understanding was withdrawn and the Union and the Company agreed to permit the Department of Mines to resolve the Naylor controversy. The parties agreed to accept whatever decision the Department of Mines reached. in the meantime, Naylor did not work in the mine. On or about March 27, a decision was reached by the director of the Department of Mines of the State of West Virginia that Naylor should be fined a dollar amount for a fire boss violation. Apparently notice of this decision was promptly transmitted to the Company but not to the Re- spondents. Richard Rouse scheduled a meeting for 4 p.m. on March 28, 1973, with the mine safety committee at which time he intended to advise the committee of the State's deci- sion. According to Rouse, "I thought that I could tell them and get the point across and then if the mine went on strike it would be my fault." The testimony of Shrevgs and Wayt is that they also understood that the Company would take no action regarding Naylor without first meeting and discussing the subject with the mine safety committee. On March 27, 1973, Rouse advised Naylor that the Com- pany was going to return him to work as section foreman on April 3 and specifically instructed Naylor not to contact the Union because Rouse first wished to meet with the Local and discuss the matter with them. However, Naylor ignored these instructions and told one man on his crew and several fore- men that he was going to return to work. According to Rouse, that is why the rumor spread among the miners on March 28. Rouse testified, "I've discharged [Naylor] because he disobeyed my orders in calling people and telling them that he was coming back to work, plus the fact that the mine went on strike as a result of it." Rouse specifically testified that he made no deal with the Union to end the strike and did not testify that he had discharged Naylor in order to bring the strike to an end. Thus, according to Rouse, Naylor was dis- charged for his insubordination which led to a work stoppage. This is not a situation, such as often occurs in 8(a)(3) cases, where an employer when discharging an employee is in- fluenced by both lawful and unlawful considerations and, because he is unable to disentangle the lawful from the unlaw- ful motives, the discharge is held to be unlawful. Neither the Company nor Rouse is accused of having engaged in unlaw- ful conduct. There is no basis for imputing to Rouse a desire to conceal or distort the reason' for Naylor's discharge. I credit Rouse's testimony that he discharged Naylor for in- subordination and therefore find that General Counsel has not proved by a preponderance of the evidence that Respond- ents caused or were responsible for Naylor's discharge. This, however, does not mean that the violations of the Act alleged in the complaint did not occur but only that an appropriate remedy would not include any reimbursement to Naylor for loss of wages.32 32 See N.L R.B v Silver Bay Local Union No. 962, International Brother- hood of Pulp, Sulphite & Paper Mill Workers, AF-CIO [Alaska Lumber & Pulp Co, Inc.], 510 F.2d 1364 (CA. 9, 1974), where the court questions whether the Board may order backpay for a violation of Sec. 8(b)(1)(B). 4. As to the applicability of Section 8(b)(1)(B) 553 The substantive question in this case is not whether Re- spondents caused Naylor's discharge but whether Respond- ents exerted restraint or coercion upon the Company to com- pel the removal of Naylor as section foreman. Section 8(b)(1)(B) is not confined to a situation where a union objects to the way in which a supervisor may represent the employer in collective bargaining or in grievance adjustments. Nor- mally, whenever a union seeks to dictate who may be em- ployed as a supervisor there is a putative violation of Section 8(b)(l)(B).33 Quoting from N.L.R.B. v. International Ladies' Garment Workers' Union, AFL-CIO [Slate Belt Apparel Con- tractors Assn.], 274 F.2d 376, 378 (C.A. 3, 1960), Respond- ents contend that such application of the statute "is not abso- lute or immutable." They argue: "Certainly the Section, tempered by the rule of reason, cannot be applied here, where the union actions (1) were beyond doubt motivated by a good faith belief that without further safety training, Mr. Naylor's presence constituted an imminent danger to the lives of hun- dreds of men (not to mention valuable natural resources), (2) where the unions only sought to have him trained and did not seek his outright discharge, and (3) where the men stopped work only because they were told that their employer was about to break an agreement a g r e e m e n t . In expanding upon this argument, Respondents contend that "a union does not ille- gally coerce the, employer when it seeks action against a supervisor for acts not undertaken in carrying out his em- ployer's policies." The cases cited by Respondents, Local Union No. 453, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Syd Gough and Sons, Inc.), 183 NLRB 187 (1970), and Meat Cutters Union Local 81 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. N.L.R.B., 458 F.2d 794 (C.A.D.C., 1972), are inapposite as they deal with the ques- tion of whether a union may legally discipline a supervisor- member for acts which are not performed by the individual in furtherance of his obligations as the employer's representa- tive. This case does not involve union discipline. Further, in this case the objections to Naylor arose from and were di- rectly related to the performance of his duties as a section foreman in the McElroy mine. Respondents further contend that "where a union takes action against a supervisor because of his personal characteristics, and those personal character- istics have a direct impact upon the employee's job interests (e.g., not mere dislike of the individual), the conduct is pro- tected." Cases cited by Respondents, such as Plastilite Corpo- ration, 153 NLRB 180 (1965); Dobbs Houses, Inc., 135 NLRB 885 (1962); and American Art Clay Company, Inc., 142 NLRB 624 (1963), enfd. 328 F.2d 88 (C.A. 7, 1964), are 33 Board cases interpret the term "representatives for the purposes of collective bargaining or the adjustment of grievances " broadly to include all employees who are supervisors within the meaning of Sec. 2 (11) of the Act. This has come to be known as the "reservoir doctrine " Toledo Locals Nos. 15-Pand 272 oftheLithographers and Photoengravers International Union, AFL-CIO (The Toledo Blade Company, Inc.), 175 NLRB 1072 (1969), enfd. 437 F 2d 55 (C A 6, 1971), International Association of Heat & Frost Insulators & Asbestos Workers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189 NLRB 854 (1971), Detroit Newspaper Printing Press- men's Union No. 13, International Printing Pressmen and Assistants' Union of North America, AFL-CIO (The Detroit Free Press), 192 NLRB 106 (1971). 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inapplicable because they deal not with the question of whether a labor organization has engaged in a violation of Section 8(b) of the Act but rather with a different, although not entirely unrelated, question of whether employee conduct is protected activity under Section 7 of the Act. In the context of alleged violations of Section 8(b)(1)(B), Respondents' ar- gument has been rejected by the Board in Communications Workers of America, Local No. 2550, AFL-CIO (American Telephone and Telegraph Company, Long Lines Department), 195 NLRB 945 (1972); Silver Bay Local Union No. 962, International Brotherhood of Pulp, Sulphite and Pa- per Mill Workers, AFL-CIO (Alaska Lumber & Pulp Co., Inc.), 198 NLRB 751 (1972), affd. 510 F.2d 1364 (C.A. 9, 1974); and Laborers' International Union of North Americaa AFL-CIO, Local 478 (International Builders ofFlorida, Inc.), 204 NLRB 357 (1973). The only case which seems to support Respondents in any way is Carpenters District Council of Sabine Area and Vicinity (Miner-Dederick Construction Cor- poration), 195 NLRB 178 (1972). There the Board adopted the following rationale: 5. As to Respondents' responsibility for the strike I now turn to the more nettlesome problem of whether Respondents may be charged with responsibility for the strike which began on March 28, 1973. I conclude from my re- search, including reading the cases cited to me by General Counsel, Respondents, and the Company, that a union is not automatically responsible for the strike action of its member- ship. For'responsibility to attach the union must have called, adopted, encouraged, ratified, or prolonged the continuation of the strike.35 As union leaders frequently deny responsibil- ity for work stoppages the cases cited to me, for most part, - 35 Local 760, International Brotherhood of Electrical Workers, AFL (Ro- ane Anderson Company), 82 NLRB 696, 704 (1949), cited by General Counsel, is not to the contrary In his brief, General Counsel quotes the following extract from the cited case: The very fact of such mass quitting alone supplies persuasive evidence, sufficient in the absence of a plausible and adequate contrary explana- tion, to support an inference that the cessation of work was the outcome of strike or concerted action aimed at a common objective It would be a rather harsh and rigid application of 8(b)(1)(B) to say that a union could not under penalty of violating the law help to protect its members and employees it represented against potential danger, be- cause the danger happened to be in the person of a company supervisor. Plainly there is tension between 8(b)(1)(B) on the one hand and the protected rights of employees and their representatives, and perhaps even a union's obligation to protect the employees, on the other. The test of whether the attempt to remove a supervisor ,)(1)(B) seems . . . to turn more violates Section 8(b on the Union's motivation, that is, whether it seeks his removal . . . because of his supervisory conduct, or for some other reason. However, this dictum has been rejected, at least implicitly, in the cases cited above.", As I find that the objective of the strike was not related to Naylor's function as a representative "for the purposes of collective bargaining or the adjustment of grievances," the opinion of the Supreme Court, issued on June 24, 1974, in Florida Power & Light Company v. Interna- tional Brotherhood of Electrical Workers, Local 641, 622, 759, 820 and 1263, 417 U.S. 790 (1974), suggests for that reason alone there may be no violation of Section 8(b)(1)(B) in this case. However, such conclusion would be inconsistent with prior Board decisions . Because I am recommending dismissal of the complaint on other grounds, it is unnecessary for me to anticipate here how the Board will revise its interpretations of Section 8(b)(1)(B). 34 It is unnecessary to decide whether the applicable collective-bargaining agreement imposes a no-strike obligation upon Respondents because that question would become material only if it were necessary to decide whether the March 28, 1973, strike constituted a protected activity within the mean- mg of the Act. However, this quotation goes to the question of whether a mass quitting was collective rather than individual action, and not to the question of union responsibility for a work stoppage. Furthermore, the footnote to this text, is as follows: That is not to say, however, that, where the employees are organized, an inference is also justified that the strike or concerted action was authorized by their labor organization. Union responsibility must be established by an independent showing The principle expressed in North American Coal Corporation v. Local Union 2262, United Mine Workers ofAmenca, et at, 86 LRRM 2339, 2344 (C A. 6, 1974), that "unions may only be held responsible for the authorized or ratified actions of its officers and agents," is followed by the Board South- east Idaho Building and Construction Trades Council and its local members (Westinghouse Electric Corporation), 164 NLRB 773, 779 (1967) As Gen- eral Counsel points out in his brief, "The criterion is `whether the union gave its approval to the action taken,' Local Union No. 2, United Association of Journeymen and Appren tices of the Plumbing and Pipe Fitting Industry, etc. (Astrove Plumbing), 152 NLRB 1093, 1105 " In the brief filed on behalf of the Company the contention is made that "[t]he principle is well settled that as long as a union is functioning as a union it must be held responsible for the mass action of its members " Such assertion is found in cases cited in the brief and has been repeated as recently as May 17, 1974, in Wagner Electric Corporation v Local 1104, Interna- tional Union of Electrical and Machine Workers, 86 LRRM 2602, 2603 (C A. 8, 1974). However, in most cases where the assertion appears it is dictum because the courts in those cases found, based on direct or circum- stantial evidence, that the union had instigated, adopted, or ratified the strike. In any event, "[t]he Board has taken the position that in order to establish the liability of a union for [a] violation . it is not sufficient that the rank and file members of the union engaged in the . conduct. Officials must have participated in, ordered or authorized the conduct." New Power Wire and Electric Corp. and P & L Services, Inc v. N.L.R B., 340 F.2d 71, 72 (C.A 2, 1965). As expressed by Professor Archibald Cox, "The union is a separate entity (from its members) As' agent of the employees-principals, it is not liable for its principals' default and. the members are not its agents " Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harvard L. Rev. 274, 307 (1948). See also Local Union No. 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Astrove Plumbing and Heating Corp.), 152 NLRB 1093, 1105 (1965); Spelfogel, Wildcat Strikes and Minority Concerted Activity-Discipline, Damage Suits and Injunctions, 24 Labor Law Journal 592,609-611 (Sept 1973) UNITED MINE WORKERS OF AMERICA, DIST NO. 6- turn on whether the disclaimers were credible. In resolving such issues, the Board considers all the circumstances and may attach liability to a union for a work stoppage even absent direct evidence that the union had instigated, en- dorsed, or ratified the strike. At the February 9, 1973, meeting, following discussion of Naylor's alleged safety offenses, the Company announced that it would suspend Naylor. Although the suspension was in direct response to the complaints of the Union, there is no contention that it was unlawful. Presumably, General Coun- sel's position is that Naylor was suspended by the Company to assist in resolving a safety dispute under the terms of the applicable collective-bargaining agreement which, in perti- nent part, provides: When a dispute arises at the mine involving health or safety, an immediate, earnest and sincere effort shall be made to resolve the matter through the following steps: (1) By the mine management and the mine health and safety committee. It would be anomalous for General Counsel to contend that an action taken to resolve a dispute, particularly a dispute involving safety in so dangerous an occupation as coal min- ing, under the terms of a subsisting collective-bargaining agreement constitutes a violation of Section 8(b)(1)(B). The suspension was continued through February 16. On that day there was another meeting at which it was decided that Nay- lor's suspension should be continued until the questions relat- ing to his qualification as a section foreman should be decided by the Department of Mines of the State of West Virginia. At the next meeting on February 27, a somewhat different proposal was made to resolve the dispute. It was then decided that Superintendent John Stock and the mine safety commit- tee would together develop a program to retrain Naylor. For reasons that do not appear in the record, this latter agreement was rescinded several days later. The Company and the mine safety committee again agreed that the dispute concerning Naylor's qualifications to serve as a section foreman would be left to the determination of the West Virginia Department of Mines. Thus, as of March 27, 1973, a dispute was pending concerning Naylor's qualifications to serve as a section fore- man, a decision in the matter was to be made by the Depart- ment of Mines, and, until the dispute should be resolved, Naylor was suspended from his position as section foreman and was assigned to other duties. On March 27, the Depart- ment of Mines issued its decision which levied a fine against Naylor for a single fire boss violation but did not revoke his certification to act as section foreman. Apparently notice of this action, which is entitled "Proposed Order of Assess- ment," was transmitted only to the Company. In accordance with the understanding that it would not act unilaterally in the matter, the Company scheduled a meeting with the mine safety committee for 4 p.m. on March 28 to discuss the decision. The Company intended to restore Naylor to his former position as of April 3, but Vice President Richard Rouse, recognizing that he was dealing with a sensitive sub- ject, wanted to discuss the contemplated action with the mine safety committee before the employees learned about it. Rouse testified, "I thought I could tell the committee] and get the point across." Accordingly, Rouse directed Naylor 555 not to disclose his prospective reinstatement before Rouse had an opportunity to meet with the Local. Naylor disre- garded these instructions and as a result rumors began to circulate among the miners that Naylor was going to return to work as a section foreman. To the extent that such rumors came to the attention of representatives of the Local, they sought to quiet the apprehensions of the miners. Thus, Shreves credibly testified that he was working on the 4 p.m. to midnight shift on March 27, that at the end of the shift several men mentioned that they had heard that Naylor was returning to work the next week, and that he assured them that there was no truth to such rumors because there was an agreement with company management that management would discuss with the Local's mine safety committee the recommendations of the Department of Mines before taking any action. Local President Wayt similarly testified that dur- ing the day shift on March 28 he received complaints that Naylor was going to return to work and he assured the men that Naylor would not return as a section foreman before a meeting between management and the mine safety committee had taken place to discuss the subject. General Counsel's statement in his brief that "the work stoppage started with a simultaneous walkout of all em- ployees after Wayt was observed speaking to the assembled employees" is contrary to the evidence. John Stock testified that the men who reported for the 4 p.m. shift on March 28 did not change into their work clothes. He asked mine safety committeeman Richard McGill, whom he met in the hall- way, what the problem was and McGill replied that the men had heard that Naylor was coming back. Local President Richard Wayt testified that when he came out of the mine, upon the completion of the day shift about 1 or 2 minutes before 4 p.m., John Stock met him in the lamp rack room and asked him to talk to the men because they were not getting dressed. This testimony is uncontradicted. Wayt further testi- fied that he climbed onto a bench and asked the men what the matter was. He was told that they had heard that Naylor was returning to work on April 3. He told the men that there was an agreement with management that Naylor would not return to work in the mine as a section foreman before man- agement discussed the subject with the mine safety commit- tee. According to Wayt, "they said no, that [Naylor] had called the members of his crew and other foremen and told them that he was coming back Tuesday, and consequently, they turned around and went home."36 Contrary to General Counsel, I find on the basis of the credible and undisputed evidence that the work stoppage had effectively begun-before Wayt spoke to the men and before Wayt had come out of the mine at the end of his shift-when it became apparent that the men were not changing into work clothes. I further find no evidence that Respondents planned, called, or instigated the work stoppage. General Counsel states in his brief "there is no credible 36 General Counsel misstates the record when in his brief he argues, "Although Wayt maintains he was attempting to discourage the walkout, he should not be credited in this regard since he testified that he could not recall a single employee who was present (157) This was clearly a tactic to insure that no conflicting testimony would be offered." The testimony of Wayt was that he was unable to recall who among the employees spoke at that "rump" meeting, not that he could not recall any of the employees who were present Contrary to General Counsel, I am of the opinion that Wayt was a truthful and reliable witness. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence that Respondents made any attempts to induce em- ployees not to strike."" This statement is-refuted by the tes- timony of Shreves and Wayt that on their shifts they sought to allay apprehensions arising from the rumors that Naylor was going to return to work. The further testimony of Shreves and Wayt is that, whenever there is a work stoppage, a Local union meeting is called as soon as possible in order to find out what is going on and in order to get the mine back to work. Therefore, in accordance with these instructions, they and other Local officials promptly began to make arrangements for such meeting. These arrangements were begun before the encounter between Rouse and Pysell.38 For practical logisti- cal reasons the earliest time the meeting could be held was 2 p.m. the next day, March 29. So far as this record shows, such action was the most expeditious procedure available to the Local's officials to end an unauthorized work stoppage. Either later in the afternoon on March 28 or early the next morning there was a chance meeting between Company Vice President Rouse and District Board Member Pysell not at the McElroy mine but at a different mine. They discussed the strike at the McElroy mine and Pysell said that he understood that the -reason for the strike was that the miners had heard that Naylor was returning to work. Rouse testified that he said "[the Company] ought to . . . transfer Mr. Naylor to Ohio and [Pysell] said that would solve your problem but it wouldn't solve mine." This remark is alleged by General Counsel to constitute a threat in violation of Section 8(b)(1)(B). I disagree. In context, Pysell's response meant that Naylor's unsafe work practices would be as much a problem in another place as in the McElroy mine.39 There is no basis in this record for construing Pysell's remark, as General Counsel does, as a threat that there would be a work stoppage at any other location to which Naylor might be transferred. I shall, therefore, also recommend dismissal of this allegation of the complaint. In the same conversation Rouse informed Pysell that the Company would not return Naylor to the McElroy mine as a supervisor. Pysell re- 37 General Counsel asserts in his brief that at the membership meeting of March 29 Wayt "for the first time, then instructed Local 1638 members to return to work" but only after the Local achieved its objective of securing Naylor's removal as section foreman. The implication that otherwise Wayt would not have directed the members to return to work is speculative Furthermore, General Counsel recognizes that Wayt's testimony was to the effect that initially "he was attempting to discourage the walkout " There is no basis in the record for assuming that Wayt's attitude changed between 4 p.m on March 28 and the time of the Local's membership meeting the next day. The fact that the Local's mine safety committee and its president, Wayt, did not work during the 24-hour strike does not indicate that they supported or approved the strike The testimony is that, among other things, they were involved in making arrangements for the membership meeting. Also, they had to attend the meeting Their support of a back-to-work instruction would have been vital at the membership meeting had there been any opposition to such direction 38 General Counsel's assertion in his brief that the arrangements for the membership meeting were begun after the meeting between Pysell and Rouse is contrary to the uncontradicted testimony in the record 39 In their conversation, according to Pysell, he said to Rouse that if the latter transferred Naylor to the Ireland or Schumaker mine he would have a work stoppage on his hands. In the context of the discussion, the remark related only to the fact that the employment of Naylor within the territorial jurisdiction of the District would continue the problem he had created, and was not intended as a threat of union action This construction is confirmed by the testimony of Rouse, who in summarizing the conversation did not refer to the foregoing remark by Pysell and did not testify that Pysell had made a specific threat of strike sponded that the men probably would return to work. Rouse further testified that the conversation between him and Pysell was a mere exchange of views, that they were not discussing, and did not enter into, an agreement directed towards a resolution of the strike. Pysell attended the Local's meeting the next day and in- formed the membership that Naylor would not be employed at the McElroy mine. Local President Wayt told the assem- bled members that the work stoppage was unauthorized and directed the men to return to work, which they did. General Counsel argues that "the failure of Respondents to take any action against their members, or even to instruct members to return to work until after their objective was obtained, establishes Respondents' liability for the strike." There is support for neither General Counsel's factual nor his legal assertions. It is purely speculative that the strike ended on March 29 only because the Local's membership was in- formed that Naylor would not be restored as section foreman and that it otherwise would not have ended on that day. Furthermore, initially Local President Wayt attempted to discourage a walkout and the Local's officials promptly, even before the meeting between Pysell and Rouse, put in motion the machinery to end the work stoppage and get the mine back in operation. No evidence was adduced that any more expeditious means were available for issuing a return-to-work order than a membership meeting which the Local called and held at the earliest practical time. There is no precedent for the assertion that the Union's failure "to take any action against their members" who participated in the walkout alone makes the Union liable for the strike. I find on the record before me that General Counsel has not established that Respondents called, adopted, ratified, or prolonged the strike.40 The mere fact that Respondents were sympathetic 40 General Counsel lists the following nine factors to support his conten- tion that Respondents were responsible for the March 28 strike. 1 "The strike began immediately after Wayt's speech to employees " The evidence is that when Wayt spoke to the employees about 4 p in on March 28 he attempted to discourage the walkout. 2. "It was simultaneously supported by all Union members." This factor suggests that the walkout was instigated by some person or organization. Although this factor may have an interpretative value in assessing the mean- ing of other ambiguous evidence, by itself it does not establish union respon- sibility for the strike 3 It was "supported by all Local officers." The evidence is to the contrary. To the extent that there is testimony in the record, it shows that the officials of the Local promptly, upon the inception of the work stoppage, began to take action directed towards bringing the walkout to a quick end. 4. It "was for an objective which had been earlier established by the Union " There is no evidence that the opposition to the continued employ- ment of Naylor as a section foreman had been "earlier established" by Respondents rather than by the miners themselves On the other hand, Respondents sought to correct the alleged safety hazard represented by the employment of Naylor as section foreman That Respondents also wished Naylor removed from that position does not make Respondents liable for the unauthorized walkout 5 It "was not disavowed by Respondents " The evidence is to the con- trary Before the walkout began, both Shreves and Wayt discouraged such action and, after the walkout began, the Local's officials promptly took steps to bring the walkout to an end 6. It "was adopted by Pysell when he informed Rouse other strikes would occur if Naylor was transferred to another mine." I have found that the evidence does not support this assertion. 7 "There was a simultaneous return to work " The work stoppage came to an end when at the membership meeting Local President Wayt advised the members that the walkout was unauthorized and directed them to return to work. The fact that the miners responded to the Local's direction to UNITED MINE WORKERS OF AMERICA, DIST NO. 6 -with the objectives of the strike is not enough to attach re- sponsibility . Accordingly, I shall recommend that the com- plaint be dismissed. Upon the basis of the above findings of fact, and the entire record of the case, I make the following: retui n to work is not evidence that the Local initiated or ratified the work stop page 8. "Respondents made no effort to induce employees to return to work until their objectives were obtained ." First, at the very outset Wayt at- tempted to discourage the work stoppage . Second, the Local called a mem- bership meeting in order to bring the work stoppage to an end General Counsel does not suggest what other action Respondents could have taken or should have taken in the circumstances. CONCLUSION OF LAW 557 Respondents have not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from publication.] 9. "Respondents continued to function as effective Unions since members did attend the Union meeting as Respondents requested " General Counsel does not explain, and I do not understand, how this factor points to Re- spondents' responsibility for the strike, other than under the mass action theory discussed above.