Surface Industries, Inc.

SURFACE INDUSTRIES, INC 155 Surface Industries, Inc and United Mine Workers of America United Mine Workers of America and Surface Indus- tries, Inc. Cases 16-CA-6006, 16-CA-6180, and 16-CB-1026 May 27, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On January 15, 1976, Administrative Law Judge Anne F Schlezinger issued the attached Decision in this proceeding Thereafter, Respondent Company filed exceptions and a supporting brief and Respon- dent Union filed a brief in support of the Adminis- trative Law Judge's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel 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 her recommended Order, as modified below 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Surface Industries, Inc, Dow, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order as so modified 1 Add the following as paragraph 2(b) and relet- ter the subsequent paragraphs accordingly "(b) Withdraw and withhold all recognition from, and completely disestablish, the Employee Commit- tee and any successor thereto, as the representative of our employees for the purposes of collective bar- gaining " 2 Substitute the attached notice for that of the Administrative Law Judge IT IS FURTHER ORDERED that the complaint against Respondent United Mine Workers of America, Washington, D C, be, and it hereby is, dismissed in its entirety APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT initiate, assist, or dominate and interfere with the formation and administration of the Employee Committee or any other labor organization WE WILL NOT interrogate employees about their union activities, threaten employees with reprisals mciLdmg discharge or a shutdown of operations because of such activities, engage in surveillance of such activities, promise or grant employment benefits to induce employees to abandon such activities, or in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, except that nothing contained herein shall be construed as requiring us to revoke any wage increases or other employee benefits previously granted WE WILL NOT refuse to bargain collectively with United Mine Workers of America, make unilateral changes in wages, hours, or working conditions, or negotiate as to terms or condi- tions of employment with the Employee Com- mittee, or any other company-dominated labor organization WE WILL, upon request, bargain collectively with the above-named union as the exclusive representative of our employees in the appropri- ate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and embody in a signed agreement any understanding reached The bargaining unit i The Respondent excepts to certain credibility findings made by the Ad- ministrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing her findings As the record and briefs adequately set forth the issues and the positions of the parties, we hereby deny Respondent Employer's motion for oral argu ment 2 In view of the Administrative Law Judge's finding of domination of the Employee Committee with which we agree we shall apply our customary disestablishment Order herein is All the production and maintenance employ- ees at our mine near Dow, Oklahoma, exclud- ing all office clerical employees, professional employees, guards, and supervisors as defined in the Act WE WILL withdraw and withhold all recogni- tion from, and completely disestablish, the Em- 224 NLRB No 35 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee Committee and any successor thereto, as the representative of our employees for the pur- poses of collective bargaining SURFACE INDUSTRIES, INC DECISION STATEMENT OF THE CASE ANNE F SCHLEZINGER, Administrative Law Judge Upon charges filed by Lone Star Steel Company, herein called Lone Star, on November 14, 1974, and April 8, 1975,1 in Case 16-CB-924, and on March 5 and 14 in Case 16-CC- 517, and by Surface Industries, Inc, herein called Surface Industries, on March 12 in Case 16-CC-518, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16 (Fort Worth, Texas), is- sued an order consolidating cases, consolidated complaint, and notice of hearing on April 10, alleging the commission of certain unfair labor practices by United Mine Workers of America, herein called the Union The Union, in its answer duly filed, denies that it engaged in the unfair labor practices alleged against it Upon charges and amended charges filed by the Union on April 11 and June 25 in Case 16-CA-6006, alleging certain unfair labor practices by Surface Industries, the aforesaid Regional Director issued a complaint and order consolidating cases and notice of hearing on July 16 In an answer duly filed and amended,2 Surface Industries denies that it engaged in the unfair labor practices alleged against it At the opening of the hearing in this proceeding, upon a motion of General Counsel, a complaint that had been is- sued in Case 16-CA-6180 was consolidated with the cases previously consolidated On September 29, when the hear- ing resumed after an adjournment, General Counsel moved to consolidate with the other cases a complaint that was issued in Case 16-CB-1026 on September 29, on the basis of charges filed by Surface Industries on September 5 General Counsel also at this time moved to sever some of the consolidated cases to facilitate hearing and decision of the issues involved Motions to sever had previously been made and denied, but the motion was granted at this time, over the objection of counsel for the Union but with the concurrence of all other counsel Also at the request of General Counsel and with the agreement of other counsel, on the basis of interrelationship of the issues involved, Cases 16-CA-6006, 16-CA-6180, and 16-CB-1026 were consolidated for hearing in the instant proceeding, while Cases 16-CB-924, 16-CC-518, and 16-CC-519 were sev- ered to be litigated in a separate proceeding 3 Pursuant to notice duly served, a hearing was held be- fore me at McAlester, Oklahoma, on September 8, 9, 10, 11, 29, and 30, and October 1, 2, 3, 15, 16, and 17 All the parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine wit- nesses, and to introduce relevant evidence At the close of the hearing, the parties waived presentation of closing ar- gument Subsequent to the hearing, General Counsel, Sur- face Industries, and the Union filed briefs on or about De- cember 8, which have been fully considered 4 Upon the entire record in this proceeding and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF SURFACE INDUSTRIES Surface Industries, Inc, which is, and has been at all times material herein, a Texas corporation maintaining its principal office in Dallas, Texas, operates a strip mine near Dow, Oklahoma, where it is engaged in the mining and processing of coal During the past calendar year, which period is representative of all times material herein, Surface Industries, in the course and conduct of its business opera- tions, purchased and received at its Dow, Oklahoma, mine, materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of Oklahoma I find, as the consolidated complaint alleges, and Surface Industries admits, that Surface Industries is, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED I find, as the consolidated complaint alleges and the an- swers admit, that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act The consolidated complaint also alleges that the Surface Industries, Inc, Dow, Oklahoma, Mine Employee Com- mittee, herein called the Employee Committee, beginning on or about February 18, and continuing until March 19, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act In its an- swer, Surface Industries states that it is without sufficient knowledge either to admit or deny these allegations I find, for the reasons set forth below, that the Employee Commit- tee was, during the period in question, a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Issues in the CA Cases 1 All dates hereinafter refer to 1975 unless otherwise indicated 2 During the hearing herein General Counsel filed and served on the parties a document embodying numerous amendments made from time to time to the allegations in the CA cases Surface Industries thereafter filed an amended answer 3 All counsel agreed that the testimony already taken in the CC cases would be incorporated in the record of the other proceeding Counsel Counts, counsel for the General Counsel and Counsel Mattson counsel for The consolidated complaint, as amended at various times during the hearing, alleges that Surface Industries had engaged in conduct violative of Section 8(a)(1), (2), Lone Star took no further part in this proceeding a General Counsel although it presented the evidence relating to the alle- gations in Case 16-CB-1026, did not file a brief SURFACE INDUSTRIES, INC 157 and (5) of the Act The complaint also alleges that Oliver Murray, president, referred to herein as Murray, Van Hoose, night foreman, Patton, supervisor, Riley, supervi- sor, Gage, supervisor, and Butler, crusher foreman, have been at all times material herein supervisors and agents of Surface Industries within the meaning of the Act I The an- swer of Surface Industries, as amended, admits these alle- gations except with regard to Murray and Riley Murray testified that he and his two brothers have a partnership in Dallas called Murray Enterprises, which is a pipeline construction firm, that they also operate a firm called Murray Construction, Inc, of which he is executive vice president, and another called Kan-Tex Construction Corp , that Surface Industries, whose main office is in Dal- las, is owned by his brothers, that one of his brothers is the president, and that he holds no permanent position with that firm, but acted as the spokesman and agent of one of his brothers in dealing with the employees of Surface In- dustries at the mine 6 Murray testified further that prelimi- nary operations began at the mine in October 1974, the first equipment was delivered in November 1974, the first coal was produced in December 1974, and, as the Company's financial structure was "terrible" during its ear- ly period, "We had to produce coal to have cash to sur- vive " Murray also testified that Patton, an admitted super- visor, informed him on Sunday, February 16, that the project was rampant with rumor including a rumor that "the men were thinking about signing cards", that Vmzet- ta, the bookkeeper, told him the same thing, 7 that he took charge at the request of his brother James of a meeting with the mine employees on February 18, and continued thereafter in charge of the activities of Surface Industries here in issue, that he learned of the picketing that began on March 11, but heard gossip about the possiblity of picket- ing before that, that he was at the mine site on or about March 10 when he was informed that Patton, who "lived on the mine site in a trailer home that we had furnished," wanted to quit as project superintendent, and that Patton came back to work at his request in April but left again in May, that at the time of the hearing he was the project manager at the mine and had been since "Some time in- in March, April, somewhere in that neighborhood", that he was involved before that in employee relations and admin- istrative matters, but he did not state how long before, that after the picketing began "I told all of the employees not to be trying to cross the line, to remain at home and I would get proper counsel, and I would tell them how to act", and that the mine reopening was announced on March 20 when "I called out to the mine office and asked someone to go up and tell the men Up on the picket line where our employees were " Murray and his brothers have offices in Dallas, and the home office of Surface Industries is in Dallas The Union's S It was stipulated at the hearing that Gage was project superintendent until January 4, that he was succeeded by Patton until March 10 that Van Hoose then took over, and that Patton returned to that post on April 15 with Van Hoose as assistant superintendent Murray testified that Patton left again in May and has been back since then only to visit and that Southern was the project superintendent at the time of the hearing 6 Neither of Murray s brothers was called to testify Neither Patton nor Vinzetta was called to testify demand for recognition, sent to Murray Construction Company in Dallas, was replied to the next day by Barnes, counsel for Surface Industries I find, on the basis of the interrelationship of the Murray companies and the leading management role Murray admittedly played in the events here in issue, that Murray has been, at all times material herein, a supervisor and agent of Surface Industries Riley was hired at Surface Industries on or about Febru- ary 11, and quit his job there in about June He testified, as a witness for General Counsel, that he became a mine fore- man in late February Murray testified that there is a fore- man only at night, that Riley's job as foreman was the operation of the night shift, and that Riley directed the work force at night as to the work and maintenance opera- tions I find, on the entire record, that Riley was, at all times material herein, a supervisor and agent of Surface Industries 1 The 8(a)(1) issues The consolidated complaint as amended alleges that Surface Industries, in violation of Section 8(a)(1) of the Act, interrogated employees about their union activities, threatened employees with closing of the mine operation because of the union organizing activities, and with dis- charge of employees who failed to cross a picket line if one were established at the mine, and by brandishing a firearm at strikers, engaged in surveillance of the union activities of the employees by driving by and observing those in at- tendance at union meetings at the Carpenters Hall, prom- ised employees a wage increase on February 18 and grant- ed it on February 28 to induce employees to abandon their union activities, informed employees it was withholding a bonus from them because of their union activities, and on March 7 promised continuation of the recently granted wage increase, grant of requested shift changes, and enter- tainment consisting of beer parties and barbeques if em- ployees would cross a picket line and continue working for the Respondent a Interrogation, threats, and promises and grants of benefits Dennis Fink testified credibly and without contradic- tion, as a witness for General Counsel, that on or about December 24, 1974, Gage, then the project superintendent, asked him at the mine office if he had seen any union acitivites on the job, that Fink replied he had not, and that Gage then said, "Well, the way the Company stood before they would go Union they'd close the gates and go home " 8 Fink also testified, credibly and without contra- diction, that on or about February 5 Patton, then project superintendent, picked him up and, on the way to the pit, asked "if the men were thinking pretty strongly about the Union," that Fink answered he did not know, and that Patton "said that the way the Company had talked to him they would close the gates and go home before they would go Union " s Gage who was superintendent at the mine until January 4 was not called to testify 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nail testified, as a witness for General Counsel, that he was asked to come to the mine on Sunday, February 16, to check some equipment, that Riley drove up to where he was working that day, said he had heard talk about the Union and a guard had said he saw cards signed, and asked what Nail knew about it and if Nail would give him a card, that Nail asked if Riley was union or nonunion, and, when Riley answered nonunion, said he had no com- ment then, that he suggested polling the men, and Riley said he would talk to Patton about it, that Riley came back later and said Patton thought it was a great idea and would pay the men to come in and discuss whether they wanted the Union, but had to check with Dallas on paying them, that Van Hoose, who was then the night foreman, joined them and said he did not care if there was a union or not as long as the job got done, that Patton then came, told the men to stop work and go home, and said he was directed, when he told Dallas about the Union, to do nothing fur- ther, and that when Nail left Vinzetta, Riley, and Patton locked the gates Nail also testified that either Van Hoose or Gehlken 9 called him on February 17 about a meeting and said that Dallas wanted everyone to attend, that it would be like coming to work, and that "if we could get this problem ironed out about the Union or whatever it was, then we could just go on to work from there " I found Nail a candid and credible witness, and credit his testimo- ny, which was for the most part undisputed Clyde Hardin testified that he was one of the first em- ployees hired at the mine in October 1974, that on March 6 Van Hoose drove up to where he, Nail, and James were working, and said that if a picket line were put up any men who failed to cross it would be immediately "fired", that he told Hardin to relay that message as Hardin moved over the entire strip in the course of his work as a mechanic- welder, and that Hardin replied that "it looked like I had had it then because I wasn't crossing no picket line," but he relayed the message to all the other operators on the shift Van Hoose, who left his job at the mine about May 10, and was working at the time of the hearing with a construction firm in Texas, testified as a witness for General Counsel, but did not refute this testimony of Hardin I found Hardin a believable witness, and credit his testimony Mike Hardin, the son of Clyde Hardin, who was em- ployed at the mine since on or about November 1, 1974, worked as a mechanic-welder on the graveyard shift He testified, as a witness for General Counsel, that Riley, who since on or about February 25 was his supervisor during part of the shift, at about 2 am on March 7, while they were at the pit, "told me that if we didn't cross the picket line, we'd be immediately fired And I told if that is the way it was, he'd better find himself another boy I wasn't going to quit, but if I was going to be fired, he'd better start looking " Holloway, who was present at the time, testified also, as a witness for General Counsel, that Riley said the word from Dallas was that anyone who did not cross the line would be automatically fired Mike Hardin and Hollo- way testified further that, about 6 a in on this same date, Van Hoose told them at the mine office "that if we didn't s Gehlken, identified by Murray as our Office Manager at the mine site was not called to testify cross the picket line, we'd be immediately terminated " Holloway had to leave at this point to turn off a hose, but Hardin testified that, during a further conversation, "I told him [Van Hoose] about the same thing I told Riley And he said that if the-he said that the shift change that Dub [Holloway] and I had previously asked for would be grant- ed, if we went ahead and crossed the picket line and con- tinued working And then he said the raise Murray had previously granted us we could keep that And he said that-that-yeah-that if we-if everything went favor- ably that we would-that if we didn't go Union then we would have beer parties-the Company would give the men beer parties and barbeques and we'd have quotas And if we made these quotas then the men would get beer parties and barbeques and things like this But if we went Union we wouldn't have none of that " Hardin also testi- fied that the raise referred to on March 7 was one Murray gave at a meeting called by him which is discussed below, that he went from $5 80 to $6 an hour, and that there had been no beer parties or barbeques previously Riley and Van Hoose did not refute this testimony Holloway's pretrial affidavit was placed in evidence by counsel for Surface Industries Holloway explained, re- garding a difference in his testimony and his affidavit about a remark Riley made on March 14, that he had con- sidered the matter further since the affidavit was prepared, and was convinced that his recollection as to this matter was better at the time of the hearing During Mike Hardin's examination on September 9, counsel for Surface Industries reported that he had been advised that two men in the audience had been signaling the witness, and requested me to warn the audience that such conduct would not be tolerated This was done, but with the comment that no such conduct had been observed by me, nor by the several attorneys and others at counsel tables On the next day, after counsel for General Counsel indicated he had virtually completed presentation of his evidence, counsel for Surface Industries stated that he would move "for a mistrial as a result of the activities that took place-or alleged activities that took place during the testimony of Mike Hardin yesterday or in the alternative to strike from the record the entire testimony of Mr Hardin " As he also indicated he would present a witness regarding this matter, ruling was postponed At the October 2 ses- sion, Sharp, a guard employed by Stanley Smith Security, which furnished guards to the mine not including Sharp, testified that sometime in the morning of the second day of the hearing he was standing in the corridor looking into the courtroom through the glass in the doors, that counsel for Surface Industries was then questioning Mike Hardin and using the blackboard, that he saw someone, later identified as Holloway, giving hand signals while Hardin watched closely and answered only after getting a signal that seemed to indicate a yes or no answer by the direction in which Holloway turned his hand, that he could not hear what was said but could tell when there was a yes or no answer by the motion of Hardin's head, that this went on for 5-10 minutes, that the hand movements were clearly visible to the Administrative Law Judge and to counsel, that he was at the courthouse waiting for Dollar, another guard who was delivering some documents to Surface In- SURFACE INDUSTRIES, INC 159 dustries, and told Dollar "of my beliefs", that he asked Dollar to have people check to see if he was correct, and Dollar later said he reported it, and that he and Dollar watched thereafter but saw no further signaling Hardin and Holloway were recalled as witnesses by the Union Hardin testified that he observed no hand signals, and during his examination looked only at the one ques- tioning him, and Holloway denied that he made any hand signals to any witness I found Sharp a completely unconvincing witness Fur- thermore, as noted above, the alleged signaling visible to Sharp standing outside the courtroom was not observed by me, by counsel, or by others at counsel tables On the basis of the entire record, I hereby affirm the rulings made at the hearing denying the motions to declare a mistrial or to strike Hardin's testimony Futhermore, I found Mike Har- din and Holloway forthright and convincing witnesses, much of whose testimony was unrefuted and was corrobo- rated by other witnesses whom I found credible I therefore credit the testimony of Mike Hardin and Holloway Van Hoose, who testified as a witness for General Coun- sel, was recalled as a witness for Surface Industries, and testified that he told employees the financial situation at the mine was such that any long stoppage could cost every man his job as the mine would go out of business, that Murray said if the mine started making money he would have beer busts and barbeques, and that there was no men- tion of the Union in these remarks The consolidated complaint alleges that the Respondent, by Riley, a supervisor, on or about March 21 threatened employees with physical violence by brandishing a firearm in the presence of pickets at the entrance to the mine This incident is discussed in detail below as one of the allega- tions of union violence I find, on the record as a whole, that the evioence does not establish that Riley threatened employees by brandishing a firearm in violation of Section 8(a)(1) of the Act On the basis of credited and in large part unrefuted testi- mony, and the entire record, I find that Surface Industries interrogated employees about union activities, threatened employees with loss of jobs, through discharge or a shut- down of the mine operation, if they engaged in union activ- ities or refused to cross a picket line if one were set up, and promised and granted benefits, including continuation of a recently granted wage increase, grant of requested shift changes, and beer parties and barbeques, if employees would refrain from union activities and would cross a pick- et line if one were established, and thereby interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act 10 b Surveillance Dennis Fink testified that union meetings were held at 10 N L R B v Exchange Parts Company 375 U S 405 (1964) N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969), Donovan v N L R B 520 F 2d 1316 (C A 2 1975), D Youville Manor v NLRB 526 F 2d 3 (C A l 1975) Mosher Steel Company, 220 NLRB 336 (1975) Ann Lee Sportswear Inc 220 NLRB 982 (1975) the Carpenters Hall beginning in early January, that he saw Butler, an admitted supervisor, drive past the meeting place on the evening of February 5, slow down to about 15 miles an hour, and look at the men who were there Tatum testified that he attended union meetings between March 1 and 15, and saw Butler before a meeting go by the meeting hall slowly, and then go by again in the other direction, looking at the men near the hall Mosley testified that on May 27 he saw Butler standing at a drive-up telephone about 300 yards from the meeting hall as the men were leaving a meeting James Fink testified that he saw Butler, on August 19, slow down to about 15 miles an hour as he drove by the meeting hall and look at the men near the hall Butler, called as a witness by Surface Industries, testified that he was employed by Surface Industries from Novem- ber 4, 1974, through September 30, 1975, and that his resi- dence at that time was about 14 miles north of McAlester Then, asked whether during his employment with Surface Industries "you would follow your normal route of travel to and from work on a route that takes you past the Car- penters' Hall" Butler answered "Yes, sir " He was not in- terrogated as to whether on occasion he slowed down as he drove past and observed the men near the hall, or drove past the hall in one direction and then in the other while observing the men, or stood at a nearby drive-up telephone and observed the men leaving a meeting I credit the testimony of Tatum, Mosley, and Dennis and James Fink, and find that, even if Butler's normal route home took him past the Carpenters Hall, his conduct, on various dates from February to August, in driving by slowly, driving back and forth, and standing at a nearby drive-up telephone, while observing the men near the hall, constituted surveillance of the union activities of the em- ployees in violation of Section 8(a)(1) of the Act c The February 18 meeting Dennis Fink, who worked at the mine on the day shift, testified, as a witness for General Counsel, that Patton, the superintendent at the time, called him at home on Febru- ary 17, told him there would be a meeting at 10 the next morning at a VFW hall in Hartshorne, that all employees should attend, and that they would receive 2 hours' showup pay for this Other employees were given this same message by their supervisors Fink, who went to the meeting, testified that manage- ment was represented by Murray and his brother James, Conley, Patton, Van Hoose, and Butler, and that about five security guards were present He also testified that the meeting was attended by all of the approximately 36 em- ployees, who had to show passes to the guards at the door and were given name stickers to wear Fink testified that Murray, who was admittedly the management spokesman at this meeting, "told the employees of Surface that he thought they were making a mistake by bringing the Union or a third party in He said it would just cause the Compa- ny to have to hire lawyers to deal with the Union, and it would be money out of our pockets paying the Union dues for our lawyers to bargain with them, and we could work it out between management and men He said that the Com- 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany had been operating in the red and that he felt like that we were making a mistake by calling in a third party and before he would do that he would shut the gates and go home He felt like we ought to give him three to six months, a trial period, to see if they could make money in the mining industry " Fink also testified, as did Clyde Har- din, that Murray promised, if operations were satisfactory during the trial period, that Surface Industries "could get in touch with Lone Star Steel for wage increases," as the agreement between them was "negotiable on wages and things of this nature " Many other employees who were at the February 18 meeting I' testified credibly as to remarks made by Murray that he would close down the mine operation and go back to Texas before a third party or the Union came in Nail testified that he asked Murray during the meeting how the Union would hurt the mine as present wages and benefits were close to what the Union would seek, and that Murray replied that, before he would let an outsider tell him how to run his business, he would "lock the gates and pack up and go home " Both Clyde and Mike Hardin testified that Riley said during this meeting that he would kill "any Union son of a bitch" who interfered with his going to work or doing his work Riley, asked on cross-examination by the Union if he made such a statement, answered that "They was dis- cussing about the right to work and the right not to work and I said, `I would hate to know that if I drove up to a line and a man told me I couldn't go to work' I don't remember calling anyone any union sons-of-bitches " Asked if he said anything about killing or hurting anyone, he denied it, but on further questioning admitted that "I might have said something to that effect Like I said there was a lot of stuff discussed We were discussing the fact, could you go to work or could you not9 I remember saying the statement that I didn't think anybody had the right to tell you whether you could work or couldn't work I think I made the statement, `If I went to work somebody might get hurt They might leave me laying out there, but some- body would get hurt "' Riley also testified that he was made mine foreman about a week after this meeting Murray testified that he and his brother James were in the mine area for more than 24 hours prior to the February 18 meeting, that they had been informed that "there was a great deal of discontent among the men We tried to ascertain what this discontent was", that he had been in- formed by Patton, the superintendent, and Vinzetta, the bookkeeper, that the project was rampant with rumors in- cluding one that the men were thinking about signing cards, that Riley, to whom he talked for the first time on February 17, called him about Nail's suggestion to hold an employee meeting to discuss matters such as personnel pol- icies, but did not tell him on February 16 that some em- ployees were signing cards, that between February 16 and March 1 "I think someone said they thought that there had been two or three cards signed or something was happen- ing and the men were awfully confused", and that he could not recall it but he might have been so informed prior to February 18 Murray maintained at various points during his testimony that he did not know of union activity among the employees as of February 18 "of my own knowledge", that his remarks at the meeting about third parties could have referred, for example, to railcars being unavailable, that "I'm sure it did have some reference to labor unions I don't know Everybody was talking about spooks in the woodpile It was just gossip", and, finally, that he heard rumors about union cards being signed by some of the mine employees possibly on February 16 12 In any event, as a result of these reports from the mine, Murray and his brother James called the February 18 meeting Murray testified that, as company spokesman, he told the employees at this meeting of the mine's serious finan- cial problems, and pointed out the advantages to the em- ployees of their present jobs, which paid more than they previously earned, and of the insurance programs and other benefits, that he assured the men that, if they were upset, "we certainly intended to satisfy them within the economic parameters we had to operate with", and that he said "we'd have to go back to Texas" or to "shut the gates and go home" in some circumstances such as if a third party were to "cause a work stoppage-any work stop- page " I find, on the basis of testimony by credited witnesses and the admissions made by Murray, that Surface Indus- tries, by Murray's remarks at the February 18 meeting, promised benefits to the employees if they refrained from union activities, and threatened to shut down the mine op- eration if the employees designated a union representative or took part in a strike if one were called, and thereby further violated Section 8(a)(1) of the Act 2 The 8(a)(2) issues The Employee Committee The consolidated complaint as amended alleges that Surface Industries paid employees for attending a meeting on or about February 18 for the purpose of forming the Employee Committee to act as the bargaining representa- tive of the employees in matters pertaining to wages, hours, and other terms and conditions of employment, partici- pated in meetings at which members of the Employee Committee were selected, met and bargained with the Em- ployee Committee, and thereby, from on or about Febru- ary 18 until on or about March 19, initiated, formed, assist- ed, dominated and interfered with the formation and administration of the Employee Committee, in violation of Section 8(a)(2) and (1) of the Act Several employees 13 testified credibly that at the Febru- ary 18 meeting Murray suggested the formation of a com- mittee of employees with which he could negotiate about wages and working conditions instead of discussing them with the entire personnel complement, and that he offered to have management leave the room while such a commit- tee was elected After some discussion of the size of the committee, they agreed on four men, two from the day 12 The Surface Industries brief states that management learned on Febru- 11 They included Charles James Nail, Jenkins, Foster McMath Grivett ary 16 that a few employees had signed union cards Tatum Young, Richards Holloway and Clyde and Mike Hardin 13 They included Foster, Richards, Dennis Fink, and Clyde Hardin SURFACE INDUSTRIES, INC 161 shift and two from the night shift Clyde Hardin testified that Riley also urged election of an employee committee to negotiate with management The management representa- tives, Riley, and the security guards left the room The em- ployees elected Charles James and Clyde Hardin from the night shift, and Glenn and Dennis Fink from the day shift, as the Employee Committee The meeting adjourned for the men to report for work at 1 p in, after Murray ar- ranged to meet with the Employee Committee on Friday, February 21 Fink testified that Patton asked him the next day, Febru- ary 19, if the Employee Committee had prepared any pro- posals, but he replied that it had not had time to meet, that Patton said he got some figures on the telephone from the corporate offices in Dallas, and asked Fink about them, that he said he had to talk to the employees before giving an answer and did not know when they could meet, and that when Patton then asked if the Committee members might come up with something if given an hour with pay for dinner instead of the usual unpaid half hour, he an- swered that they would try Fink testified further that he usually ate dinner at the pit, where there were about 12 employees, but that at noon four day shift employees from the crusher about 4 miles away and some mechanics "from up around the office building" came to the meeting, the crusher employees explaining they had been told by Patton to attend Fink testified that he passed around the wage figures Patton had given him, that the majority of those present wanted more money and added benefits, and that all who attended were paid for the 1-1/4 hours of the meet- ing As Fink was preparing to go back to work, Patton drove up, asked if the group had come up with a proposal to present to management, and Fink said it had As Murray suggested on February 18, there was a meet- ing at 10 a in on Friday, February 21, at the mine office Fink and Hardin, the night shift representatives, were there for the Employee Committee, and Oliver and James Mur- ray, Conley, Patton, and a man Fink did not know were there for management Fink testified that, when he gave Murray the Committee's proposal on wages and benefits, Murray asked, "Why don't you buy 51% of the Company, if you want to run it?" Fink also testified that Murray then said he would have to take the proposal back to the home office in Dallas and study it to see what could be done on the proposal, and suggested another meeting to be held at a Holiday Inn the following Friday, February 28 Fink testified that Barnes, counsel for Surface Indus- tries, was present at the February 28 meeting, as well as all four members of the Employee Committee and, in fact, the entire work force Fink also testified that Murray gave the Employee Committee a written proposal on wage rates higher than the existing rates but lower than the Employee Committee had proposed, and explained his offer, that the Employee Committee told Murray the matter had to be discussed, that Murray set a meeting for the next Friday, March 7, and that, after the February 28 meeting, employ- ees were paid at new increased rates According to the testimony of Fink, at the March 7 meeting, which was held at the mine office, with Glenn and Fink representing the Employee Committee, Murray stated that they could not discuss the proposal as he had been notified that morning that the Union had petitioned for an election, and then said to his brother James "that he guessed they would have to cancel the beer bust that they had planned" Fink also testified that, as they were leaving the meeting, Murray called him aside and "said that they had been thinking about tacking a bonus onto the wages at the mine and it looked like all that had gone down the drain And he said that he figured that it would come to an election between the UMWA and the management out there, and he planned on winning the election no mat- ter what And he also told me that if this ever come up where this was in trial or court that he would deny making any statement that he made about the wages or trying to win the election " Murray testified that he suggested at the February 18 meeting the formation of a smaller group with which he could discuss matters including wages, hours, and working conditions, so that it would not be necessary to shut down the mine to hold such discussions with all the employees He also testified that the employees decided on a commit- tee of four men, that he did not recall who suggested that number, that he did not but agreed with it, that he did point out that a larger group would be disproportionate, and, finally, that he may have suggested a committee of four but did not remember Murray also testified that he arranged on February 18 to meet with the Employee Committee on February 21, that he and his brother James flew in from Dallas for that meet- ing, that when Fink handed him the list of demands he asked if Fink wanted to buy stock, and then that he said "we'd have to take his request back to Dallas and review them and see if they'd fit in with the economic projections we had set up and give them an answer" Murray also arranged to hold the next meeting on February 28 Murray testified that in the interim he reviewed the Committee's demands with his brother James and with Barnes, his counsel, that Barnes advised that, if there was an organizing effort in progress, "we could not offer any increased incentives to any of the men or changes", that therefore at the February 28 meeting "we in fact turned down every demand the committee had made on us", but that one category of employees that had been earning less than another through a management error was given a wage increase 14 Murray also testified, on cross-examina- tion by the Union, that he asked the men at this meeting if the Employee Committee still represented them, and was assured it did, and that he asked this although "We had not been given a formal notice that anyone else did represent them " Barnes interposed at this point that, as the parties had previously stipulated, a letter and a mailgram had been sent by the Union to Murray Construction Company on February 24, claiming to represent a majority of the pro- duction and maintenance employees at the mine, and a reply mailgram was sent by Barnes on February 25 refer- ring the Union to Board representation procedures Murray testified that, at the close of the February 28 meeting, another meeting was set for March 7 for the Com- 14 On June 17 Murray issued a notice that a number of named employees had completed their 90 day probationary period and received wage increas- es Per our company policy as outlined on February 28 11 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i mittee to respond to his proposals, that he and his brother injunction and a restraining order, many of the striking James flew in for that meeting, but Barnes had notified employees-Murray testified about 60 percent of them- him, prior to the meeting, that, as an election petition had were still out at the time of the hearing been filed, "I couldn't talk to anybody from there on out", and that he so notified the Employee Committee Murray also testified that he walked with Fink from the mine office to Fink's truck and that "I don't remember anything being said," but he denied that he made the remark about a bo- nus attributed to him by Fink I found Murray an evasive witness and his testimony contains many inherent inconsis- tencies and self-contradictions, including admissions of conduct made very reluctantly after repeated denials there- of I credit Fink's testimony that Murray made the remark about withholding a bonus that had been under consider- ation I find, accordingly, on the basis of the credited testimo- ny, Murray's admissions, and the record as a whole, that the Respondent initiated, formed, assisted, dominated, and interfered with the formation and administration of the Employee Committee, in violation of Section 8(a)(2) and (1) of the Act I also find that Murray, after the March 7 meeting with the Employee Committee, told Fink, a member of the Committee, that Surface Industries would withhold a bo- nus it had been considering because of the employees' ac- tivities on behalf of the Union The Surface Industries brief argues that this statement should not be found violative of the Act as it related to Murray's inability to make wage changes in view of the pending election petition and was made to only one employee I find, in all the circumstances herein, that Surface Industries, by this statement, made to a member of the Employee Committee, threatened to with- hold benefits that had been under consideration, and thereby further violated Section 8(a)(1) of the Act 15 I also find that Murray notified the Employee Commit- tee he would grant a wage increase to a certain category of employees The Surface Industries brief urges that this ac- tion was not violative of the Act as it was taken to correct a wage inequity and not to influence the employees' free- dom of choice I find, in all the relevant circumstances, that Surface Industries, by offering this wage increase in the course of discussions with the Employee Committee, and after the Union's demand for recognition had been received and rejected, further violated Section 8(a)(1) of the Act 3 The strike Local 9313 of the Union, which represented employees at a mine of Lone Star Steel in McCurtain, Oklahoma, called a strike on March 11, and sent some of its members to picket at the Surface Industries mine beginning on March 11 Most of the Surface Industries employees did not cross the picket line On or about March 18, Surface Industries employees took over the picketing of the mine Some McCurtain men came to assist them at times, and union pensioners also participated in the picketing Al- though picketing ceased as a result of the issuance of an 15 See Donovan v N L R B, 520 F 2d 1316 (C A 2, 1975), National Utility Products Company, 220 NLRB 64 (1975) 4 The mine reopening Murray testified that on March 20 he announced the reopening of the mine on March 21, that he called Riley and Gehlken at the mine, and that he told them to notify the employees at the picket line of this decision, to have nothing to do with the McCurtain men there, but to inform the Surface Industries employees he would be at the Holi- day Inn "to answer any questions and advise them how we were going to run and operate the mine from that time forward " Holloway testified that on March 19 Riley stopped at the picket area and told several of the pickets only that Murray was at the Holiday Inn and wanted to talk to the Employee Committee but any others could come also, and then drove back into the mine Holloway and Tatum attended the Holiday Inn meeting Holloway testified that when they arrived Henderson, Parnell, and Smith were already there and Sitter came in a little later, and that Barnes-whose identity Holloway learned at the instant hearing-and another man Holloway did not know were with Murray According to Holloway, Murray said that the men had been sold out as the McCurtain people were pulling out, that those who wished to return could fill out new applications, and that he was going to start hiring new employees, Holloway asked whether, if the picketing did not end, they would be discharged if they did not go in, and Murray looked at Barnes, who shook his head, and Murray then said he could not answer 16 but he would start hiring new employees Murray testified that at this meeting "I told them that we were going to reopen the mine to go to work the next morning, and that everyone who had been employed by us had the right to return to work If they did not return to work the next morning, we would start hiring replace- ments " He also testified that Tatum and Holloway asked if they had been discharged, and that he assured them they had not been and could come back to work the next morn- ing or be replaced He advised those present they would go in about 8 a in in caravans from the Holiday Inn Murray identified those at the meeting as Barnes, counsel , Proud- foot, area manager for Stanley Smith Security, and em- ployees Henderson, Parnell,l" Smith, Sitter, Tatum, and Holloway He identified those who showed up for the cara- van the next morning as "a small group" of Parnell, Hen- derson, Smith, Stone, possibly Butler, and Pruitt, a newspa- per reporter and photographer he had invited to be present The caravan did not go to the mine on March 21 Riley, who had elected to go in to work at the mine alone as he had been doing daily, came to the Holiday Inn before the caravan left and reported that he had been beaten and his truck damaged at the picket line in an incident discussed below Picketing stopped on or about April I Murray named among those who returned to work Charles James, 16 Barnes who several times contradicted witnesses commented at this point that Murray did answer Barnes did not testify 17 Henderson and Parnell, who worked at the crusher about 4 miles from the mine continued to work after the strike began SURFACE INDUSTRIES, INC 163 Sr and Jr , Sitter, Henderson, and Parnell Strikers who returned to work had to make out new applications that were like the original ones but with added questions as to whether the applicant ever worked at a struck facility and would consent to taking a polygraph test 18 5 The 8(a)(5) issues The consolidated complaint as amended alleges that the Union, at all times since on or about February 24, has been designated by a majority of the mine employees as the ex- clusive collective-bargaining representative in an appropri- ate production and maintenance unit, that the Union re- quested recognition on February 24, that, on February 25 and at all times thereafter, Surface Industries has refused to recognize and bargain collectively in good faith with the Union as the representative of these employees, has made unilateral changes in wages, hours, and working conditions of its unit employees, and has negotiated as to terms and conditions of employment with the Employee Committee, in violation of Section 8(a)(5) and (1) of the Act a The appropriate unit The consolidated complaint alleges the appropriate col- lective-bargaining unit to be all the production and mainte- nance employees of Surface Industries at its mine near Dow, Oklahoma, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act Chapnick, one of the Union's counsel, testified, as a wit- ness for General Counsel, that based upon her experience with and knowledge of the collective-bargaining practices in the surface mining industry and her acquaintance with the operations of the Surface Industries mine the Respondent's production and maintenance employees comprise an appropriate collective-bargaining unit in a sin- gle-employer single-mine situation such as that involved herein No evidence was presented to show that this was not an appropriate unit I find that all the production and maintenance employ- ees of Surface Industries at its mine near Dow, Oklahoma, excluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act b The Union's representative status General Counsel introduced into evidence 32 signed and authenticated union membership cards, bearing dates ranging from January 22 to February 21, out of a total complement at the time of 36 employees Counsel for Sur- face Industries questioned some of the card signers who testified as to whether they had changed their minds about the Union because of union violence These witnesses, whether back at work since the strike or not yet working at the time of the hearing, answered that they had made no 18 The Board commented in Medicenter Mid South Hospital 221 NLRB 670 (1975) on a requirement that employees take polygraph tests attempt to withdraw their membership cards, and there is no evidence that any of the card signers did so Surface Industries asserted, at the hearing or in its brief, that the Union never represented an uncoerced majority of the mine employees, that a majority of employees repudiat- ed the union cards they had signed, or that the Union lost its majority when the mine reopened and some of the strik- ers returned to work and some new employees were hired Murray admitted, however, that about 60 percent of the employees who went on strike are not back at work There is, as indicated above, no evidence that any card signer has sought to withdraw his card Moreover, the Board holds 19 that "it is a well-settled principle that new employees are presumed to support the union in the same ratio as those whom they have replaced Furthermore, there is no pre- sumption that an employee has rejected the union as col- lective-bargaining representative when the employee elects not to support the strike On the other hand, there is a presumption that the strikers in this case, being union members, continued to support the Union " I find, accordingly, on the evidence in its entirety, that the Union, as alleged in the complaint, has at all times since on or about February 24 been the exclusive represen- tative of the Surface Industries employees in an appropri- ate unit for the purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment c The refusal to bargain On February 24, the Union sent a mailgram and a letter, signed by Rhodes and Weaver, International Union organ- izers, to Murray Construction Company in Dallas, in which the Union asserted that it had been designated as the representative of the mine employees in an appropriate production and maintenance unit, offered to prove its ma- jority by signed cards, and requested recognition and nego- tiations A reply mailgram, sent by counsel for Surface In- dustries on February 25, stated that Surface Industries had a good-faith doubt that the Union represented an un- coerced majority of its employees in an appropriate unit, and suggested that the Union could avail itself of Board procedures if it wished to establish its representative sta- tus 20 Surface Industries admits that it has refused, on Febru- ary 25 and at all times since, to recognize the Union as the collective-bargaining representative of its mine employees Further, the record shows that Surface Industries, as found above, has engaged in numerous and flagrant unfair labor practices, including threats of loss of jobs by discharge or shutdown of operations Surface Industries has also, as found above, made unilateral changes in working condi- tions after its refusal to recognize the Union as the exclu- sive representative of the mine employees, including the grant of a wage increase and promises to continue in effect benefits recently granted, and has negotiated as to terms and conditions of employment with the Employee Com- mittee, a labor organization initiated, assisted, and domi- 19James W Whitfield d/b/a Cutten Supermarket 220 NLRB 507 (1975) 20 An election petition has been filed by the Union but its processing awaits disposition of the complaint cases 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nated by Surface Industries Surface Industries contends that the Union has engaged in acts of violence which re- quire withholding of any bargaining order until the Union establishes its representative status in a Board election The union conduct in issue, discussed below, is found not to constitute violations of Section 8(b)(1)(A) of the Act on the basis, in some instances, of a lack of credible or probative evidence that the incidents occurred as alleged, or in others that union agents participated in, authorized, or condoned the conduct in question Moreover, the Board issues bargaining orders in cases of flagrant violations of the Act by an employer even where a union has engaged in unlawful but less egregious conduct The Court of Appeals for the Second Circuit in a recent opinion pointed out that "the Board balanced the Union's illegal activities during the strike against the Company's actions both before and after the strike, mea- suring, as was its duty, the effect of the Company's viola- tions against the gravity of the Union's misconduct in de- ciding whether a bargaining order was appropriate," and concluded that "The excesses by the Union in the course of its strike were unwarranted and illegal, they subject it to appropriate remedies under §8(b) And the inability of the Union better to control its strikers cannot be con- doned But we simply cannot find, on balance, that the Union activity should foreclose the issuance of this bar- gaining order "21 I find, therefore, on the evidence in its entirety, that Sur- face Industries, on February 25 and at all times thereafter, has refused to recognize and bargain collectively in good faith with the Union, which has, since February 24, repre- sented a majority of its employees in an appropriate unit, that it has during this period made unilateral changes in wages, hours, and working conditions of its unit employ- ees, and that it has negotiated as to terms and conditions of employment with the Employee Committee, in violation of Section 8(a)(5) and (1) of the Act I find further that Sur- face Industries embarked upon a course of unfair labor practices that began as soon as it learned that some of the mine employees were signing union authorization cards I also find that these unfair labor practices, including inter- rogation, threats, grants and promises of benefits, 22 the initiation, assistance , and domination of an Employee Committee, negotiating as to terms and conditions of em- ployment with the Employee Committee, making unilater- al changes in wages, hours, and working conditions, and refusing to recognize and bargain with the Union as the duly designated representative of the employees in the unit, would not only have precluded the holding of a fair elec- tion, but were moreover sufficiently pervasive and exten- sive in character to have undermined the Union's majority designation Accordingly, I find that it is appropriate in all the relevant circumstances to determine the Union's repre- sentative status on the basis of the membership cards which the employees executed, none of which were shown 21 Donovan v N L R B, 520 F 2d 1316 (C A 2 1975) see also Richlands Textile Inc, 220 NLRB 615 (1975) 22 The Board has held that `Such a combined application of both illegal stick and illegal carrot is not likely to be forgotten by any employee in the unit Almaden Volkswagen, 193 NLRB 706 (1971) to have been withdrawn, and, as these cards establish that the Union was designated by a majority of the unit em- ployees, that a bargaining order on this basis is warrant- ed 23 I find further that none of the Surface Industries con- tentions warrant denial of the issuance of a bargaining order in all the present circumstances I shall, therefore, recommend that Surface Industries be ordered to bargain collectively with the Union, upon request, as the represen- tative of its mine employees as of February 25, 1975 24 B The Issues in the CB Case The consolidated complaint alleges that the Union, by certain acts and conduct, has, since on or about March 7, restrained and coerced employees of Surface Industries in the exercise of their Section 7 rights The complaint also alleges that Marketti, who was until about April the Union's organizing director of the western region, Rhodes, an International Union organizer, Restme, recording sec- retary of Local 9313, the local in the Lone Star mine area, Jetton and McCleary, members of Local 9313, and Gene James, Oscar James, Young, and Holloway, union mem- bers and striking employees of Surface Industries, were agents of the Union within the meaning of Section 2(13) of the Act The Union stipulated at the hearing to the status as union agents of Lawley, an International board mem- ber, and Rhodes and Weaver, International Union organ- izers, but denied that Marketti held the described position at all times material herein 25 and that the others named in the compalint were agents of the Union I find, on the record as a whole, that Marketti, prior to the time he left the Union in April, and Lawley, Weaver, and Rhodes at all times material herein, were agents of the Union within the meaning of the Act I find that the evidence does not estab- lish that Restine, the named members of Local 9313, or the named striking employees of Surface Industries, were agents of the Union within the meaning of the Act 1 Union organization Rhodes came to the mine site to organize in about early February, and took up residence at a motel, the McHoma Lodge Weaver came to the area a little later Employees at the Lone Star Steel operation in McCurtain, Oklahoma, who were members of Local 9313 of the Union, attended some of the organizing meetings of the Surface Industries employees, and some of the union pensioners in the area attended these meetings and participated in other union activities Rhodes testified, and the evidence set forth above shows, that the Union had a card majority in Febru- 23 N L R B v Gissel Packing Co 395 U S 575 (1969) Scott Gross Compa- ny Inc 477 F 2d 64 (C A 6 1973) Baker Machine & Gear Inc 220 NLRB 194 (1975) 24 See Donovan v N L R B, supra, The Trading Port, Inc 219 NLRB 298 (1975), 0 R Cooper and Son 220 NLRB 287 (1975), Independent Sprinkler & Fire Protection Co, 220 NLRB 941 (1975), Black Angus of Lauderhill Inc 220 NLRB 976 (1975) Donelson Packing Co Inc and Riegel Provision Com pony 220 NLRB 1043 (1975) Ludwig Fish & Produce Inc, 220 NLRB 1086 (1975), Roman Catholic Diocese of Brooklyn and St Leos Parish as joint Operators of St Leo's School 221 NLRB 831 (1975) 25 Lawley Rhodes and Weaver were called as witnesses by counsel for the General Counsel Marketti was not called to testify SURFACE INDUSTRIES, INC 165 ary On February 24 the Union claimed to represent the mine employees and requested recognition, and on Febru- ary 25 Surface Industries rejected this claim and referred the Union to Board representation procedures Union meetings were held, after the rejection of the rec- ognition request, on Friday, February 28, and Saturday, March 1, with Rhodes in charge of the Friday meeting, and both Marketti and Rhodes in charge of the Saturday meet- ing Parnell testified, as a witness for General Counsel'26 who stated that this was presented only as backgrvand, that he attended union meetings at which retired miners commented about possible union violence to which no union official responded, that at one meeting Nail, who was on a committee to bring information from Surface In- dustries to the Union, said he could not be on the commit- tee if there was trouble because he was "already under indictment at the prison," to which Rhodes responded that Nail should not be concerned as he, Rhodes, was under three indictments for inciting riots or causing trouble, and that Rhodes, when asked about people who did not join the Union, said it was up to those in the mine to see that they did not care to stay on the job, and suggested laugh- ingly that one way was by putting grease on the seats of their equipment Parnell testified further that at another meeting at which both Marketti and Rhodes were present, someone again mentioned Nail's concern about being on the committee, and Marketti responded that Nail should not be concerned as he, Marketti, was under seven indict- ments for conduct including manslaughter and causing picket trouble, and stated also that the Union would help anyone who got in trouble and had plenty of money as it owned a bank On cross-examination by the Union, however, Parnell explained that his prehearing affidavits made no mention of the statements he had testified were made at these meet- ings, although the affidavits discussed in detail a meeting of employees called by Surface Industries, because he was not asked about the union meetings His affidavits also show that a retired miner stated at a meeting that the men should get Board recognition as Rhodes instructed, to which Parnell had made no reference in his direct testimo- ny Finally, as to the Nail indictments, Parnell admitted he knew that Nail was employed as a prison guard when a riot occurred there, and was acquitted of all charges arising out of the riot Henderson testified, as a witness for General Counsel, that he attended a union meeting at which almost all the Surface Industries employees, including Parnell, were pre- sent, that Rhodes introduced Marketti, that when some- one at the meeting asked about people who did not go along with the Union Marketti said it would be up to those working under a union contract to discourage the non- union people, and that, when someone asked what would 26 Much of the testimony presented by attorney Hooks for General Coun- sel in regard to the violations alleged in the CB case was incorporated in the testimony presented by Surface Industries as part of its defense to the alle gations in the CA cases Likewise, much of the testimony presented by attorney Dodson for General Counsel and the Union was applicable to the alleged violations in the CA cases and to the defense in the CB case happen if people got in trouble, Marketti said the Union would stand behind the members who got in trouble, and they should not "worry about the violence," and at another point that they should not worry about the "violence or anything" because he was under seven indictments himself for "Manslaughter and something to do with rioting", but Henderson did not recall whether Marketti or Rhodes made any response to a statement by Mike Hardin that he had seen what could happen to people who did not go along with the Union "because he had seen houses burned and people shot, in the way of violence " On cross-examination by the Union, however, Hender- son admitted his prehearing affidavit does not indicate that Marketti ever mentioned "violence " He testified at this point that "The person asked in the meeting what would happen if the people got into trouble, and Marketti said not to worry about it, that the union would stand behind their own people," and said nothing about violence Holloway, who testified as a witness for General Coun- sel and was recalled as a witness for the Union, testified that, at a union meeting on or about March 1, he asked Rhodes questions about a strike as he had heard that strik- ers elsewhere were all taken to jail, that Rhodes replied that the Union would take care of them in such an event, but that any of them who engaged in violence would be on their own, and that he could not recall that Marketti said anything about this Gene James testified, as a witness for the Union, that he has been living and working in New Mexico since June 26, that he previously worked for Surface Industries and went out on stirke on March 11, that he was at a union meeting in early March at which both Rhodes and Marketti were present, that someone asked what the Union would do for those who got in trouble, and the answer was "that they would take care of our jobs, but that was it any crimi- nal offense that might occur that they would not help you on that", and that he did not recall any talk about a Nail indictment The Nail indictments, as noted above, arose out of his being a guard at a prison where a riot occurred, and he was acquitted of all charges arising out of the riot Rhodes, in his testimony, denied that he encouraged violence by his statements or his silence at the union meetings, as alleged by Parnell and Henderson, and, moreover, asserted that he has never been indicted Rhodes also testified that there was some discussion at the February 28 and March 1 meet- ings of the possibility of a strike by the members of the McCurtain local, that he told the men if a picket line were set up they should honor it, that he informed Marketti of the strike rumors, and Marketti confirmed his instructions to the men, and that he also told the men the Union would not stand for violence on the picket line The men voted not to strike I found Parnell and Henderson evasive, self-contradic- tory, and unpersuasive witnesses I found Rhodes and Gene James candid and convincing witnesses, and, as set forth above, found Holloway a credible witness Accord- ingly, on the evidence as a whole, I credit the testimony that union officials did not at these meetings advocate, in- cite, or encourage acts of violence 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 The strike arrangements Although the men voted at the March 1 meeting not to strike, there were rumors that a strike might be called by the McCurtam local Murray admitted that he heard such rumors, and, as found above, management personnel, in violation of the Act, made threats to those who did not cross a picket line if one were established, and promised benefits to those who continued to work in the event of a strike The McCurtain local did call a strike on March 11, and sent men to picket the gate to the Surface Industries mine Most of the Surface Industries employees did not cross the picket line after it was set up, and about a week later they took over the picketing at the Surface Industries mine Some Local 9313 members came from McCurtain at times to assist them, a number of union pensioners participated in the picketing, and the wives of some of the picketers occasionally visited the picket site The picketing at the mine stopped on or about April 1, after an injunction and a restraining order had been issued, but many Surface In- dustries employees were still out at the time of the hearing herein There was no picketing roster drawn up until after March 21, when the injunction was issued Strikers previ- ously came to the picket site when they were willing to picket at various times for varying periods Rhodes was there almost every day, often early in the morning before the first shift started at 7 a in, and sometimes later in that day When Rhodes went to the picket site early in the morning, he started the open fire that was kept burning most of the time as it was very cold during this period There was also a horse trailer belonging to Holloway parked nearby where pickets went to rest or get out of the cold Tommy Sitter testified, as a witness for General Counsel, that he was at the picket line only a few hours as he had a business to run, that he was there two times, but it might have been three or four, he had no real idea how many, that on the first or second day of the strike he overheard Rhodes say he needed wood cut in a specific size to be used as firewood, that on March 21 about 8 of the approxi- mately 50 pickets present when Riley was beaten, as dis- cussed below, were carrying clubs, and he had seen clubs before at the picket line but could not remember when, and that he was at the fire or at the trailer, where Nail also was, and he could not identify any of the men who took part in the Riley beating On cross-examination by the Union, Sitter testified that he went back to work at the mine for about a week during the strike, probably in April, but he gave his dates of employment at the mine as about October 1974 to June 1975, that he did not think he asked Rhodes for $100 and was turned down, then that he did not do so, that he spoke about money not to Rhodes but to Weaver, and that he had a dispute with the Union when it refused to give him a strike-benefits check covering the time he returned to work at the mine James Smith testified, as a witness for Surface Industries, that he was at the picket line only for a couple of hours one day, that he heard Rhodes ask for men to gather firewood of a particular size and stack it as cordwood near the fence, and "stated the problem that they had run into up North that if the men all wanted to play ball and they were all carrying bats and they ended up in a bunch of trouble", that there were open fires at the picket line, and that four men "went and got the firewood" but Smith did not know what they did with it as he did not stay long enough to find out Rhodes and Gene James testified that pickets were di- rected to cut wood of a particular size to be used, not as clubs, but as stakes for picket signs, as replacements for a quantity of wood belonging to a farmer in the area whose wood had been burned, and as wood for the open fire that was kept burning at the picket site almost every day I found Sitter an unimpressive witness whose testimony appeared wholly unworthy of credence, and Smith's testi- mony was too vague to show any direction by Rhodes to cut wood to be used as clubs I have found Rhodes and Gene James to be credible and trustworthy witnesses, and find, on the entire record, that the evidence fails to show, as asserted at the hearing by General Counsel and counsel for Surface Industries, that pickets were directed by a union representative to cut wood to be used as clubs, or that they cut wood to be used for this purpose It is undisputed that management personnel, mechanics, and others went back and forth through the picket line without any trouble from March 11 to 21 On March 20, as Gene James testified, there were 30-40 pickets and a num- ber of vehicles parked at the picket site, including Hardin's truck with a flat tire removed, but two very large cranes were able nevertheless to drive through to the mine Van Hoose described the cranes as 14 feet wide and 50 feet long plus a boom, with flagmen on the front and the back Sur- face Industries during this period kept the mine area under heavy guard Murray testified that Stanley Smith Security had provided guards for the mine since February 28, that he also utilized some Kent Bretz Investigators personnel, and that the approximately 28 guards at the mine carried tear gas and guns, including rifles, using dogs and horses at times Guards accompanied some supervisors to and from the mine, and also when the supervisors went out in the evening 3 The events here in issue a The Riley incident The consolidated complaint alleges that the Union, by its members Jetton, McCleary, and Restine, at the sugges- tion and encouragement of its officers and agents Rhodes and Marketti, on or about March 21, on the picket line near the entrance to the mine and in the presence of em- ployees of Surface Industries, inflicted bodily injury on Ri- ley, a supervisor of Surface Industries The Union main, tains that the strikers involved in the incident, if any, were defending themselves against Riley, who brandished a sawed-off shotgun and a Derringer pistol, and had threat- ened to kill union men who got in the way of his going to work 27 27 This was alleged as a union violation in the CB complaint issued on September 29 in the course of the instant hearing months after Riley s display of a gun in this instance had been alleged as a violation in the CA cases SURFACE INDUSTRIES, INC 167 When the strike began on March 11, a picket line was established at the main gate to the mine, and pickets ap- peared early in the morning, prior to the beginning of the first shift at 7 a in , frequently at this time of year before daybreak As the weather was very cold, the pickets main- tained open fires There was also generally a large horse trailer that belonged to Holloway, one of the strikers, parked beside the road, and the pickets could go into the trailer to get warm or to rest Management personnel, me- chanics, and security guards had been going through the picket line daily since the strike began without incident Riley, who testified that he became a foreman before the strike, admitted he had gone back and forth many times, sometimes as many as five times a day, from the beginning of the strike on March 1I until the events of March 21 Riley often stopped to talk to the pickets, and at other times drove through without stopping Rhodes testified that he talked to Riley only once when Riley stopped at the picket line, identified himself as a supervisor, and Rhodes told the men standing there that Riley was management and they should let him go through Holloway testified that Riley stopped at the picket line on March 19 and told some of the pickets Murray would be at the Holiday Inn, wanted to talk to the Employee Committee but any others could come also, and then drove back into the mine Murray held the meeting on March 20 to announce that the mine would reopen the next day, told some men that those wishing to return could meet at the motel and go to the mine in a convoy, and notified Riley of this plan by telephone, but Riley responded that, as he had been going back and forth through the picket line with no difficulty, he would go in on March 21 alone as usual Riley testified that he owned a sawed-off riot shotgun and a Derringer pistol, that he carried them to work for about 6 months, both loaded, the shotgun on the seat of his pickup and the Derringer on his person, and that he had carried the Derringer in his boot but, on March 21, "be- cause I had given another guy my scalpel it was tucked in my belt " Van Hoose testified that he rode with Riley on March 20 and saw his shotgun or rifle, but did not recall whether it was in a rack or on the floorboard Some of the pickets testified that they did not see any guns when Riley stopped to talk to them at the picket line prior to March 21 Riley arrived at the picket line on March 21 before day- light Some of the pickets recognized his pickup as it was approaching, by its lights Riley testified, as a witness for General Counsel, that he pulled up to where "the boys was all ganged in the middle of the road I stopped my truck and one boy threw a log through the windshield and they all went to screaming, and one boy jerked me over to the door and hit me and knocked me over in the pickup, and then the other door came open They broke the back glass out and one got up in the pickup and was beating on me " Asked then what was the first thing he remembered happening, he answered "I pulled up and heard somebody holler, `Drag him out of there and let's teach him a lesson,' and wham, the log hit the windshield and the glass hit my eyes About that time, Mr McCleary jerked me over to the window, hit me, and knocked me over in the seat, and then they jerked the door open , and then he commenced to hit on me in the truck Some more boys knocked the glass out and tore the glass out on the other side of the pickup They was pulling on me from both sides trying to pull me out of the pickup, and I was hanging on to the steering wheel and they beat on me there until I was almost knocked out " In another description of what occurred , Riley testified that "When I pulled up, I was rolling the window down and stuck it in Park at the same time They walked up to the pickup and walked around He walked up to the pickup, didn't say a word, reached in the pickup , caught me by the shirt, jerked me over to the door, and hit me right there, and knocked me over in the pickup, and the log hit the window and knocked glass in my face at the same time " At this point, he testified, the pistol fell to the floor As to the conclusion of this episode , Riley testified at one point that "I remember some guy hollering, `That's enough, he's got the message Leave him alone "' At an- other point Riley testified that "Last I remember some guy hollered, `I think he's got the message That's enough,"' and that they then told him to get out of there and to "go tell my bosses that's just a sample of what we was going to get if anybody else tried to cross " He also testified that "I just asked him to leave me alone and then I'd leave," and that was the only thing he said to the pickets At another point Riley testified that the last thing he remembered was some pickets "said, `Look he's got a shotgun,' and took it out of the pickup " He denied that he pointed the shotgun out of the window, and , further, that he ever touched it except with his elbow when he was knocked over in the pickup and knocked the shotgun to the floor He explained that he never reached for either of the loaded guns at any time during this episode because "I'd gone through there for two weeks so why should they bother me that morn- ing" Van Hoose, who had spent the night at the mine , testi- fied that he looked out about 6 a in on March 21 to see if there was picketing, but it was almost "pitch dark" and there were no lights at the intersection , that he saw Riley's truck approaching which he recognized by its lights, and that Riley was there "a short bit," then backed up and left while it was still dark Some of the strikers who were at the picket site at the time testified that the road was open and was not blocked by pickets or in any other manner The road was generally open as indicated by the uncontradicted testimony regard- ing persons and vehicles that went in and out of the mine during this period Mike Hardin, who was at the open fire, and others testi- fied that they saw Riley's truck approaching for about a half mile , that Riley stopped about 30 feet from the fire to talk to some pickets, as he occasionally did, that there were shouts of "Look out, he's got a gun", that an object was then thrown through Riley's windshield and some pickets struck him , that they used their fists and there were no clubs , that the entire episode lasted only a few seconds before Riley backed his pickup to where he could turn around, and drove away, and that his two guns were left lying in the road Restine testified that he came out of the horse trailer and was approaching Riley's pickup when he 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard someone shout that Riley had a gun, that as he backed away from the direction in which he had been walking he heard a commotion and glass breaking, that Riley had frequently stopped to talk to him and others at the picket line, and that he had never seen a gun in Riley's truck and did not see Riley point a gun on this occasion Nail testified that he also walked toward the pickup from the trailer, that he did see a shotgun pointed out of the window, that he heard someone yell a warning about the gun, and that he jumped in front of the pickup to be out of the way of the gun and then went across to the side of the road away from the driver's window He also testified that he saw no violence before he saw the gun He maintained that he took no part in the beating of Riley or the damage to the pickup, and did not see who did Riley testified that, when he drove away, he headed for the Holiday Inn to tell those in the caravan not to try to go in to work, that he stopped on the highway to remove the glass from his eyes, that he met Butler, "one of the bosses," at the 270 Drive-in and "I stopped him, and I proceeded to drive my pickup and I drove it to the `Y' at Krebs, and I was about to pass out again I stopped and got out of my pickup and Lowell took me then to the Holiday Inn " Butler apparently took him in Riley's pickup as Riley, who was at the Holiday Inn for 15-20 minutes, spent part of that time posing for pictures standing by the pickup The pictures were taken by the newspaper photographer Mur- ray had asked to be present for the planned caravan to the mine 28 Riley was then taken to a hospital He testified that the hospital washed out his eyes, and he had no trouble with them He also testified that the doctor who examined him said he could go home but, when Riley almost lost consciousness, examined him again, found he had suffered a concussion on one side,29 and directed that he stay in the hospital to recuperate Murray and other company repre- sentatives came to the hospital to take a statement from Riley as to what occurred Surface Industries maintains that there was no reason Riley should have pointed a gun at the pickets on this par- ticular morning as he had driven numerous times through the line with no difficulty, and that he was beaten because the pickets were aware of the caravan plan and wanted to warn Surface Industries of the danger of going through the picket line to reopen the mine Gene James testified that he was at the picket line on March 20 and heard nothing about the mine reopening the next day Holloway and Tatum attended the meeting with Murray at the Holiday Inn on March 20 Tatum was not questioned about this meeting Holloway testified that, while they were there, Henderson, Parnell, Smith, Sitter, and Barnes, whom they did not then know, were present, that Murray said those who wished to return to work could file new applications, that other matters were discussed, but that he could not recall Murray making any reference to a plan to return to work in a convoy on March 21, although he testified there were rumors almost every day about the mine reopening And Rhodes and Weaver de- nied that they heard of any company plan to reopen the mine and to go there in a caravan on March 21, although they had heard reports of groups going in from time to time during the strike, and denied also that there was any union plan to stop employees going in to work on that date Rhodes also testified that as far as he knew the mine had been operating during the period March 11 to 21 when, of the approximately 33 employees who signed cards, about 20-25 were out on strike Surface Industries, which maintained that some of the strikers knew of the plan to reopen the mine and presum- ably told the others, recalled Richards as a witness on this matter Richards testified that he did not recall if he at- tended a meeting on Thursday, March 20, at the Holiday Inn, that he heard there was one but did not believe he was there, that he did not attend any meeting there when Mur- ray talked about reopening the mine, and first heard of such a meeting at the instant hearing, that he was not at the Holiday Inn on the morning of Friday, March 21, when the caravan was scheduled to go to the mine, but came there that day close to noon, after Riley was there and had gone to the hospital, and, when Barnes argued that he had seen Richards there earlier in the day, that he, Richards, saw Murray and others at the Holiday Inn on March 21 but not Barnes Richards also testified that he had not been at the picket line during the period March 11-21, and that he thought it was Parnell who told him to go to the Holiday Inn on March 21 30 Barnes then recalled Parnell, who testified that he went to the Holiday Inn about 7 a in on March 21 to be part of the convoy going to work, that Riley was there at the time near the vehicle in which he had been beaten, and that among several others there at the time was Richards, with whom he and others had coffee in Murray's room for about 30 minutes, that Barnes was in the motel but not in the room at the time, that he went to the hospital when Riley's statement was taken, and Richards was still at the Holiday Inn when he returned, and that Richards never went back to work or showed up after that day Murray, in his testimony about the Holiday Inn meeting on March 20 and the caravan on March 21, named those who were present on these occasions He did not include Richards None of the others who were present on this occasion testified to seeing Richards until Parnell did so when he was recalled I found Richards a more reliable witness than Parnell, and credit Richards' testimony that he did not know of the March 21 caravan plan I find, accordingly, on the record as a whole, that the Union did not know of this plan on the morning of March 21 As found above, Riley stated at the February 18 meeting that he would kill "any Union son of a bitch" who inter- fered with his work or tried to stop him from going to work The Union maintains that it was because of that threat and because Riley pointed a shotgun at pickets on the morning of March 21 that Riley, who had gone in and out of the mine a great many times without incident, was 28 The photographs were not placed in evidence 29 Riley, in his testimony, kept referring to a concussion on the left side 30 Richards testified that he Parnell Henderson Butler and Siscoba while gesturing toward his right side When this was pointed out he said it worked at the crusher and that all of them worked throughout the strike was on the right side except Siscoba and himself SURFACE INDUSTRIES, INC 169 assaulted by pickets that morning Restore, however, testi- fied that he did not see a gun as he approached Riley's truck on the driver's side Riley could not identify the pickets who participated in beating him His affidavit names Restore as the one who beat him, but one copy of the affidavit available at the hearing had a line drawn through that name and the name McCleary written in, while another copy of the affidavit was unchanged At the hearing, when General Counsel asked if Riley recognized anyone in the courtroom as hav- ing taken part in the beating, Riley answered that he recog- nized McCleary, pointing to Restore, as the man who hit him As noted above, Sitter, who testified he was near the fire at the time, was unable to identify any of the men who took part in the beating Pickets who were present when this incident occurred maintained they could not testify to who else was present because it was dark, men were divid- ed among the trailer, the fire, and the group near Riley's pickup, and those who were at some distance did not ap- proach when they heard shouting about a gun Restine testified that he saw no union officials at the picket line at this time There is no evidence that Marketti was at the site when this incident occurred Rhodes testi- fied that on March 21 he arrived at the picket site about 5 30 a in , as he frequently did to start the fire, that shortly after that he drove with the James brothers to the east gate, more than a mile from the main gate, to see if it was being used to enter the mine as lights had been seen in that vicin- ity, and that he and the James brothers sat in the car and drank coffee for about an hour before they returned to the main gate, arriving there shortly after Riley left Gene James i likewise testified that he was at the main gate for a few minutes that morning and then at the east gate with his brother and Rhodes for about an hour, and that he heard later what occurred in the Riley incident He also testified that he did not recall seeing Restme at the gate that morning, that he did not know McCleary or Jetton by name, and that he thought he saw Nail when he returned from the east gate but not earlier Rhodes testified that when he returned to the main gate, Riley's guns were lying in the road, and he was informed of what had occurred He told one of the men to telephone Weaver and have him call the sheriff, who, when he ar- rived, took possession of the two guns, both of which were loaded Rhodes also testified that, when he first arrived at the main gate, there were 12-15 men there, and about 25 when he came back from the east gate Restore testified there were about 30 there when the sheriff arrived, some of whom came after the Riley incident had occurred Gene James testified that there were 30-50 men and about 12 vehicles at the main gate on March 21 Murray had a heli- copter that day to take food to the security personnel in the mine He testified that he observed at the picket site that day "by estimate pretty close to a hundred men at different times " I find the record does not show that union agents partici- pated in or were present when the Riley beating occurred, or suggested or encouraged such conduct On the contrary, 31 James came to the hearing from New Mexico on the morning he testi- fied and had not heard any of the other witnesses it is admitted that management representatives, particular- ly Riley, had previously gone through the picket line a great many times without incident In fact, Van Hoose tes- tified that he knew of no one denied entrance or exit at any time other than the Riley incident on March 21 Such vio- lence is not to be condoned, and seems particularly repre- hensible when several men physically attack one man On the other hand, the only one involved who admittedly was carrying loaded guns at the time was Riley I am convinced that Riley did not brandish the guns, but some of the pick- ets apparently noticed the guns and reacted to what ap- peared to them to be a threatening situation I find, on the record in its entirety, that General Counsel has not estab- lished, by a preponderance of credible and probative evi- dence, that the Union was responsible for the Riley beating and thereby violated Section 8(b)(1)(A) of the Act 32 Ac- cordingly, I shall recommend dismissal of these allegations of the consolidated complaint b The fight at Dew Drop Inn The consolidated complaint alleges that the Union, by its officers and agents Rhodes and Marketti, on or about May 3, at the Dew Drop Inn, encouraged, incited, and failed to disavow the acts in their presence of members Gene and Oscar James, Young, and Holloway, who inflict- ed bodily injury on Riley and Van Hoose, supervisors, and Polley, a security guard, of Surface Industries The Union in its answer asserts that the fight was initiated by compa- ny personnel, and that Rhodes and Marketti did not have knowledge of the fight, and did not encourage, incite, and fail to disavow these acts The Dew Drop Inn is a nightclub which on some eve- nings has a live dance band It is situated almost directly across the highway from the McHoma Lodge, a motel where Rhodes had been living for months, and which served at times as a meeting place for union personnel, as the Holiday Inn did at times for meetings called by Surface Industries On May 3, a group that included Patton, at that time the Surface Industries superintendent, Van Hoose, a foreman, Riley, a foreman, and his wife, another couple named Bur- ton who were friends of the Rileys,33 and Polley, a security guard who accompanied supervisors to and from work, and at other times as well, spent the evening together Some of the group testified that they first had dinner at the Holiday Inn, and later went to the Westside Club, where there was some drinking, principally of beer, and dancing to juke box music Riley testified that they had supper at the Westside Club, Mrs Riley that they were there only 10 minutes At Patton's suggestion that they go where there was a live band, the group left the Westside Club and went to the Dew Drop Inn It was the first time either Mr or Mrs Riley had been there and the second time that Van 32 N L R B v Local 1016 United Brotherhood of Carpenters & Joiners of America AFL-CIO et at [Booher Lumber Col 273 F 2d 686 (C A 2 1960) United Brotherhood of Carpenters and Joiners of America AFL-CIO et at [Endicott Church Furniture, Inc ] v N L R B 286 F 2d 533 (C A D C 1960) United Mine Workers of America, et at (Blue Diamond Coal Compa ny), 143 NLRB 795 797 (1963) 3s The Burtons were not called to testify 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Noose was Mrs Riley testified that they arrived about 9 or 10 o'clock, Riley that it was 10 or 11 o'clock, and Polley that it was about 11 o'clock and they were having drinks and dancing there about 1-1/2 hours The Dew Drop Inn was very crowded-Van Hoose estimated about 300 peo- ple-but the group was seated at a table that was located next to the rear exit door, at the far end of the room from the bar, and near another table where friends of the Rileys were seated Mrs Riley testified that there were four other couples there she knew Van Hoose testified that Mike Beall, who was hired at the mine after the strike began, was there and came over to the table, and Polley testified that Beall was there with a date and another couple The group ordered drinks, principally beer, some of them danced, and some chatted with friends Riley and Van Hoose testified that they knew union or- ganizers were staying at the nearby McHoma Lodge Riley also testified that, about a half hour after the group ar- rived, he got a call to move his car so someone else could get out, that when he went to the parking lot he saw Rhodes, Marketti, Holloway, Hardin, and Young outside but they did not speak, that he went back and told the others that he had seen "some of the union boys we've had trouble with I think we'd better leave I don't want any more trouble with nobody", that about a minute later, while they were talking, "They come in the side-all the boys did and stood right up at the bar " Mrs Riley testified that Van Hoose went to the men's room several times but she did not recall that he or Patton mentioned seeing any union men, and that only Riley did when he returned from the parking lot Mrs Riley also testified that she was afraid of possible trouble but told Riley they would stay or go as he preferred, and that they decided the union men would not bother them with "so many of ours in there " In addition to the crowd present, including several friends of those in the group, there were a number of uniformed guards employed by Dew Drop Inn Van Hoose testified that at almost midnight he was on the way back to the table from the men's room when he saw Oscar and Gene James, Young, Hardin, Holloway, Marketti, and Rhodes at or near the bar, that he told the others about this and they discussed leaving to avoid trou- ble, but decided to stay in view of the number of Dew Drop Inn guards, that he did not see Riley go to the park- ing lot, and that there was no mention of union men being there before he reported it Polley testified that he did not see Riley go out to the parking lot, that he remembered Van Hoose went to the men's room and, when he came back, mentioned seeing Rhodes and Hardin, and that the group did not discuss leaving Van Hoose testified that some in the group that evening were drinking beer, but "Riley's wife was drinking, I don't know, gin or something Something in a bottle, and I be- lieve the lady from the couple that I don't know their names was drinking from a bottle I can't remember " He testified further that he had six or seven beers, that "Patton might have mixed a drink out of a bottle," that Patton "had a few drinks out of a bottle," and, asked if Patton was "pretty well loaded by 11 30 that night," answered, "I-I don't know He didn't appear to be Not to me " Mrs Ri- ley testified that she could not recall how much beer the group drank The witnesses for General Counsel described the fight that took place as follows Riley testified "There were two boys by the name of Oscar James and Gene James who walked back to our table, and were shaking hands with Willie Patton across the table standing right by my chair Tommy Van Hoose was sitting right beside me, one of the mine foremen Mr Holloway walked right up over my chair and I looked up and said, `Hello, Dub' and he said, `Hello, Scab,' and I started to get up He or somebody, I don't know who, hit me with a club and that's the last I remember until I came to in the hospital I had all the hide kicked off the side of my face and off of here I had shoe marks all in my back where they stomped me " Mrs Riley testified that the James brothers shook hands with Patton, and commented that it was nice to see him back, that when Holloway, whom the Rileys had known for many years, approached, she got up and stood beside her husband, and wanted to get away, although nothing hostile had yet occurred, that when Riley protested being called "scab" Holloway hit Riley with his fist, that some- one else jumped on Riley while she was trying to hold Holloway's arm and, when Holloway went down, she was on top holding him by his hair, and that she did not see anyone else get hit, but, when a friend from the next table came to help Riley, someone held him, and then someone was hitting Burton and his wife was screaming, that she walked back to where the men were beating Riley but was pulled away again, she did not know by whom, and that she then saw two men she did not know jump up and run toward the front, "the law" arrived, and she saw the back door was open She denied that she saw either of the James men jerked across the table Van Hoose testified that Gene and Oscar James and Young came over, while Marketti, Rhodes, and Hardin stood at another table, and spoke to some in the Patton group but mainly to Patton, shaking hands and exchanging pleasantries, that he thought Patton shook hands with Os- car James but did not pull him across the table or do any- thing else to him, and Oscar James' hands were not still across the table when the fight began that Van Hoose could recall, that Young then sat down at a nearby table, and Marketti, Rhodes, Hardin, and Holloway walked over, and Riley greeted Holloway, who called Riley a "God damn scab", that when Riley protested being called a scab, Holloway hit Riley "with his fist as best I could tell", that Van Hoose started to get up to help Riley and "Gene James then hit me he knocked me down I guess The table crashed down, and there was, you know, just kind of mass confusion there for a little bit and getting hit and kicked," but he could not tell who was doing the hitting and kicking, that he finally got up and just then Young hit him "With his fist I guess", that he might have swung at someone in the mass confusion but did not hit anyone as far as he knew, that he did not see Polley or Beall hit anyone, that he was hit "several times" but did not see any clubs, although his prehearing affidavit states that he was hit about 15 or 20 times and that some of the "picketers had clubs that appeared to be part of a cue stick or a table SURFACE INDUSTRIES , INC 171 leg approximately two feet long and approximately two inches thick", that the fight lasted about a minute or 1-1/2 minutes before the Dew Drop Inn guards broke it up, and that, when the guards arrived, Marketti, Rhodes, and Har- din walked out the front door to their car, which was next to the police car Van Hoose also testified that he had seen Hardin, Weaver, and Oscar and Gene James on previous occasions at clubs with no trouble or fear of trouble Polley testified that Oscar and Gene James and Young came to the table together, that they spoke to Van Hoose, that Oscar James reached across the table to shake hands with Patton and then stepped back, that he never saw any- one jerk Oscar James across the table, that the three men discussed with Patton getting their jobs back and Patton told them there were none available but they could put in applications, that Riley saw Holloway and greeted him but Holloway called Riley a "damned scab," that Riley started to get up and said Holloway was not to call him that when Holloway hit Riley "with something" and Riley fell to the floor, that Van Hoose started to get up and Gene James knocked him down, that Riley while down was being kicked but Polley could not see by whom, that Polley went to help Riley up when "I began to feel a blow to the back of my head" but he could not tell who was hitting him as the blows were coming from the back, that he fell and someone kicked him, that he started to walk away from the area when Young hit him in the eye with his fist and they wrestled to the floor, and that two of the Dew Drop Inn guards raised him, and held his arms, while Holloway, Young, and the two James went out the back door Polley testified that he never saw Rhodes or Marketti at the Dew Drop Inn The union witnesses testified to what occurred as fol- lows Oscar James testified that he and Holloway on May 3 went to a meeting in McCurtain of the local union there, that on their return they went to the Dew Drop Inn, that he saw Gene James and Young arriving there at about the same time, that as they entered they saw Marketti and Rhodes at the bar, that later he observed that Gene James and Young had found and sat down at an unoccupied ta- ble, that he started in the direction of that table alone as he and Holloway had become separated but on the way went over to a nearby table to shake hands with Riley and Van Hoose who had greeted him, that he then reached across the table to shake hands with Patton, that Patton held his hand and jerked him across the table, that the table fell with him across it, and that by the time he picked himself up the guards were there and the fight was over 34 Gene James testified that he and Young went to the meeting in McCurtain, that on the way back they stopped a few minutes at the McHoma Club, that they then went to the Dew Drop Inn and saw Oscar James and Holloway arriving at about the same time, that he had one beer at the bar, that he and Young sat down at a table, about 90 feet from the bar where Marketti and Rhodes were, but near a table at which he saw Oscar shaking hands with Patton and others, that he saw Patton jerk Oscar across the table, got 34 Oscar James testified that he was 5 feet 4 inches and weighed 145 pounds up and hit Patton,35 and, when Van Hoose tried to hit him, hit Van Hoose also, and that he did not remember the rest of what occurred in the melee He also testified that he was not arrested for this incident but that he, his brother, Hol- loway, and Young were in court on May 12, where they entered a not-guilty plea to a charge of fighting brought by the Dew Drop Inn 36 Young testified that when he and Gene James, who had been at the meeting in McCurtain, arrived at the Dew Drop Inn, Holloway and Oscar James were entering, that Rhodes and Marketti were at the bar, that he found a table, called to Gene James, and they went to the table, that he noticed Oscar James shaking hands with Patton, then fall forward and "everything just broke loose", that he hit a man at the table who was about to hit him, and, when Van Hoose swung at him he hit Van Hoose, that he did not hear anyone called a "scab", that at about this point Holloway, whom he had not seen earlier, said the guards wanted them to leave, and they walked out the front door 37 Holloway testified that, after going to McCurtain for a meeting, he arrived at the Dew Drop Inn with Oscar James about the same time that Young and Gene James did, that Rhodes and Marketti were at the bar, that he thought it was Young who found a table, that on his way to the table he saw Oscar James shaking hands with the bosses at an- other table and then saw Patton jerk Oscar James, who went down with the table, that as he approached that table he saw Riley getting up so he hit Riley to keep Riley from hitting Oscar James, that nothing was said by either of them, and no one used the word "scab", that one of the Dew Drop Inn guards told him to leave, he told this to Oscar James and Young, and they left Rhodes, who was living at the McHoma Lodge, testified that he walked across the road to the Dew Drop Inn on May 3 with Marketti, and they went to the bar, that he saw some strikers there including Oscar and Gene James, Hol- loway, Hardin, and Young, that the place was very crowd- ed and some of that group said they would let him know if they found a table, that he heard someone "holler" that there was a fight, but he was still at the bar and could not see from there what was happening, that he saw some of the strikers walking out, and that he and Marketti later walked back to the McHoma Lodge He also testified that he never encouraged or incited violence, that on the con- trary he stated at meetings he wanted no fights or violence, and that he did not know there would be a fight at the Dew Drop Inn that night It is apparent from the record as a whole, and I find, that the Patton group went to the Dew Drop Inn knowing union men might be there, whereas the union men did not 35 Gene James testified that he was 5 feet 11 inches and weighed 190 pounds and that Patton, who was not at the hearing, was about the same size 36 Counsel for Surface Industries placed in evidence the court records in that matter which he stated was still pending One of these documents which is dated September 22, contains a docket entry, State vs W A `Dub' Holloway Gene James Oscar James and Dennis Young Stricken from this docket As to the effect to be given non-Board proceedings see W C McQuaide inc 220 NLRB 593 (1975) 37 Young testified that he was 5 feet 11 inches tall and weighed 185 pounds 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD know in advance that the Patton group would be there It is also apparent that some in the Patton group had been doing a good deal of drinking Patton did not testify, and the record does not show how much drinking he did before suggesting the group go to the Dew Drop Inn or while at the Dew Drop Inn Moreover, there were many discrepan- cies in the descriptions of what occurred given by those of the Patton group who testified as to who was there, what was said, and who hit whom, with what, and when As to the union men involved, it is clear that Rhodes and Mark- etti remained at the bar, across a crowded room, with many occupied tables, a dance band, and a dance floor between the bar and the table where this incident occurred I find, on the evidence in its entirety, that General Counsel has not established, by a preponderance of credible evi- dence, that union members engaged in a planned unpro- voked assault on company representatives, or that Rhodes and Marketti encouraged, incited, and failed to disavow the alleged acts in their presence I shall therefore recom- mend dismissal of this allegation of the consolidated com- plaint c The courthouse incidents The consolidated complaint alleges that the Union, by Marketti, on or about May 15, in or about the Pittsburg County Courthouse in McAlester, (a) threatened certain employees of Surface Industries with loss of life, and (b) assaulted an employee, because these employees refrained from engaging in union or concerted activities The Union denies these allegations On or about May 15 there was a hearing at the county courthouse which was attended by Surface Industries man- agement representatives, security guards, and employees, as well as by strikers and union representatives All left the courthouse at about the same time when the hearing was adjourned Parent and Goff, employees, walked out togeth- er Parent testified that one of the security guards walked down the steps with them, while Goff testified that Murray and some security guards were in back of them, but did not walk down the steps with them As Parent and Goff walked to where Parent's pickup was parked, a number of union men who had been at the courthouse were walking behind them, to where their vehicles were parked, and caught up with Parent and Goff when they stopped at a crossing to wait for a traffic light Parent testified, as a witness for General Counsel, that he glanced back and saw the union men approaching, that "Before the light could change, they walked up there and Marketti walked up and he says, `There's two fellows that's going to die,' you know, `going to be dead' or something And he just shoved me off of the curb and I caught myself Just open handed-just hit me in the back of my shoulder and just kind of threw me off balance and knocked me off there", that "Sam [Goff] said, `We don't want no trouble,' and we just went on toward the pickup We got to the pickup and I walked around and unlocked the door and got inside and opened the door for Sam You know, they followed us on across the street and just stood around the pickup a little bit Some of them just mumbled and some was leaning over and looking in the pickup One fellow I never-I don't know who it was or anything, but he stuck his face right up against the glass I was kind of scared, I guess you'd say nervous anyway, and he looked right in the pickup So I had a little old pistol so I just picked it up and laid it on the seat thinking maybe, you know, they might think twice before they bothered us I wasn't going to use it, I just wanted to warn them that I wasn't going to take no more of it, so we got the pickup started and drove off without any trouble " Parent also testified, on cross-examination by the Union, that he knew Marketti only because the judge called out the names of a number of union men in the court proceeding, and each one including Marketti stood as his name was called, that he had owned the gun about 2 years, that he had carried it in his truck and sometimes to work since about 2 weeks before May 15, and that he did not have a permit to carry a gun Parent also testified that this occurred on the main street of McAlester in the middle of the afternoon, with a good many people in the vicinity, and that he was not wor- ried as he started to walk to his pickup but, when Marketti "pushed me kind of knocked me off balance," and made his remark, "I was nervous " Asked if he thought Marketti was going to kill him, he answered, "Well there was enough of them," and, asked again if he thought so, he answered "Well you can't never tell " 38 Goff testified that he and Parent passed several union men and proceeded to the corner where, as they stopped for a traffic light, "One of us looked around and said, `Here comes the group,' and Marketti was in the lead About that time I stepped off the curb About that time Marketti got there and he shoved Johnny by the shoulder off the curb about the same time he said, `These two guys are going to die"' that "I said, `Let's go on, John We don't want any trouble with these people,' and we ran the light and went on to the pickup", that the group approached as he and Parent were getting into the pickup, "and they was all trying to talk and made idle threats I shut the door they were all trying to talk and I couldn't point one of them out" to identify them Goff testified that he was frightened by this episode because of an encounter about 2 weeks earlier 39 when a number of union men approached his ve- hicle, that "They were all trying to talk They were angry I showed them a pistol I had with me and told them I intended to protect myself They made their threats and told me I didn't have a job I don't know who said All I know is what the group said that I couldn't work down at this coal mine, that if I did that I was going to get some of the same medicine some of the other bosses had gotten Also they made a statement that if I told this to the law, to my bosses, to the press, or to anyone else that they'd get me " He testified, on cross- examination by the Union, that virtually everyone who worked during the strike probably carried a gun, that he pointed the gun at this group, possibly with his finger on the trigger, when the group was about 10 feet from him, that none of the group was armed with guns or any other 38 Parent testified that he was 28 years old was 6 feet 2 inches tall and wethed 190 pounds 3 This incident is not alleged as a violation of the Act SURFACE INDUSTRIES, INC 173 weapons, and that his gun would be loaded if there was a repetition of this incident 40 Dennis Fink and David Foster testified, as witnesses for the Union that they were in the May 15 group that left the courthouse and walked toward their vehicles, which were parked in the same vicinity, that they were close enough to Marketti to see what he did and to hear what he said, that Marketti did not touch or speak to Parent, that there was no communication between the group and the two men, that they saw Parent stumble as he looked back at the group that Goff "mumbled something" and he and Parent crossed against the light, that when the group, which wait- ed for the light to change, got to Parent's pickup, they saw Parent put a clip in his gun and hold it up, that they stopped in surprise to see someone with a gun in the down- town area, that Parent drove off, and the group, which included a couple of women and a small child, walked to their vehicles Young and others in the group testified that they were too far in back of Marketti to hear if he said anything, but that they did after crossing the street see Parent holding the gun I have previously found Dennis Fink a credible witness, and I found him and Foster more believable witnesses than Parent and Goff, whose testimony as to what occurred did not have the ring of truth Moreover, the record shows that these incidents occurred on the busy main street of Mc- Alester in the middle of the afternoon, with company men and security guards all leaving the courtroom at the same time, and many other people on the street, that all those involved were heading for vehicles parked in the same area, that the union group waited for the traffic light to change, and did not pursue Parent and Goff who crossed against the light, that Parent testified the union men just mumbled and looked in the windows of the pickup, while Goff testified that the group were all "trying to talk and made idle threats", and that only Parent displayed a gun I find, on the basis of the demeanor of the witnesses, the probabilities of the situation, and the entire record, that the evidence does not establish that the Union, by Marketti, threatened employees with loss of life or assaulted an em- ployee, because these employees refrained from engaging in union or concerted activities I shall therefore recom- mend dismissal of these allegations of the consolidated complaint 41 d The Beall incident The consolidated complaint alleges that the Union, by its member Gene James, in furtherance of suggestions and encouragement by its officers and agents Marketti and Rhodes, at the home of a nonstriking employee, threatened an employee on or about June 24 with loss of life if he continued to work at Surface Industries during the strike The Union denies that such a threat was ever made, and denies also that either Marketti or Rhodes ever suggested or encouraged strikers to make such threats James Beall, called as a witness by General Counsel, 40 Goff testified that he was 38 years old 5 feet 10 or 11 inches tall and weighed 185 or 190, and that Marketti was about the same size 4 See The Buffalo Newspaper Guild Local 26 American Newspaper Guild AFL-CIO-CLC (Buffalo Courier Express, Inc) 220 NLRB 79 (1975) testified that at the time of the hearing he was employed by Stanley Smith Security and assigned to Surface Industries, that in the latter part of May he was driving a water truck for a trucking firm, that his sister is married to Eddie James, the son of Oscar James and the nephew of Gene James, and that his brother Mike was hired by Surface Industries after the walkout in March He also testified that on about June 24 "I was down at Ed James' house and we walked around back where Oscar and Gene James were standing They asked me was I still driving a water truck and I told them no Gene James asked me was my brother still working over there and I told him yes And he told me if he did go to work tonight that he would be a dead son- of-a-bitch before he got out the gate Those were his exact words and then Gene turned and walked off " He testified that he related this conversation to Murray and the securi- ty personnel that night, but not to his brother, who worked nights, until the next morning, and that after this occurred his brother continued to work but moved his home and stayed for a while at the Holiday Inn Oscar James testified, as a witness for the Union, that on June 24 he and Beall were sitting in the backyard of his house, not at Eddie James' house, that Gene James came into the yard and asked Beall if his brother worked at the mine, that when Beall said his brother did, "Gene told him to ask his brother to quit working out there", that Beall sat there a second without saying anything, and got up and left James denied that anything was said about anyone being killed or hurt, or that Beall was in any way threat- ened He also testified that he and Beall have been together on occasions since June 24 Gene James, who was living in New Mexico at the time of the hearing, also testified, as a witness for the Union, that he was at Oscar's house on June 24, that he met Beall there, that he asked Beall to ask his brother to quit working at Surface Industries, and that Beall did not respond and nothing further was said He denied ever saying that if Beall's brother went to work that night, he would be a "dead son of a bitch " I found Oscar and Gene James more forthright and con- vincing witnesses than Beall, and credit their testimony about what occurred on this occasion I find, therefore, on the basis of the demeanor of the witnesses, the nature of their testimony, and the record as a whole, that Gene James did not threaten Beall that Beall's brother, if he went to work the night of June 24, would be dead before he got out of the gate I find further that the record does not show any suggestion or encouragement of such conduct by Marketti and Rhodes Accordingly, I shall recommend dis- missal of these allegations of the consolidated complaint IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Surface Industries, Inc, set forth in sec- tion III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V THE REMEDY Having found that Surface Industries, Inc, the Respon- dent in Case 16-CA-6006 and 16-CA-6180, has engaged in certain unfair labor practices in violation of Section 8(a)(1), (2), and (5) of the Act, I shall recommend that Surface Industries be ordered to cease and desist therefrom and from in any other manner infringing upon its employ- ees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act I shall also recommend that nothing contained in the recom- mended order shall be construed as requiring Surface In- dustries to revoke any wage increases or other employee benefits previously granted 41 While I have found that Surface Industries initiated, as- sisted, and dominated and interfered with the formation and administration of the Employee Committee, a labor organization, the complaint alleges such conduct only until on or about March 19, and the evidence does not show that the Committee has functioned or has existed since that date I shall therefore not recommend that Surface Indus- tries be ordered to disestablish, or to cease recognition of, the Employee Committee As I have also found that Surface Industries unlawfully refused to bargain with the Union as the exclusive repre- sentative of its employees in an appropriate unit, made uni- lateral changes in wages, hours, and working conditions, and negotiated as to terms and conditions of employment with the Employee Committee, I shall recommend that it be ordered to bargain collectively with the Union, upon request, concerning rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following CONCLUSIONS OF LAW 1 Surface Industries, Inc, the Respondent in Case 16- CA-6006 and Case 16-CA-6180, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 United Mine Workers of America is a labor organiza- tion within the meaning of Section 2(5) of the Act 3 By interrogating employees about their union activi- ties, threatening reprisals including discharge and a shut- down of operations because of such activities, engaging in surveillance of such activities, promising and granting ben- efits to induce employees to abandon such activities, and other conduct interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights, Surface Industries has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By initiating, assisting, dominating, and interfering with the formation and administration of the Employee Committee, a labor organization, Surface Industries has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act 42 N L R B v Exchange Parts Company 375 U S 405 (1964), Yale Rubber Manufacturing Company, 193 NLRB 141 (1971) 5 All the production and maintenance employees of Surface Industries, Inc, at its mine near Dow, Oklahoma, excluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bar- gaining 6 At all times since February 24, 1975, United Mine Workers of America has represented a majority of the em- ployees in the aforesaid appropriate unit within the mean- ing of Section 9(a) of the Act 7 By refusing to bargain collectively with United Mine Workers of America on February 25, 1975, and thereafter, by making unilateral changes in wages, hours, and working conditions, and by negotiating as to terms and conditions of employment with the Employee Committee, Surface In- dustries has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 9 The General Counsel has failed to establish by a pre- ponderance of the evidence that United Mine Workers of America, the Respondent in Case 16-CB-1026, has en- gaged in the conduct alleged in the consolidated complaint to constitute violations of Section 8(b)(1)(A) of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended ORDER 43 The Respondent, Surface Industries, Inc, Dow, Oklaho- ma, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees about their union activities, threatening reprisals including discharge or a shutdown of operations because of such activities, engaging in surveil- lance of such activities, promising and granting employ- ment benefits to induce employees to abandon such activi- ties, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act, except that nothing contained herein shall be construed as requiring Surface Industries, Inc, to revoke any wage increases or other employee bene- fits previously granted (b) Initiating, assisting, or dominating and interfering with the formation and administration of the Employee Committee or any other labor organization (c) Refusing to bargain collectively with United Mine Workers of America as the exclusive collective-bargaining representative of its employees in the unit found appropri- ate, making unilateral changes in wages, hours, and work- ing conditions, or negotiating as to terms and conditions of 43 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes SURFACE INDUSTRIES, INC 175 employment with the Employee Committee or any other company-dominated labor organization 2 Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Upon request, bargain collectively with United Mine Workers of America as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and embody in a signed agreement any under- standing reached The bargaining unit is All the production and maintenance employees of Surface Industries, Inc, at its mine near Dow, Oklaho- ma, excluding all office clerical employees, profession- al employees, guards, and supervisors as defined in the Act (b) Post at its mining operation near Dow, Oklahoma, copies of the attached notice marked "Appendix " as Cop- 44 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals the words in the notice reading Posted by Order ies of said notice, on forms provided by the Regional Di- rector for Region 16, after being duly signed by the Surface Industries, Inc , representative, shall be posted by Surface Industries, Inc, immediately upon receipt thereof, in con- spicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by Surface Industries, Inc , to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the date of this Order, what steps the Respondent, Surface Industries, Inc, has taken to com- ply herewith IT IS FURTHER ORDERED that the consolidated complaint be dismissed insofar as it alleges violations by the Respon- dent, Surface Industries, Inc, in Case 16-CA-6006 or Case 16-CA-6180, or by the Respondent, United Mine Workers of America, in Case 16-CB-1026 not specifically found herein of the National Labor Relations Board shall read ` Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "