United Mine Workers Of America

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Mine Workers of America and L & J Equip- ment Company, Inc. Cases 6-CB-6426 and 6- CB-6507 17 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS _' On 30 November 1984 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief, as well as limited cross-exceptions' and a supporting 'brief. - The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT block- and impede ingress and egress at the mining facility of L & J Equipment Company, Inc. in Masontown, Pennsylvania. WE WILL NOT attempt to inflict and inflict bodily harm on employees as they attempt to enter the Company's facility. - WE WILL. NOT threaten employees and attempt to inflict bodily harm on employees as they leave the Company's facility. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. UNITED MINE WORKERS OF AMER- ICA ORDER The National Labor Relations Board, adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Mine Workers of America, Wash- ington, D.C., its- officers, agents, and representa- tives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. ' We deny the Charging Party's request for cost and attorneys fees; See Heck's Inc, 215 NLRB 765, 767-768 (1974) • 2 The Respondent has excepted to some, of the ,fudge's credibility find- ings The Board's established policy'is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544;(1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined- the, record and, find no basis for reversing the findings 3 We agree with the Respondent that a broad cease-and-desist order is not warranted See Hickmott Foods, 242 NLRB 1357 (1979), Broadway Hospital, 244 NLRB 341 (1979) We shall modify the judge's recommend- ed Order accordingly, and issue a new notice to employees Chairman Dotson agrees with the judge that a broad cease-and-desist order is warranted - . DECISION FRANK H. ITKIN, Administrative Law Judge. Unfair labor practice charges were filed in the above cases on May 7 and August 2, 1984. A consolidated amended complaint issued on August 21, 1984. Hearings were con- ducted in Pittsburgh, Pennsylvania, on September 11 and October 22, 1984. The General Counsel alleges that Re- spondent Union violated Section 8(b)(1)(A) of the Na- tional Labor Relations Act by blocking and impeding in- gress and egress at the Company's mining facility in Ma- sontown, Pennsylvania; by attempting to inflict and in- flicting bodily harm on an employee, Fred Sparks, as he attempted to enter the Company's facility; and by later threatening employees and attempting to inflict bodily harm on employees as they left the Company's facility Respondent Union denies that it has violated the Act as -alleged. On the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT Charging Party Company is an employer engaged in commerce as alleged . The Company is engaged in the surface mining of coal and has a- facility at Masontown, Pennsylvania. Respondent Union is a labor organization as alleged . The Union has maintained a picket line at the Company's Masontown facility since July 1983. The inci- dents resulting in this consolidated complaint occurred during April and July 1984. The pertinent evidence is summarized below. Jack Goisse, 'employed as a salesman for Friend Rotary Bit -Service, testified that his employer does busi- ness with Charging Party Company. On April 26, 1984, Goisse attempted to make his "first call" at the Charging Party Company's facility. He approached "the gate" which he "was instructed to use" during the' "current 275 NLRB No. 70 MINE WORKERS (L & J EQUIPMENT) strike." He observed six or seven persons, "standing in the entranceway to the gate." It was not "possible" to go "through the gate"-"these people were physically blocking [the] entrance." Included in this group of six or seven were Robert Moore and Thomas Samek, organiz- ers for Respondent Union and admittedly its agents during this pertinent time sequence . Also present were Marshall Morris and Robert Chesslo. Moore, ;as Goisse further testified, "stopped [his] truck"; "asked [him] not to cross the picket line"; and "I [Goisse] told him I had to . . this was a customer . . and I have a job to do .... Then, Mr Samek at that time came over and stood by the' truck, and they told me I would not cross the picket line. And • I told them . I've got a job to do, I've got a family I have to take care of . . . . I said, my boss requires that I do my job or I won't have a job. And somebody in the background said, . .. we have families too. . . . And that's when Mr. Morris very abruptly stuck his finger in the window, and his face, and told me that maybe you have a family . we know' where you live and maybe you have a family. . . . Goisse then telephoned his employer and, later, he telephoned Charging Party 'Company. He was told by the Charging Party to "come back over to the gate . . they will have somebody meet [him] there to get. [him] onto the job." Goisse. "approached the gate." Moore again asked him, "not to cross the picket line." Goisse told Moore, "I had to go through the gate, I have a job to do . . ." Moore responded: "[Y]ou do what you have to do, and we'll do what we have to do." Goisse then conferred with Fred Sparks Jr., an employee of the Charging Party, who was "on the other side of the gate." Sparks assured Goisse that he was -"within [his] rights" in attempting to enter. Goisse ultimately entered' the facility. Fred Sparks Jr., a photographer employed by Charg- ing Party Company, explained that his duties are "to- photograph any incidents at the picket line . . .." On,, April 26, "there was a phone call . .. a gentleman. [Goisse] trying to get in the gate . . . couldn't get. access." Sparks drove to the gate According to Sparks, .445 "opened it up and, left." Present ' at the gate were Robert Moore, Tom Samek; Marshall Morris, Bobby Chesslo, David Poling, and Ed Swuager Sparks noted: "They had been on the picket line ever since the strike began." Sparks "got out" of his van and attempted to open the gate. "The picketers . . •. 'began milling around my truck." Samek "was standing right by the driver's side door." Sparks said, "[E]xcuse me, I'd like to get in " Samek responded , "I'm not stopping you." Sparks again asked Samek to "please move."' Samek • said nothing. Sparks "opened the door, and when it touched [Samek's] stomach; he [Samek] said, ah, 'hitting me, huh?" Samek thereupon "struck" Sparks "on the head," "grabbed" his hair and chin, and "began twisting" his head . Sparks "tried to keep" Samek, "from twisting" his head "off." Sparks recalled: Then I began to. feel several blows and kicks about my body and face - and neck from other than Mr. Samek. Sparks denied that he ' struck Samek; however, "as he [Samek] was twisting my head, he put his hands closer to my mouth, and I bit his finger and he let loose:" Sparks was bleeding from the face and mouth. Sparks warned the pickets, "I'm pressing charges." Then, Mr. Chesslo was sitting on the tailgate of a pickup, and he says . . . you started it and . . . it's our word 'against yours, and you have ' no pictures Sparks discovered that his van had been locked, and the keys were "inside." Sparks attempted to "flag". •a power company worker for assistance . At the time, "the picket- ers yelled don't' help that scab if you know what's good for. you." The power company employee indicated that "I can't help you," but "I can tell the` office." Sparks moved back to his van. Then, Mr. Morris says let's finish the job , and Mr. Samek struck me [Sparks] again, and grabbed me on the top of the head . . . twisting my head, and then several more blows and kicks about my body, and they finally broke away . . . ' I observed several picketers, and they were stand- Sparks was subsequently taken by ambulance to the Un- ing in the gate area , and Mr. Goisse drove up.to the iontown hospital , and treated for trauma to the head, lac- gate, and they flagged him over. . Several • of erations on the face, and loss- of hearing in his left ear. them were waving at him and yelling at him- to (See G.C. Exh. 3.) stop. He stopped and there was some' conversation Camille Mikalak, an' employee' of Charging Party for a short time, and Mr.• Morris 'reached'his finger in towards the vehicle, -and' started shaking _ his finger at him . They 'were ' talking,- and •I' couldn't hear what they were saying. 1 • - Goisse asked Sparks, "if he had the legal right .to.come on the property," and Sparks said . "as far as ••F,know Goisse entered the facility through .the gate:? = { : ;•' ' Later that day, as Sparks further testified; Sparks left • Also present were Bobby' Chesslo and Marshall Morris. the Company's facility driving his van. He subsequently Mikalak noted that Samek had been on the picket line, attempted to reenter the facility through the same gate. and. Swuager, Clark. and Chesslo "work for" Charging The "gate• was shut;" although previously. Sparks had -Party Company. Mikalak testified. Company, testified that on July 25, he left work in co- worker Wilbur , Poling' s'tr`uck. Mikalak recalled: [W]e got. right , near the ,bike, shop . , .. and 'Tom Samek .pulled up in front of us with his car and ;stopped..": . 'Then, .Bill Clark -pulled up in his car, and Ed Swuager pulled up in his car. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They started walking towards us . . . I locked my door and started rolling up the window. - Swuager and Clark "came up towards, my side of the truck . . . . They made a lunge towards the truck as I was rolling up the window . . . and [Swuager] got his hand into the window . .. .,he took a swing at me [and] just grazed my nose." -Mikalak "rolled the. window down," and said " "behave yourself.", Apparently, Swuager's ;"elbow caught in the window." Meanwhile, on the other side of the truck, on Poling's side, "they had the door open. on his truck "; Morris, Samek, and Chesslo were "over" on that side"; Morris "grabbed his keys right out of the ignition": Then, Marshall [Morris] put his fist up to Skip's [Poling's] chin; he says, I'm shaking, I'm mad .. . you guys signed a petition up there on the hill . . . if I lose my job someone's going to pay. Ed Swuager come running around from the side of the truck . . . to Skip's side . . . and he was climb- ing in and trying to swing .at me and hit me.,. Oh, he just grazed my hand or something, it wasn't nothing. Eventually, the confrontation "calmed down and then we started talking." Later, "they said, 'there's no sense talking to them' . . . they started walking away . . . and Bill Clark . . . [was] " looking at me [and said] you're mine mother fucker , you're mine." In the process, Pol- ing's keys were not returned to him , and they had to "hot wire the car." Wilbur Poling, also an -employee"of Charging Party Company, similarly related the July 25 incident. His tes- timony (Tr. 99-102) is essentially similar to the above testimony of Mikalak. Tom Samek, an organizer for Respondent Union, testis fied that basically my job is to be down there to oversee that things are going smooth . . . that there's no trouble and just maintain a peaceful picket line. Samek recalled the April 26 incident with Goisse. Samek claimed that no employees were "blocking" Goisse's en- trance-"he stopped on his own." Samek added: [S]everal of the pickets, maybe all of them, walked over and asked him not to cross the picket line.. Samek denied telling Goisse . that "he would not cross the picket line." When asked if "any- other picket made that statement, Samek, responded: "I don't believe so. I didn't hear anything to-that effect." Samek also denied that- Morris, or any other picket, made "any remarks about" the "welfare" "of Goisse's "family." Samek next recalled the.incident involving Sparks on that same day.. Sparks, in the past, had been photograph- ing employees "crossing through the picket line" and made "videos of them talking to us .• .'." Sparks asser- tedly would "make obscene gestures with his fingers as if he were trying-to provoke something, to keep the people [employees crossing the picket line] from being friendly with us." Sparks assertedly would say, inter alia, "[Y]ou guys are nothing but fucking trouble makers-you'll never get a job anywhere again." Then, on April 26, Sparks-pulled up to the gate and "made some remarks about the gates and . . . we'll have to open the gates " Samek assertedly "walked over to the van and looked in," in order "to see if he was transporting employees or . . . dynamite." According to Samek, Well, I was looking in a window; he walked up- behind me . -. . and he pushed me into the door of his van; and said get the fuck out of the way . . . well, after I hit the door, I bounced back. Sparks assertedly "threw the door into me"; "he reached over and grabbed me by the hair"; he "started pulling my head down . . . and he hit me on the back of the head." Samek asked Sparks: "[W]hat the fuck do you think you are doing?" Sparks was "hitting me on the head and hit me in the mouth .. .." Then, Samek "punched [Sparks] in the stomach; he bit me on the finger"; and "I got mad and hit him again." According to Samek, Sparks had hit him 10 times "before" Samek "hit" Sparks. Samek claimed: "I tried everything possible not to fight with him, but it came to the point where I had to defend myself." Sparks was "bleeding." Samek claimed that they did not start "fighting again" after that. Robert Moore, an organizer for Respondent Union, testified that he too was "ordered to the picket line" at the Charging Party's facility and instructed "to maintain order there." Moore claimed that on-April 26, "I tried to get [Goisse] to honor the picket line"; there were no "re- .marks" about his "family"; and no "threats" were made. Moore next recalled the incident involving Sparks, later that same day. Moore generally corroborated Samek's version of this confrontation. According to Moore, Sparks was "getting hostile"-"flipping us the bird when he-would go through the line"-"he was cursing at us and just trying to agitate us." Moore claimed that, on April 26, "Fred Sparks came back from the gate and shoved Tom Samek into the van. He [Sparks] said get the fuck out of the way . . . he unlatched the door . . . grabbed ahold of the post and hit Tom with the door post' "it hit him [Samek] in the face, it was hitting the forehead and the cheek." Sparks "started hitting him in the back of the head." Moore further testified: Tom [Samek] started striking back . . . [Sparks] had hit Tom at least 4 times . . . and at that time Tom did start to defend himself. Moore was asked: "While this was going on, did any of the other pickets say anything?" Moore replied in part: "I was leaning against the side of the pickup truck during the whole altercation. Bob Chesslo was sitting in the back of the truck . . . . Marshall Morns tried to get in between . . . to break it up . . . he just couldn't . . . so he gust backed away . . . . Marshall Morris acknowledged in his testimony that he was "probably" on the picket line on April 26. He as- sertedly asked Goisse "to honor the picket line." He MINE WORKERS (L & J EQUIPMENT) denied various statements and conduct attributed to him. Morris claimed: "I never heard- anyone threaten him." Later that day, he witnessed the incident involving Sparks. He claimed, inter alia, that Sparks "hit Samek with the door" and "there was a scuffle." In addition, Morris recalled the incident on July 25. - He claimed, inter alia, that Swuager "leaned his arm on. the window" and Mikalek "wound the window up on his arm." He denied various conduct and statements attributed to him and fellow pickets. He claimed that Mikalak called Swuager "marbles" during this - episode. Assertedly; Poling "reached for the key"-he was "going to start his truck." Morris "pulled them- out and throwed them on the floor." The reason for this was: "I didn't want him to ... the kid has his arm in the-window." Robert. Chesslo recalled that on April 26, Sparks .,pulled in, got out of his van and walked up to open the gate... . Samek walked over to the van ... just like he was admiring it . . . . Sparks told him to get out of his way and pushed him. Chesslo added: - ... the door hit Samek and ... Sparks reached around the truck [and] grabbed him by-the hair and they started to wrestle like ... . Chesslo also described the incident involving Poling and Mikalak. Chesslo claimed, inter alia, that he did not see Swuager "swing at Mr. Mikalak. Morris "reached in and pulled the keys out of the -truck so Skip, [Poling] wouldn't take off'-Swuager' s "arm -was in the window." Also, Mikalak had "called" Swuager "mar- bles." Elsewhere, Chesslo was asked: "Did Mr. Morris touch Mr. Poling at all9" He testified: I'd say no. He was up to his face, had his finger _ in his face talking to him. I wouldn't say that he really touched him or anything. [He] might have'. .. but I couldn't say for sure. I credit the testimony of Goisse, Sparks; Mikalak, and Poling, as summarized above They impressed me as reli- able and trustworthy witnesses. Their testimony is: in part mutually corroborative. Insofar as the testimony-of Samek, Moore, Morris, and Chesslo conflicts with-the testimony of Goisse, Sparks, Mikalak, and Poling, I am persuaded on this entire record that the testimony of the latter witnesses reflects a more accurate and complete account of the pertinent sequence 'of events. In' particu- lar, I find Goisse's recollection of how he was impeded from crossing the Union's picket line, and attending threats, to be more complete, reliable, and trustworthy than the conflicting version of the union ' witnesses. Like- wise, I credit Sparks' `recitation of his encounters with Samek and the other pickets on that same 6y, -1 do..not believe that Sparks provoked or initiated this confronta- tion with Samek and the other pickets as claimed here. Finally, I credit Mikalak and Poling as trustworthy. Their testimony concerning their related encounter with the union pickets also reflects a more reasonable account of what, in fact, transpired. Discussion 447 Section .7 of the National Labor Relations Act guaran- tees employees "the right to self-organization, to form, loin, or assist labor organizations, to bargain collectively through representatives of their own choosing ..." and "the right to refrain from any or. all such activities :" Section 8(b)(1)(A) of the Act forbids a labor or- ganization or its agents "to restrain or coerce employ- . ees" in the exercise of their Section 7 rights. In determin- ing whether or not a labor organization or - its agents have violated the -proscription of Section 8(b)(1)(A). of the Act, "the test. is whether the alleged offender en- gaged in conduct which tends to restrain or coerce em-. ployees .. .." Cf. Steelworkers Local 1397, 240 NLRB 848, 849 (1979). Further, in determining agency status and responsibility of a labor organization for the acts and statements of another, Section 2(13) of the Act makes it clear 'that "the question of whether or not specific acts performed were actually authorized or subsequently rati- fied shall not be controlling." The credited - evidence' of record, as recited supra, shows that Respondent Union had established a picket line at - the Employer's mining . facility in Masontown, Pennsylvania. In an attempt to prevent employees from crossing that picket line, the Union, by its agents, blocked-and impeded ingress and egress at the facility;, attempted-to inflict and inflicted bodily harm on an em- ployee as he tried to enter the facility; and threatened employees and attempted to inflict bodily harm on em- ployees as they left the facility. Such conduct clearly tends to - impinge on employee Section 7 rights and, therefore, violates. Section 8(b)(1)(A) of the Act..Thus, employee Sparks, without- provocation, , was severely beaten when he attempted, to enter the mining facility. Employee Goisse found his assigned- gate blocked when he attempted to make a,delivery for his employer at the facility. After Goisse indicated to the pickets that he would cross their picket line, he was threatened with harm to his "family:" Employees Mikalak, and Poling, ,upon leaving the'-facility, were similarly 'confronted by pickets who, in like vein, attempted to -inflict bodily harm upon them. Present during this entire scenario of misconduct were union representatives, charged with overseeing picket line activity. These admitted- agents, Samek and Moore, fully participated in, -ratified,' and condoned the misconduct as found above. In -sum, Respondent Union has , violated Section 8(b)(1)(A) of the Act, as alleged. CONCLUSIONS OF LAW AND REMEDY 1. Charging -Party Company is'ah'employer engaged in commerce as alleged: 2. Respondent Union;is' a-1'abor orgaiiizatioii-as alleged. 3. Respondent 'Union; by its agent;,; violated 'Section 8(b)(1)(A) 'of the A_ ct by blocking - and' impeding- ingress and' egress - at''the " Company's' mining facility ' in' Mason- town, Pennsylvania; by -attempting to inflict "and inflict- ing bodily harm on an employee' as he attempted to enter the Company's facility; and by later threatening employ- tees,and attempting to inflict bodily harm on employees as they left the'Company s facility. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The unfair labor practices found above affect com- merce as alleged. To remedy the unfair labor practices found above, Re- spondent Union will be directed to cease and desist from engaging in such conduct, and in any other manner re- straining or-coercing employees of Charging Party Com- pany, in the exercise of their Section 7 rights.' Further, Respondent Union will be directed to post the attached notice and make available additional copies to Charging Party Company and Friend Rotary Bit Service for post- ing, if they wish to do so. On these findings of fact and conclusions of ' law and- on- the entire record, I issue the following recommend- ed2 ORDER The Respondent, 'United Mine Workers of America, Washington, D.C., its officers, agents, and representa- facility; and threatening employees and attempting to in- flict bodily harm on employees as they leave the facility. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. - (c) Post at its offices and meeting places in the Mason- town, Pennsylvania area copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed ; by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. tives, shall 1. Cease and desist from (a) Blocking and impeding ingress and egress, at Charging Party Company's mining facility in -Mason- town, Pennsylvania; attempting to inflict and inflicting bodily harm on employees as they, attempt to enter the i A broad injunctive order is recommended because Respondent Union has been shown, by its conduct found unlawful here , to have a proclivity to engage in such proscribed coercive behavior See, e g , Lake Charles Stevedore, 266 NLRB 484 ( 1983), and cases cited 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all ' objections to them shall be deemed waived for all pur- poses (b) Forward signed copies of the notice to the Region- al Director for Region 6 for posting by Charging Party Company and Friend Rotary Bit Service, if willing, in conspicuous places, including all places where notices to employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "