Mine Workers District 17 (Dehue Coal)

MINE WORKERS DISTRICT 17 (DEHUE COAL) 715 District 17, United Mine Workers of America, and its Local 5869 and Dehue, Coal Company, and Big Foor Coal Company, Inc. Cases 9-CC- 1215-1, -2, 9-CC-1216-1, -2, 9-CB-5854-1, -2, and 9-CB-5860-1, -2 18 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 16 August 1984 Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondents filed cross-exceptions and a supporting brief. Charging Party Dehue Coal Com- pany also filed 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, and conclusions and to adopt the recommended Order as modified." While agreeing with the judge that the Respond- ents violated Section 8(b)(1)(A) and 8(b)(4)(i)(B) of the Act, 2 we also find merit in two of the General Counsel's exceptions. We find that the judge's fac- tual findings support the conclusion that the Re- spondents, through the activity of their agents at the Dehue facility, not only induced and encour- aged employees of Dehue to engage in a strike in furtherance of the Respondents' labor dispute with Big Foot in violation of Section 8(b)(4)(i)(B), but also threatened, coerced, and restrained Dehue from conducting business in furtherance of the same dispute in violation of Section 8(b)(4)(ii)(B) of the Act.3 We also find that the Respondents, through the activity of their agents at the Dehue facility, blocked work areas at Dehue thereby pre- venting Big Foot employees from entering the Dehue facility to perform assigned tasks and blocked ingress and egress at the Dehue facility in violation of Section 8(b)(1)(A) of the Act.4 ' While adopting the judge as modified below , we correct his inadvert- ent reference to Sec. 8(bX4XiXA), in his first paragraph. The complaint alleges, and the judge found, a violation of Sec. 8(b)(4XiXB). In addition, the heading of sec. A,2, should refer to violations of Sec. 8(6X1), not Sec. 8(aXl). ' In adopting the judge's recommended dismissal of the 8(bX2) allega- tion, Member Hunter agrees with the finding of single employer status, but finds it unnecessary to rely on fn. 3 in the judge's decision. ® Plumbers Local 274 (Stokely- Van Camp), 267 NLRB 1111 (1983). 4 Railway Carmen Local 543 (North American Car), 248 NLRB 285 (1980). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, District 17, United Mine Workers of America, and its Local 5869, their officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraphs 1(c), (d), and (e). "(c) Picketing the premises of Dehue Coal Com- pany so as to physically prevent entry by employ- ees or others with business with the Company or otherwise blocking entry into the premises of that Company. "(d) Threatening, coercing, or restraining Dehue Coal Company to force or require it to cease doing business with Big Foot Coal Company. "(e) 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. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT picket the premises of Big Foot Coal Company so as to physically prevent entry by employees or otherwise block entry into that prem- ises. WE WILL NOT picket the mining premises of Dehue Coal Company so as to physically prevent entry by employees or others with business with the Company or otherwise block entry into that premises. WE WILL NOT picket the premises of Dehue Coal Company, or cause the employees of that company to strike, with an object of forcing and requiring the Dehue Coal Company to cease doing business with Big Foot Coal Company. WE WILL NOT threaten, coerce, or restrain Dehue Coal Company to force or require it to cease doing business with Big Foot Coal Company. 275 NLRB No. 101 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise, of the rights guaranteed them by Section 7 of the ct.- DISTRICT 17, UNITED MINE WORK- ERS OF AMERICA; AND ITS LOCAL 5869 DECISION . STATEMENT OF THE CASE ,THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held on May 16 and 17, 1984, at .Charleston, West Virginia, on complaint of the Gener- al Counsel against District 17, and its Local 5869, of the United Mine Workers of America (Respondents or the Union). The complaint issued on May 4, 1984, upon charges filed by Dehue Coal Company and Big Foot Coal Company, Inc. (the Charging Parties). The-issues to be decided are whether the- Respondents violated. Sec- tions 8(b)(1), 8(b)(2), and 8(b)(4)(i)(A) of the statute. Briefs were filed by all parties. On the entire record, and from my observation of the witnesses, I make the following . FINDINGS OF FACT I. JURISDICTION There are two employers involved in this proceed- ing-, Dehue Coal Company and Big Foot Coal Co., Inc. Dehue Coal Company, a West Virginia corporation, is engaged in the mining, processing, and sale of bitumi- nous coal During the 12-month period preceding issu- ance of the complaint, in the course of its business it shipped, from its West Virginia facility, products, goods, and materials valued in excess of $50,000 directly to points outside the State of West Virginia. I find that Dehue Coal Company is an employer within the mean- ing of the Act. - Big Foot Coal Co. is an integral part of a number of other mining operations, which use different names but are all commonly owned and operated. Together, all of these constitute- a single employer. One of these compa- nies alone, Baron Coal Corporation, which does the pur- chasing for all-of the component parts of the overall op- eration, annually. purchases in excess of $50,000 of nonca- pital equipment from suppliers located outside the State of West Virginia. I find that Big Foot Coal is an employ- er within: the meaning of the Act. See' also Plumbers Local ,460 (L, J. Construction); 236 NLRB 1435 (1978). II. THE LABOR ORGANIZATIONS INVOLVED I find that District 17 and Local 5869 of the United Mine. Workers of America are labor organizations within the meaning of Section 2(5) of the Act: III. THE UNFAIR LABOR PRACTICES A. The Case in Brief Lucky Compton, an individual, is in the business of taking coal out of the ground, what is commonly called mining. He operates from place to place, sometimes working at more than one location at a time. He does not always own the property from which he takes the coal, he at times contracts to take the coal out for the owner of the land. He uses all kinds of names, from one job to another, on occasion even forming a corporation But the business is always of the same kind and it all be- longs to him, insofar as this record shows. In January or February 1984 he decided a certain mine he was operat- ing at a place called Rum Creek (lust a. phrase used by the local people to refer to a known location on the map) did not pay enough, so he made an agreement with a company called Sunbeam Energy to extract coal from the ground for that company at another location, re-' ferred to as Melville. He closed down the mine at Rum Creek and-transferred the. mining equipment and about all the employees working there to the new location. He, also transferred some employees from another mine he was operating,, at a place called Kelly Mountain, to work at the Melville job: It is what happened at Melville, where _the Union demanded recognition as bargaining agent of the employees working there, that gave rise to this proceeding. For some years United Mine Workers of America, through its District 17-and the various locals which con- stitute the District, was the' bargaining agent for Comp- ton's employees at all of his locations, at least all those -which were spoken of during this hearing. The collec- tive-bargaining agreement for all those. places, in effect since 1981, was due to expire in September 1984. It is called the National Bituminous. Coal Wage Agreement. When the union agents learned of the move about to take place, it asked that Compton continue to recognize the Union as the representative of those employees at the new location. Compton said he would do that, but only on condition that the Union waive the "royalties" called for by the contract then in effect. By the word "royal- ties" Compton meant payment for health and welfare benefits as provided for in the agreement. With the con- tract still -having 6 months to go, the Union refused to make that concession. With this, Compton decided to op- erate his new location nonunion. In March the Union called a strike at the new location, and -on April 9 the Company agreed,-in writing, that it would abide by the United Mine Workers Union National Agreement, as it had in the past. The complaint alleges that by picketing for recognition .,-as the exclusive. bargaining agent, -the Union coerced the Company into signing a contract, and therefore violated Section 8(b)(2) of the Act. One of the basic factual con- tentions which underlie this aspect of the case is that what work Compton was having done on the new loca- tion-Melville-was a' separate business from what he did at the other locations, that the two had nothing to do with one another. The National Contract, which the Union insisted was binding upon Compton, always con- tained a union-security clause, and therefore, the argu- ment goes, since the Union did not come forth with proof that it in fact was authorized to represent a majori- ty of the employees, it had no right to bring pressure MINE WORKERS DISTRICT 17 (DEHUE COAL) - upon the Company to compel such membership among its employees (See fn. 3 below.) 'A second allegation of the complaint is that during the picketing of Compton's company, the Union was respon- sible for mass picketing, blocking of entrances-into the mine, and threats of violence, all of which constituted violations of Section 8(b)(1) of the Act. The third and last question raised by the complaint in- volves a work stoppage that occurred at a company called Dehue. Compton's agreement with the owner of- the new mine was to take the coal out of the ground and truck it to the Dehue Company, which processed it for the owner of the coal. No one disputes the. fact Dehue is a separate, secondary employer from the Compton's. There was a strike at Dehue, i.e., all-its mining employ- ees stopped,work together for 10 days until a state court- restraining order was obtained by the General Counsel.. The complaint alleges that the Union caused that strike- against a- neutral employer and thereby violated Section 8(b)(4) of the Act. There, the Union's defense is that all of Dehue's employees acted on their own accord, that they-all simply decided to strike, and that the Union or its agents did nothing to induce the strike. 1. Single employer: alter ego, ' When Compton shut down the mining 'operation. he. was doing at Rum Creek and started the ' new one at Melville, he did no more than move his business from one place to another. The argument the-other-way - that the two mining locations became unrelated commer- cial enterprises, separate and- distinct employers -rests upon no'more than a matter of words; it ignores the sub- stance of things. The mine at Rum Creek was called Peerless Alma 11; later that name was changed to Kay Ann Coal Company. Compton referred to that new name as "just an extra corporation I had set up." The mine at Kelly Mountain was called• Peerless Alma 7 There is another corporation called Baron Coal Compa- ny, also owned by Compton, which does purchasing for all of his mining operations, whatever their names, -in- cluding the new one at Melville. Compton also made up a new name for that mine; he called it Big Foot, even forming another corporation with that name. All -that really distinguishes the old one from the new is that they are; or were, located at different places and that they had different names. There have been many cases before the Board where,a second operation was held to be only, a disguised con- tinuance of the first. Always a number of related factors are considered in deciding whether the second is only an alter ego, or single employer, with the first. Among these are. common ownership, continuous use the same supervisors, the same kind of work, use of the "same equipment, and, most significant of all, 'continuing em-' ployment of the same workmen ' comlilement.-'Fugaiy Continental Corp., 265 NLRB 1301. (1982). If,' when moved to the new location it is still the same kind 'of business, owned - by the same people, ' managed by : the same hierarchy, and 'using essentially the same employ= ees, and if for the earlier location the Union was the es- tablished bargaining. agent with a contract 'in effect,'I think even the General Counsel will agree that' the 717 Union had a right to insist on the Employer honoring its contract, -at least until it expired. -And this is exactly what happened in this case. The Big foot mine is owned by the same person who owns the mines called Peerless Alma• 11 and 7, Lucky. Compton.' He said he once sold the -Peerless Alma 7 mine, but then bought it back, and changed its name.- Compton also owns 90 percent of the corporation called Baron Coal Company, which, to the extent this record shows anything about that company, does the purchasing for all Compton's- mines, whatever their names. What better proof of the first factor to be considered common ownership - can there be? Compton's son Kenney is the day-to-day man in charge of each of these mines. He goes from one to the other, as this one -opens and that one closes, to do regular supervision. Again, the same supervision over the two mines in question is a cold fact: And that it is the same business all the time; at every. location, needs no comment. Finally, the Compa- ny's witnesses' admitted that- the mining equipment being used at the Rum Creek location, called Peerless Alma 11, was moved to the new location to be used there. But the most significant factor in cases of this kind is the continuance of the same work • force. When, on March 26 and 27, the union officers asked Compton to admit in writing that he was bound by the Union's Na- tional Bituminous Coal Agreement,- there were 13 rank-. and-file employees at .the Big Foot mine. Eight of them had. signed dues-checkoff cards on March 26. On' cross- examination, • Supervisor Kenney -Compton, who surely knew the men best, testified about the following eight men who had signed the-'dues-checkoff cards, all of whom he. admitted were his employees at Big Foot at the time.' Cletus Maynard and Robert Steward had come from Peerless Alma 11; Terry Kennedy had worked at both Peerless Alma 11 and ' 7; Anthony Testamen had come from Peerless Alma l l;'James Murray had worked at Peerless Alma 7; Roy Toney and 'Rick Lester had come from Peerless Alma 11; and. Forest New had worked at, both ,Peerless Alma -11 and' 7. Without more this is proof positive that a majority of the employees at the new location-8 out of 13-were simply employees of the same company. who. had been transferred to a new assign ment. In' addition to all this, there is further admis- sion by; the company officials that 'others had also been moved from the' old to the new place. Asked had any employees come from his other locations, Lucky Comp- ton answeied•"'Part of the people I had on several'of my jobs."' Later he -said -that Toney Kelly,-'who went to Big Foot; had worked for him at*botli'Peerless Alma 11 and 7, and that ,James Muney,, who-," could" have- worked at ' Lucky-Compton first testified that "all of the equipment I've got in that mine'is brand new " Latei,'still under oath, he said "I moved all of the equipment out of Rum Creek, when I'started Big Foot ',', From- Comp-ton's son, the superintendent of both mines, came the following Q Now,-did-you ever'make'any statements-to'Mr Ferguson or Mr Vidovich that you were going to move the men and the equip- ment from Peerless Alma No 11 there at Rum Creek over to Sun- beam, West Virginia or Melville, West Virginia, where the current Big Foot mine is'' r A Yes, we moved our,men and our equipment over there, yes, we did 718- DECISIONS OF NATIONAL LABOR RELATIONS BOARD Big Foot, had also been an employee at Peerless Alma 11. On the question of just which employees were trans- ferred, Lucky Compton was a poor witness. Later, from his son, there came more revealing testimony : "There's several people that we don't have checkoff cards on, some of them that came from Rum Creek and some that didn't." He then added that Gerard Compton had come from Peerless Alma 7, Stanley Hendricks from Peerless Alma. 11, and Carl Hobson and Robert Phillips from Peerless Alma 7. In sum, it appears that virtually the entire complement at the Big Foot location were em- ployees of the Compton mines who had been moved, with their equipment, from one mining operation to an- other. - However the concept be phrased-alter ego, single employer,. or successor-Lucky Compton, in what he chose to call Big Foot Coal Corporation, was obligated in law to continue recognizing District 17 and its appro- priate locals at the new location the day the Union asked fort it. There was no National Labor Relations Board charge filed against the Company but, had there been, it would have been a perfect case of a violation of Section - 8(a)(5) of the -Act. - Before starting work at his Big Foot operation, Comp- ton was under a signed contract with United Mine Workers of -America for both of the other two mines of which the witness spoke-Peerless • Alma 11 and 7. On this question of whether -the Union -was the established bargaining agent at his -earlier two mines, ' Compton stands as'a very badly discredited witness. His first state- ment was: "I never signed no contract with No. 11." The next- question was did he 'not turn in dues for the people working at Peerless Alma 11, and he answered: 'They: probably did; I don't' know." Would the owner of a business not know whether his bookkeeper was sending dues to a union? Would any company transmit member- ship dries 'to a union on behalf of its employees if they were' not--covered by 'a collective-bargaining agreement? Or was Lucky Compton saying that while he did not sign the contract, someone else may have done so, and bound him, without his knowing it? His son, who did the actual running of the mines, testifying after the father, said flatly that the Company had signed the union con- tract for both Peerless Alma 11 and 7. The system'is that when a company opens a new mine, at a new location, it signs a one-page ,attachment to 'the National Bituminous. Coal. Wage Agreement; it does not negotiate .a complete new contract with the Union. This is what this Company had been, doing at its other mines, and this is: what the union officers-asked it to do for the Big- Foot mine.2 The main argument- in the General z That the system`is to simply attach a sheet to the main national union agreement ;when another'mine -is-opened'is also `shown'by another in- stance of Lucky Compton's double-talk at the hearing. Q. Have you ever been informed that a contract signed at one lo-, cation can apply to mines at other locations? . THE WITNESS- You're asking me if I know that the same contract can apply from No 7 over to No. 11? Q. By, MR - ARCENEAUX : That's correct, , A. Well, it could have, I-don't know Counsel's brief, in support of this part of the case, is that because the union officers asked Compton to "sign" something; that fact alone is proof that it knew it was not the established bargaining agent for these employees. That view distorts the case, and ignores all the relevant factors so clearly shown of -record, as set out above. What the Union was asking was that the Company admit its statutory and contractual obligation to continue rec- ognizing the Union- and its applicable contract, at the new place of operations. If there be any doubt as to the fact that the Union did represent-the people then at work, and that both Comp- ton and the union agents knew this to be true, the doubt is completely dispelled by what the owner of the Com- pany himself related at the hearing. Compton said that in early February he spoke to Dis- trict 17 Vice President Howard Green on the telephone. Green had called him and Compton called him back. First Compton said he did not remember what they had talked about-an obvious lie. Then he said Green asked him to sign a contract, and that his response was "I asked Howard Green-for an extension of the contract." The witness then added: "The Union had been known to give people six months extension of up to a year contract without paying any royalty on its coal." Compton then explained that by "royalties", he meant the health and welfare payments called for by the contract then in effect.-.". . . for the investment that I had put into the operation, I didn't know if it was going to make it or not I knew 'the contract was coming up in six months anyway. So that's why I tried to negotiate with.him." Green refused to make any change in the existing con- tract. With- this from the General Counsel's principal wit- ness, it is a fact the strike which then ensued was not for recognition, but pure pressure upon the employer to compel him to abide by the terms of the contract then in effect. If, as the General Counsel contends, the Union did not represent a majority of the employees, was the employer trying, in February, to force a contract upon his unwilling 'employees? Under this theory of complaint, when, about 10 days after the strike started, Compton ca- pitulated and asked the Union to sign the extra sheet which acknowledged the effectiveness of the existing contract, did the employer also commit an unfair labor practice? It was a perfectly lawful economic strike that took place'-at the Big Foot mine, -and I shall therefore recommend dismissal of the complaint as to that inci- dent.3 3 There is a second theory advanced by the General Counsel on this aspect of the case which merits no consideration , because it misreads the cited authorities and because it rests upon defective reasoning He had several of his witnesses repeat that when demanding that the Employer admit it was bound by the union contract, the agents did not assert that the Union in fact represented a majority of the employees. If in fact the Union did,not represent a majority, would its claim, merely stated, suffice to prove the fact') If this record contained no proof-as in fact it does- that the Union was the established bargaining agent of the employees in- volved, would the absence of such evidence suffice to prove it did not? Is a void the equal of a positive9 The cases cited in the General Counsel's brief hold that it is' s burden upon the General Counsel to prove affirma- tively that the demanding union did not then represent a majority In Continued MINE WORKERS DISTRICT 17 (DEHUE COAL) 719 2. The 8(a)(1) violations On the question of the Union's responsibility for the mass picketing and obstruction of' entrances that oc- curred at the Big Foot mine location, and for the second- ary picketing and strike that took place at the Dehue Company plant, the answer denies the complaint allega- tion that the officials of the Union were in fact "agents". of Respondents, in the statutory sense. The title of each one of them is conceded. The participants in the afore- said activity were: Danny Wells, auditor for District 17; Emil Canterbury, Danny Ferguson; Dave Vidovich; Freddie Williams, and Clifford Martin, all elected field representatives of District 17; Clarence Evans,. president of Local 5869; and Roy Wisman, Larry; Vizes, and Roy Lenus, all three mine committeemen for Local 5869. The field representatives are all paid agents of the District; they work as assigned organizers; they are responsible for the proper handling of strikes called by the Union; they participate in regular efforts to resolve labor dis- putes with' employees and all strike activities. Danny, Wells, in addition to being the auditor of District 17, is also on the District's executive board. Among his re- sponsibilities is the duty to help in picketing activities; in fact he said he was paid particularly for such activities, when he went to the Dehue plant in March. I find that the individuals named above were all agents of the Union ai the time of these events. Electrical Work-. ers IBEW Local No. 3 (Ericisson Telecommunications), 257 NLRB 1358 (1981). Their authority, as paid officials of the Union, to police the Union's collective-bargaining agreements and to do organizing work, clearly places them as agents. Painters Local 1555 (Alaska Constructors); 241 NLRB 741 (1979).. And finally, the very presence of a number of these officials on the picket lines at both the Big Foot location and the Dehue plant made them par,- t ticipants to the unlawful activity then taking place.' . Broadway Hospital, 244 NLRB 341 (1979). . Two witnesses testified about the kind of picketing they saw at the Big Foot mine on March 27 and 28= Richard Zigmund, the president of the Dehue Company,, and Bill Brown, its mine superintendent. They went to„ the Big Foot location several times because of what was happening simultaneously at the secondary place of busi-, ness, with the hope of resolving the problem without fur- ther trouble. In their testimony they placed a number of, the union agents at -the Big Foot site, as actual partici-'. pants in the picketing and blocking of ,entrances. Of all the agents mentioned, only Canterbury gave 'testimony,, on the same subject, and he did not really contradict what, the General Counsel's witnesses said. All Canter-' bury said was that he did see 15 to 20 men at, a `time picketing an entrance, that some of them•did wear, masks, , Hotel Employees Local 33 (Little Luigi's Italian Foods), 153 NLRB'392:' (1965), the parties "stipulated that the union did not then'represent a majority of the employees " In Bryan Mfg Co, 119 NLRB 502 (1957), the Board said, " the General Counsel's evidence establishes a prtmfi facie case as to the Union's lack of majority " If this reasoning of thef General Counsel is correct, it means every time a company and a union sign a first contract containing a union-security clause, it can issue a com- plaint against the union, and unless the union can come forth. with posi- tive proof that it did represent a majority, the complaint' is sustained based-solely on the fact of the contract I do not so read Board law. and that he did not tell them to stop what they were, doing. He denied seeing' bats in anyone's hands' and,' somewhat- unbelievably, closed with' saying he did not know where the pickets came from.-- - ' ' I therefore credit the following -testimony of Zigmund and Brown. There are two passages for access to'the' Big' Foot mine, one over a bridge and one by a side road off the main highway. Both are also 'used by ' a few local residents. When Zigmund and Brown arrived at the loca- tion early in the morning of March 27, they saw. a' number-of people standing on the bridge approach. Zig- mund thought about 15 and Brown thought about '20: The men were blocking the road to anyone except local'. people who lived there and agents of either of the Com-. panies, Compton's or Dehue's. Among the people so im- peding passage were Farrell, the recording secretary of Local 5869; Evans, its president; Lawson of that local's safety committee; and Wells and Vidovich. Brown said he saw the' men in masks and carrying' sticks: Kenney Compton, the owner's son, said there' were from 50 to 75' pickets there that morning, that all had their -faces cov- ered, and' that most of them carried baseball; bats. There is no question in my mind but that the superintendent' of the'-mine was exaggerating. Moreover, Ldo not credit him against -Zigmund and Brown, because. this witness, by his demeanor, by his repeated evasiveness, and by his, repeated, inconsistencies about-many of .the things he talked-about, made a very poor impression.upon me. That -union agents, in -great number; were. present when this blocking-of . entrance was going on • is not, denied; indeed ,". it is , admitted that they, did nothing to, stop it. I find that by the mass -picketing.of.the Big Foot mine that morning, and by the,blocking of, entrances on the part of the striking men, Respondents District 17 and- its-Local 5869 violated Section 8(b)(1) of,the Act. Zigmund and Brown were back at the Big Foot mine the, next day, both in the morning and in the afternoon:. This. time they saw a number of employees on the, road- way going to the mine, with about eight .trucks parked on the road, • again blocking passage and again letting through only residents or members.of management.,And•- here also present , were, as both men testified,' ,Evans,, Lawson, 'and Vidovich. I find that by blocking ,the en- trance to the mine that day, again in the-presence-of and. with the participation of the union "agents,", the Re- spoiident`violated. Section 8(b)(1) of the Act. Railway. Carmen - Local" 543 '(North _ American Car Corp.)., 248' NLRB ' 285 '(1980): •' 3. Secondaiystrike " That the 'Union; District .17 _ togetherwith its, Local, 5869, called a strike of the Dehue's employees in order t9 stop that „company , from handling Compton'"' "non- union'.'.",coal, is as.clear as day.' Local 5869,also'. represents the Dehue employees.- One union agent, after another ,ran,,, to the Dehue plant'late'on March 26, immediately after learning that Compton' was refusing to ' honor his contract .and chose instead to operate "nonunion:" All the coal that the Big Foot mine produced had to be trucked to Dehue for' processing. The'union"agents, in great -number, were back' at'Dehue's early in the morning 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of March 27. The union agents were back again in a few hours later. The Dehue employees normally arrive before 7 a.m.; some were already there prepared for work. Both those who had already come and the-others, as they arrived, refused to work-no less than about 30 men. There was a complete work stoppage, and it re- mained unbroken for 9 days, until ended by a court order. That the union agents told the Dehue men' to quit work, and told the Dehue management they would not stand by while the secondary employer did business with the primary one, is proved by some of the' things the union witnesses said at the hearing. But the admissions are not even necessary here for a finding of secondary inducement and a violation of Section 8(b)(4) of 'the Act. Why did the union agents go 'to the Dehue plant that day? What was their intent, their purpose? There is a parallel between this case and Shattuck Denn Mining v. NLRB, 362 F.2d 466 (9th Cir. 1966). When an employer fires a man, and there is a question about its motive, you weigh its asserted reason advanced in defense and, if it is found to be false, you infer that the motive was the ille- gal one alleged in the complaint. One union agent after another testified that his reason for going down to the Dehue plant on the morning of March 27 was only to inform those employees that there was a union meeting scheduled to take place that evening. There is uncontra- dicted evidence that the usual way of informing employ- ees about meetings in the UMW is by radio among these mining operations. There is also uncontradicted evidence that ' normally the mere presence at the entrance of a mine of a number of employees standing idle-especially union officers-as was true here, means a picket line! Both sides suffer poor credibility in this case. The Comp- tons were not.telling the truth about the Union's repre- sentative status among the Big Foot employees. But the union officers were also lying with respect to why they ran so -quickly to the Dehue mine on March 26 and 27. It was a poor coverup for the obvious. Brown, the Dehue mine superintendent, and Taylor, one of its foremen, testified they saw six men standing together at the entrance of the Dehue plant about 5 p.m. on March 26, including four whom they recognized as Canterbury, Vidovich, 'Ferguson, and Farrell, all paid agents of the Union. Taylor said that when some trucks- arrived from the Big Foot mine with coal, these men blocked their entrance into the plant. Taylor recalled that Canterbury told him that because Big Foot had re- fused to sign its contract - for that location, ". . . that he had,been to Big Foot Coal Company that day, and that they were not signatory to the contract, and, that he wanted me to stop Big Foot 's trucks : from dumping. He said, 'If you don't, I will."' When the 'first of the trucks arrived, Canterbury, "told the truckdnver to take the truck back, that Compton would understand." When Taylor interjected and told Canterbury his problem was with Big Foot,' not with Dehue, 'Canterbury "turned to the truckdriver and said, 'You are not going to dump the coal.'." By that time the police arrived and things were smoothed over; the coal was dropped in the presence of the police. - Canterbury, called as a_witness, did not deny any of the foregoing testimony by Taylor. Rather, he reinforced the conclusion that the union agents were there to stop the business that was going on. "I told him [the Big Foot driver] that he shouldn't dump it. I said, 'Do you know this is nonunion coal that you're even hauling?"' Fergu- son, who was also present then, said he and the other agents of the Union went down to the Dehue plant in separate cars. His version of what happened when the trucks arrived is very unconvincing. It illustrates much of his testimony about the entire story of the Union's ac- tivity at the Dehue plant. Ferguson testified: The driver of the truck stopped, and there was a few words exchanged from some people because the truck was running loud. There was two guys over here at 'the truck. I was back here talking 50 feet away to a retired miner -from that place and things just started happening, nothing physical or anything, but the truck went over to another part of the area and parked. Later in his testimony came the following from Fergu- son. - ' Q. It did not dump the coal into the bin where the Big Foot trucks normally dump their coal? A. It did not. Q. Do you deny that you saw a pickup truck pull across behind that coal truck as to prevent it from dumping its coal in the regular place? A. I don't deny it. I find that the presence of all those agents of the Union at the entrance to the Dehue plant later in the day on March 26 constituted a regular picket line, intended to prevent the dumping of coal from the primary to the secondary employer and therefore a violation of Section 8(b)(4) of the Act. The next day at 6 a.m. as Zigmund continued to testi- fy, Ferguson appeared again at the entrance to the Dehue preparation plant, just standing in the en- tranceway with three other men. Zigmund saw him waving the arriving Big Foot truck down and talking to the driver. With Ferguson was Martin, another union representative. When Zigmund asked why were they there, they said it was just to inform the employees about a planned-union meeting that evening. The repre- sentatives also told Zigmund then that they were there to tell the employees that Dehue was buying nonunion coal from Big'Foot. When Zigmund told Martin the Big Foot problem was not his, Martin came back with "there was no way that they were going to allow me, to buy nonunion coal in Logan County. Dannie spoke up and said that we might as well face reality, that there was no way that the union was going to let it happen." At this point Martin added that the employees' "were going to have a meeting to determine whether they were going to work or not by what the representatives had told them there when they stopped them, and that the way he saw it, if they allowed Dehue to buy nonunion coal, then ev- erybody would try it." Later that same day, Zigmund saw more agents of the Union standing at the entrance to the plant; there were MINE WORKERS DISTRICT 17 (DEHUE COAL) 721 from 10 to 15 persons there, among them about 6 union agents. When three Big Foot trucks arrived to weigh and deliver coal, the agents stopped them.- One of the pickets hit the door of the first truck, saying: "Scab, you can't run nonunion coal here." That truck went through, but the next two were stopped. A picket threatened the second driver with a stone in his hand. By this time the police arrived again, and order was restored. I fully believe Zigmund's testimony. In conclusionary terms the union witnesses professed innocence. Wells, the District 17 auditor, just said he went to the premises of the secondary employer "to try to find out what ex- actly the problem was that was causing- the work stop- page." It was a most implausible explanation! The only explanation of his presence there that day was to tell the employees about a union meeting. Ferguson said he told the Dehue employees to go to work. How do I reconcile that statement with Canterbury's, that he told the em- ployees not to handle the Big Foot coal? Or with the tes- timony of Vidovich, another union representative who was there: We tried to persuade the drivers not to dump the coal. One driver pulled up and I was standing in the vicinity and the driver just kept going like he was going to try to run over me, and Mr. Zigmund came out. I talked to Mr. Zigmund about the situa- tion, and the next thing I know, the State police ar- rived. They dumped the coal and we went back down the road. - As stated above, not one of the Dehue employees, about 30, worked that day-March 27-the day all those union agents crowded the entrance to the place. They had arrived as usual, intending to work, but decided after arrival to strike. The testimony of Zigmund and Brown, which I credit, plus the admissions of inducement by the union witnesses themselves, leaves no doubt that the Union ordered the strike. I find that by such action the Respondents-District 17 and its Local 5869-violated Section 8(b)(4)(i)(B) of the Act that day. - IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE - The activities of Respondents set forth in section III, above, - occurring in connection with the, operations of Dehue Coal Company and Big Foot Coal Company, 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 ob- structing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1.. By mass picketing the mining premises of Big Foot Coal Company so as to physically prevent entry by em- ployees and by otherwise blocking entry into the-prem- ises, Respondents District 17 and its Local 5869 have violated Section 8(b)(1)(A) of the Act. 2. By picketing the premises of Dehue Coal Company and by causing the employees of that company to strike, with an object of forcing and requiring the Dehue Com- pany to cease doing business with Big Foot Coal Compa- ny, District 17 and its Local 5869 have violated Section 8(b)(4)(i)(B) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ' ORDER The Respondents, District 17, United Mine Workers of America, and its Local -5869, and their officers, agents, and representatives, shall 1. Cease and desist from (a) Picketing the mining premises of Big Foot Co_ al Company to physically, prevent entry by employees or otherwise blocking entry into the premises of that Com- pany. (b) Picketing the premises of Dehue Coal -Company, and causing the employees of that Company to strike, with an object of forcing and requiring the Dehue Com- pany to cease doing business with Big Foot Coal Compa- ny. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at their offices and meeting halls copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including, all places where notices to members' are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondents have taken to comply. In all other respects it is recommended that the com- plaint be, and it is, dismissed. - 4 If no exceptions are filed as provided by Sec 102 46 of the Bo'ard'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 - s 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 S Judgment of the United States Court of Appeals Enforcing an Order of the Nation- d 11 l L b B R l t a a or oar e a ions