Mine Workers District 30 (Tch Coal)

MINEWORKERS DISTRICT 30 cI' -H COAL) , 309 District 30, United Mine Workers of America and Local 1834, United Mine Workers of America and TCH Coal Company and Joboner Coal Company and Samoyed Energy Company, Inc. Cases- 9-CC-1200-1, 9-CC-1200-2, 9-CC- 1201-1, 9-CC-1201-2, 9-CB-5676-1, and 9- CB-5676-2 31 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 11 January 1985 Administrative Law Judge Donald R. Holley issued the attached decision. The Respondents, District 30,, United Mine Workers of America (District 30) and Local 1834, United Mine Workers of America (Local 1834), filed exceptions and supporting briefs. The Charging Party, Samo- yed Energy Company, Inc. (Samoyed) filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 as modified, but not to adopt the rec- ommended Order. - The judge found, inter alia, that District 30 and Local 1834 violated Section 8(b)(1)(A) through the conduct and actions of the protesting former Greasy Creek employees, who are also members of Local 1834, by coercing and restraining Samoyed's employees on 19 July 1983 and other dates by blocking ingress to and egress from, the Samoyed mine, and by threatening to bust the heads of Samoyed's employees if Samoyed, failed to hire former Greasy Creek .employees.) The judge fur- ther found that the Respondents violated Section 8(b)(4)(i) and (ii)(B) of the Act by inducing and en- couraging the employees of secondary employers TCH and Joboner to strike. or to refuse to perform any services for their employers and by threatening to picket and by picketing TCH and Joboner, all with the object of fbrcing TCH and Joboner to_ cease doing business with each other and with Samoyed in order to cause Samoyed to sign the UMWA contract and hire the former employees of the Greasy ,Creek Coal, Company. The Respond- i The Respondents have not excepted to the judge's findings that Dis- trict 30 violated Sec. 8(b)(1)(A) of the Act by executing a collective-bar- gaining agreement when it did not represent a majority of Samoyed's em- ployees, and violated Sec 8(b)(2) of the Act by executing a contract with a union-secunty clause when it did not represent a majority of Samoyed's employees. 278 NLRB No. 45 ents have, excepted to the judge's findings in this regard. 1., We find merit to the Respondents' exceptions to the judge's-finding that the Respondents were liable for former Greasy Creek employee Chester Burke's statements on 16 July 1983 threatening to bust the heads of Samoyed's employees. During the hearing the General Counsel and the Charging Par- ties argued that the Respondents should be held liable for Burke's conduct because he was a mine committeeman when Greasy Creek Coal Company abandoned the mine in April 1983. Further, Burke represented himself to be a mine committeeman when he spoke with Samoyed Mine Superintendent Hunter and Samoyed employee Akers and when he signed the 18 July 1983 grievance. The Respond- ents argued that Burke was not their agent and that they are not liable for his conduct because the UMWA contract precludes an employee who is on layoff status from serving as a mine committeeman. The judge concluded that it was unnecessary to re- solve the dispute concerning 'Burke's agency status based on his finding that the Respondents were liable for the picketing and the conduct of the pick- eters on other grounds. However, absent a finding that Burke was the Respondents' agent and, absent any exception to the judge's failure to find Burke to be an agent, on this record we are unable to hold the Respondents liable for Burke's threats be- cause Burke's threats were not made at a time when the former Greasy Creek employees were picketing.2 Accordingly, we reverse the judge's finding and dismiss the allegations that the Re- spondents violated Section 8(b)(1)(A) by threaten- ing to bust heads if Samoyed failed and refused to employ the former Greasy Creek Coal Company employees. 2. We adopt the judge's remaining- unfair labor practice . findings. We agree, for the reasons set forth in the judge's decision, that Respondent Dis- trict 30 engaged in unfair labor practices in viola- tion of Section 8(b)(1)(A) and Section 8(b)(4)(i) and (ii)(B) of the Act. In agreeing with the judge's con- clusion that Local 1834 violated Section 8(b)(1)(A) and Section 8(b)(4)(i) and (ii)(B) of the Act, we rely on the record evidence that Local 1834 Presi- dent Harris and other Local 1834 officers failed themselves to cross the picket lines to report to work at their respective places of employment, thereby signaling the membership that they were to ignore the "back to work" instructions uttered at the union meetings. Thus, we are not affirming the 2 For the reasons stated in the judge 's decision, Chairman Dotson would affirm the judge's finding that the Respondents were liable for Burke's threats and thereby violated Sec 8(b)(1)(A) 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local's liability on the theory that any particular, more effective tactic to cause its protesting mem- bers to return to work was left untried, but rather on the basis that any force the "back to work" di- rectives did carry was belied by the Local officials' failure to return to work themselves after issuing them.3 We further hold Local 1834 liable by reason of its officers' refusal to cross the picket lines on the ground that a union, like an employer, acts through its agents.4 The Local 1834 officers are admitted agents of the Union and their con- duct, therefore, evidenced the Local's endorsement of the protest activities, thereby rendering the Local liable for the protest activities in violation of Section 8(b)(1)(A) and 8(b)(4) of the Act. ORDER The, National Labor Relations Board orders that A. Respondent District 30, United Mine Workers of America, its officers, agents, and representatives, shall 1. Cease and desist from (a) Giving effect to or seeking to enforce the contract entered with Samoyed Energy Company, Inc. on 12 July 1983, which was executed at a time when it did not represent a majority of Samoyed's employees. (b) Seeking to cause Samoyed to discriminate against its employees in violation of Section 8(a)(3) of the Act, by giving effect to or seeking to en- force the union-security clause in the above-de- scribed 12 July 1983 agreement, which requires that Samoyed employees join and remain members of the Union as a condition of employment. (c) Coercing and restraining Samoyed's employ- ees by blocking ingress to and egress from the Samoyed mine site. (d) Inducing and encouraging individuals em- ployed by TCH Coal Company, Joboner Coal Company, or any other person engaged in com- merce, or in an industry affecting commerce, to engage in a strike or refusal to perform any serv- ices, and coercing and restraining TCH Coal Com- pany, Joborler Coal Company, or any other person engaged in commerce or an industry affecting com- merce, where an object thereof is to force or re- quire TCH and,Joboner to cease, doing business with each other and with Samoyed Energy Com- pany, Inc. to cause Samoyed to sign the UMWA contract and to hire the former employees of Greasy Creek Coal Co. , 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. See U.S Steel Corp. v Mine Workers, 598 F 2d 363 (5th Cir 1979). See Indiana & Michigan Electric Go, 273 NLRB 1540 (1985) (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix A."5 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by Re- spondent District 30's authorized representative, 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 Respondent Dis- trict 30 to ensure that the notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director signed copies of the notice sufficient in number for posting by TCH Coal Company, and Jobonet Coal Compa- ny, those companies being willing, at all locations where notices to their employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent District 30 has taken to comply. B. Respondent Local 1834, United Mine Work- ers of America, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Coercing and restraining Samoyed's employ- ees by blocking ingress to and egress from the Samoyed mine site. (b) Inducing and encouraging individuals em- ployed by TCH Coal Company, Joboner Coal Company, or any other person engaged in com- merce, or in an industry affecting commerce, to engage in a strike or refusal to perform, any serv- ices, and coercing and restraining TCH Coal Com- pany, Joboner Coal Company, or 'any other person engaged in commerce or an industry affecting com- merce, where an object thereof is to force or re- quire TCH and Joboner to cease doing business with each other and with Samoyed Energy Com- pany, Inc., to cause Samoyed to sign the UMWA contract and to hire the former employees of Greasy Creek Coal Co. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix B."6 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by Re- spondent Local 1834's authorized representative, shall be posted by Respondent Local 1834 immedi- 5 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 Nation- al 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." 6 See fn. 5, supra MINEWORKERS DISTRICT 30 (TCH COAL) ately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Local 1834 to ensure that the notices are not al- tered, defaced, or covered by any other material. (b) Deliver to the Regional Director signed copies of the notice sufficient in number for posting by TCH Coal Company, and Joboner Coal Compa- ny, those companies being willing, at all locations where notices to their employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Local 1834 has taken to comply. APPENDIX A 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 give effect to or seek to enforce the contract entered into with Samoyed Energy Company, Inc. on 12 July 1983 which was execut- ed at a time when we did not represent a majority of Samoyed's employees. WE WILL NOT seek to cause Samoyed to dis- criminate against its employees in violation of Sec- tion 8(a)(3) of the Act, by giving effect to or seek- ing to enforce the union-security clause in the above-described 12 July 1983 agreement, which re- quires that Samoyed's employees join and remain members of the Union as a condition of employ- ment. WE WILL NOT coerce and restrain Samoyed's employees by blocking ingress to and egress from the Samoyed mine site. WE WILL NOT induce and encourage individuals employed by TCH Coal Company, Joboner Coal Company, or any other person engaged in com- merce or in an industry affecting commerce, to engage in a strike or refusal to perform any serv- ices, and WE WILL NOT coerce and restrain TCH Coal Company, Joboner Coal Company, or any other person engaged in commerce or an industry affecting commerce, where an object thereof is to force or require TCH and Joboner to cease doing business with each other and with Samoyed Energy Company, Inc. to cause Samoyed to sign the United Mine Workers of America contract and 311 to; hire the former employees of Greasy Creek Coal Co. DISTRICT 30, UNITED MINE WORK- ERS OF AMERICA APPENDIX B 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 coerce and restrain Samoyed's employees by blocking ingress to and egress from the Samoyed mine site. WE WILL NOT induce and encourage individuals employed by TCH Coal Company, Joboner Coal Company, or any other person engaged in com- merce or in an industry affecting commerce, to engage in a strike or refusal to perform any serv- ices, and WE WILL NOT coerce and restrain TCH Coal Company, Joboner Coal Company, or any other person engaged in commerce or an industry affecting commerce, where an object thereof is to force or require TCH and Joboner to cease doing business with each other and with Samoyed Energy Company, Inc. to cause Samoyed to sign the United Mine Workers of America contract and to hire the former employees of Greasy Creek Coal Co. LOCAL 1834, UNITED MINE WORK- ERS OF AMERICA James E. Horner, Esq., for the General Counsel. James R. Hampton, Esq. (Hampton and Sholar), of Hazard, Kentucky, for Respondent United Mine Workers of America, District 30. Bernard Pafunda, Esq. (Deskins and Pafunda), of Pike- ville, Kentucky, for Respondent United Mine Workers of America, Local 1834. Forrest H. Roles, Esq., and Barbara L. Krause, Esq. (Smith, Heenan, Althen and Zanolli), of Charleston, West Virginia, for Charging Parties TCH Coal Com- pany and Joboner Coal Company. George J. Oliver, Esq. (Thompson, Mann, and Hutson), and James Pruitt, Esq. (Pruitt and DeBurbon), of Wash- ington, D.C., for Charging Party Samoyed Energy Company, Inc. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. The original charges in Cases 9-CC-1200-1 and 9-CC-1200- 2 were filed by TCH Coal Company (TCH) on July 20, 1983,1 against District 30, United Mine Workers of America (District 30) and Local 1834, United Mine Workers of America (Local 1834), respectively. Thereaf- ter, on July 25, Joboner Coal Company (Joboner) filed the original charges in Cases 9-CC-1201-1 and 9-CC- 1201-2 against District 30 and Local 1834, respectively. Subsequently, on August 31, Samoyed Energy Company, Inc. (Samoyed) filed the original charges in Cases 9-CB- 5676-1 and 9-CB-5676-2 against District 30 and Local 1834, respectively. On January 31, 1984, the Regional Director for Region 9 of the National Labor Relations Board issued an order consolidating cases and consolidat- ed complaint and notice of hearing which alleged, inter alia, that District 30 and Local 1834 had engaged in con- duct which violates Section 8(b)(1)(A) and (2) and Sec- tion 8(b)(4)(i)(ii)(B) of the National Labor Relations Act. The Respondents filed answers denying that they had en- gaged in the unfair labor practices described in the con- solidated complaint. On March 13, 1984, the Regional Director issued an amended complaint to correct minor errors in the original complaint. District 30 and Local 1834 have denied they engaged in the unfair labor prac- tices alleged in the amended consolidated complaint. The case was heard in Pikeville, Kentucky, on April 10, 11, and 12, 1984. All parties appeared and were af- forded full opportunity to participate in the proceeding. Each of the parties filed posthearing briefs which have been carefully considered. On the entire record, and from my observation of the demeanor of the witnesses who appeared to testify, I make the following FINDINGS OF FACT 1. JURISDICTION TCH, a Kentucky corporation, owns and/or controls certain coal rights in Pike County, Kentucky, and oper- ates a coal preparation plant in Millard, Kentucky. During the 12-month period preceding issuance of the original complaint, it sold and shipped from its Millard, Kentucky facility products valued in excess of $50,000 to customers located outside the State of Kentucky. Joboner, a Kentucky corporation, is engaged in the mining and selling of coal, and operates, pursuant to an agreement with TCH, a coal mine on Greasy Creek, Pike County, Kentucky. During the 12-month period preceding issuance of the original complaint, Joboner sold and delivered to TCH, at its preparation plant, coal valued at an amount exceeding $50,000. Samoyed, a Kentucky corporation, is engaged in the mining and selling of coal, and operates, pursuant to an agreement with TCH, a coal mine on Greasy Creek, Pike County, Kentucky. During the period extending from June 14, 1983, to April 10, 1984, Samoyed sold and 1 All dates are 1983 unless otherwise indicated delivered to TCH, at its preparation plant, coal valued at an amount exceeding $50,000. On the uncontested facts set forth above, I find that TCH, Joboner, and Samoyed are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATIONS It is admitted, and I find, that District 30 and Local 1834 are labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts TCH, which operates a coal cleaning and preparation plant at Millard, Kentucky, holds leases to certain coal rights in Pike County, Kentucky. Through contractual agreements with a number of contract miners, it causes certain independent contractors, such as Joboner, to remove coal from the face and deliver it to its Millard preparation plant for X amount per ton. At the beginning of 1983, Greasy Creek Coal Compa- ny owned by Kaminski Kaiser operated a coal mine on the Gardiner Fork of Greasy Creek in Pike County, Kentucky, pursuant to an agreement with TCH, which held the lease to the coal. The contract arrangement be- tween Greasy Creek Coal and TCH was one wherein the latter paid the former a given amount per ton to remove coal from the seam and deliver it to TCH at its Millard, Kentucky preparation plant. Greasy Creek Coal operated the mine under union conditions and was signa- tory to a collective-bargaining contract with the United Mine Workers of America. In April, Greasy Creek Coal abandoned the mine when it became insolvent. Kaiser, the owner, left Pike County, Kentucky, for points un- known. At the time operations ceased, Greasy Creek Coal had about 14 employees. All were members of Local 1834. Chester Burke, one of the employees, was the elected union representative of the employees. His title was that of mine committeeman. When Kaiser abandoned the Greasy Creek mine site some of the machinery and equipment formerly used by Greasy Creek Coal to operate the mine remained. The record reveals that the title to such machinery and equipment, excluding the conveyor belt utilized to remove coal from the face, reverted to a Pikeville, Ken- tucky bank. In late May or early June, TCH and Samoyed Energy Company, Inc. orally agreed that Samoyed would reacti- vate the Greasy Creek mine under a contract arrange- ment substantially like the arrangement TCH previously had with Greasy Creek Coal Company. The principals of Samoyed are William Higginbotham and Clifford Mar- enko. Immediately after the agreement was reached, Samoyed commenced cleanup operations which were necessary to permit reopening of the mine. To accom- plish the necessary preparatory work, Samoyed hired about five employees who reported to the site and com- menced work. None of the employees hired by Samoyed were members of a union. Samoyed did not hire any of MINE WORKERS DISTRICT 30 (TCH-COAL) 313 the 14 individuals who had previously been employed by Greasy Creek Coal Company. During the first week of June, Eddie Ratliff appeared at the- Greasy Creek mine site, identified himself as a field representative of District 30, and asked Higgin- botham and Marenko whether they were going to sign the United Mine Workers contract. The Samoyed princi- pals observed they were just cleaning up the, site at-that time and refrained from giving Ratliff an answer to his inquiry. Approximately 10 days later, Ratliff returned-to the site and asked Samoyed 's superintendent, John Hunter, if the Company intended to sign the United Mine Workers contract. Hunter informed Ratliff he would have to talk to Higginbotham or Marenko. At some point during the month of June, Chester Burke, the Greasy Creek Coal Company mine commit- teeman, appeared at the mine site to seek work. Woody Akers, Samoyed's- outside man, told Burke he did not know when Samoyed would be hiring. On, June 14 TCH and Samoyed entered a written agreement which defined their relationship with respect to the Greasy Creek mine. Insofar -as is relevant, the agreement provided that Samoyed would, as an inde- pendent contractor , remove coal from the seam and de- liver it to TCH's Millard- preparation plant for a stated amount per ton. The agreement further provided that Samoyed would hire its own employees and that its prin- cipals would control its labor relations.2 - In late June or early July, Eddie Ratliff contacted Scott Kiscaden, the president of TCH, and asked wheth- er Kiscaden was going to require Samoyed to sign the UMW contract. Kiscaden informed Ratliff that decision was one which the principals of Samoyed would have to make. On Saturday, July 9, mine committeeman Chester Burke, accompanied by Jerry Jones,3 appeared at the mine site during the morning hours and conversed with Hunter, the superintendent, and Akers, the outside man. After telling Hunter that Ratliff had told him. Samoyed had refused to sign, the UMW contract, Burke informed Hunter that there would be some heads busted if Samo- yed did not put the panel (the former Greasy Creek Coal Company employees) back to work there. Burke went on to say that there was going to be a lot . of trouble there on Monday-that 5`there's going to be a picket line up here and everything in this hollow will be stopped from work.', Burke then informed Hunter that the con- templated action could be stopped if Hunter would con- tact Higginbotham and Marenko and they got back to him by 2 p.m.4 Apparently, the principals of Samoyed did not contact Burke subsequent to his Saturday visit to the mine site. Consequently, on Monday morning, July 11, approxi- mately 20 protesters appeared at the site, blocked the 2-See R District Exh 1. The record reveals that Samoyed moved its own machinery and equipment to the Greasy Creek mine site to permit performance of the contract It did not obtain any of the machinery or equipment previously owned by Greasy Creek Coal Company 8 Jones, a former employee of Greasy Creek Coal Company, was a safety committeeman when the mine was abandoned in April 4 Burke denied that he uttered any threats at any time. I credit the tes- timony of Akers and Hunter which reveals Burke uttered numerous threats :t`ad Teiig to =the- mine with crib blocks,5 and de- meaned Samoyed employees by calling them "scabs." Higginbotham testified that when he arrived at the site that morning he noted that the telephone line to the mine had been cut. Chester Burke was one of the protesters who appeared at the site that morning. 'Higginbotham credibly testified, on observing what was occurring at the mine site on the morning of July 11, he and Marenko went to the offices of District 30, which were located across the street from Samoyed's office, to consult with District 30 officials in an attempt to remedy the situation. According to Higginbotham, Ernie Justice, the District president, Cornelious Owens, the District vice president, and Eddie Ratliff were present when he and Marenko arrived.6 Higginbotham testified that after introducing Marenko and himself to the union officials, he informed them they were there to talk about the problem up on Greasy Creek; that they had a mine there and had pickets . He claimed he then -stated their men were cleaning up on the outside and they had not mined any coal and were seeking help from Justice. According to Higginbotham, Justice then in- formed them they were running a scab operation and the work should be done with union employees; that they -would continue to have- problems until they signed the United Mine Workers contract; that when they signed the contract, their problem would go away; that they would have to take back the employees of Greasy Creek or they would not run any coal ; and that if they did not sign the contract, -they definitely would not run any coal, and they would always have a problem . After hearing Justice's remarks, Higginbotham and Marenko left Dis- trict 30's offices. The record reveals that Chester Burke and the former Greasy Creek Coal Company employees expanded their protest activities on the morning of July 12 by placing protesters at locations which would assure that the em- ployees ° of other employers were enmeshed in their dis- pute with Samoyed . Thus the record reveals that in addi- tion to protesting once again at the Samoyed mine site, protesters were placed at the so-called low water bridge which had to be crossed by truckdrivers delivering coal to the TCH preparation plant, by the employees of TCH, and. by the employees of Hopkins Creek Coal - Company. Additional protesters were placed at the point where Greasy Creek and Brown Fork intersect on the road leading to Joboner Coal Company. 7 It is undisputed that the hourly employees employed by Hopkins Creek, Joboner, and TCH are all members of Local 1834 and that they all honored the above-described protest lines and refused to report for work at their respective places of employment on July 12. s Crib blocks are pieces of wood approximately 6-by-6 inches and 36 inches long 6 Owens claims that Justice was not in the office on July 11 and that he talked to Higginbotham and Marenko that day Justice testified in a 10(k) proceeding he first met the Samoyed principals on July 11 , but sup- ported Owen's testimony in the instant proceeding Owens and Justice were not impressive witnesses I credit Higginbotham's version of the July 11 meeting r See G C Exh 3 which accurately reveals the protest locations 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Curt Harris, the president of Local 1834, who is em- ployed by Hopkins Creek Coal Company, reported for work on July 12 before the protesters appeared at the low water bridge. Harris indicated during his testimony that when he left the Hopkins mine on the morning of July 12 to pick up supplies he encountered protesters at the low water bridge and ascertained that they were pro- testing because Samoyed would not hire them. Jess Jus- tice, the superintendent for Hopkins Coal, credibly testi- fied, when Harris returned from a supply run on July 12, the employee told him that there were some people from the old Greasy Creek mine at the mouth of the creek and they were stopping TCH people from going to work. Justice claims after appraising him of the situation, Harris requested and was granted permission to go to the District to see if he could settle things." Superintendent Justice testified, at 1:30 p.m. on July 12, Harris called him to say the problem had been solved as Samoyed had signed the contract and there would be a union meeting at 5 p.m. Justice added that Harris told him the second shift could go ahead to work because there would be no picket line stopping them. Higginbotham credibly testified that on the morning of July 12, he and Marenko once again went to District 30's office to protest the presence of pickets at the Samoyed mine site. Higginbotham testified that Justice, in the pres- ence of Owens and Ratliff, told them just about the same thing he had told them the day before. Namely, that they were doing scab operations; that if they did not put the Greasy Creek employees in the jobs they were doing with Samoyed employees, they would not be mining any coal; that their problem was not going to go away; and that if they wanted their problem to go away, they could sign the contract.9 On being advised of their options, Higginbotham and Marenko left District 30's offices without signing the contract. The record reveals that after the Samoyed principals left District 30's offices during the late morning hours on July 12, TCH's president, Kiscaden, telephoned Justice to complain because the protesters had idled the TCH preparation plant. Kiscaden credibly testified, after tell- ing Justice that he understood his independent contractor (Samoyed) was coming to the District 30 office to talk to Justice, Justice told him he would be glad to talk to them and, if they signed a contract, everything would be fine. During the early afternoon hours on July 12, Marenko returned to District 30's offices and signed the UMW contract. It is undisputed that neither of the Respondents had been authorized by Samoyed's five employees to 8 Harris claimed he went straight home after being excused from work on July 12 He was a most reluctant witness and refused to give the names of the protesters he saw at the low water bridge who were admit- tedly members of Local 1834 I do not credit his claim that he went home instead of going to District 30's offices on July 12 9 While Justice admitted he conversed with the Samoyed principals on July 12, he denied he sought to cause them to sign the contract by threat- ening them I credit Higgenbotham's testimony where it conflicts with that given by Justice I find that Justice credibly indicated that Marenko voiced objection to hiring the Greasy panel because those employees were not trained in the use of a continuous miner, and Justice sought to overcome the objection by indicating that recognition of the Greasy panel would not obligate Samoyed to hire unqualified employees represent them in collective bargaining at the time the contract was executed. District 30 President Justice, who was admittedly unaware of any business relationship be- tween Greasy Coal Company and Samoyed, sought to justify the District's execution of the contract by claim- ing he considered' Samoyed to be a successor employer. As noted supra, Curt Harris, Local 1834's president, notified Jess Justice, the Hopkins Creek superintendent, at approximately 1:30 p.m. on July 12, that Samoyed Energy had signed the UMW contract. Apparently, the protesters also learned that Samoyed had signed the con- tract, because the record reveals they ceased to protest during the afternoon of July 12. At 5 p.m. on July 12, Local 1834 held a special call meeting at its normal meeting place, the TCH bathhouse. Harris testified that members employed by TCH, Jo- boner, Hopkins Creek, and the former employees of Greasy Creek Coal attended the meeting. Harris indicat- ed he informed the members during the meeting that Samoyed had signed the UMW contract and he ordered the members to go back to work. According to Harris, some of the members present told him "to go get f-ed." During the period extending from the early afternoon of July 12, Tuesday, through July 17, there was no pro- testing, and Local 1834s members, excluding the former Greasy Creek employees, worked. On Saturday, July 16, Chester Burke and James Bul- lard, Kaiser's son-in-law, who was formerly employed by Greasy Creek Coal, went to the Samoyed mine site to deliver union-checkoff forms and contract booklets. While there, Burke admittedly asked Akers and Hunter whether Samoyed was going to 'hire the former Greasy Creek Coal employees. When Hunter indicated they were thinking about it, Burke stated "if they didn't hire the panel back, there would be some heads busted."10 Jess Justice, Hopkins Creek's superintendent, testified that on July 16, Keetis (Pete) Prater, Local 1834's finan- cial secretary, informed him that there was still trouble over the Samoyed situation and he should contact Randy May, TCH's general manager, or Scott Kiscaden, and tell them of the situation so something could be done by Monday, July 18. The record ,reveals that Justice relayed the information to Kiscaden, and Kiscaden thereafter spoke with Local 1834 President Curt Harris and ar- ranged a meeting at the Samoyed mine site between Dis- trict 30, the former Greasy Creek Coal employees, the Samoyed principals, and himself for Monday morning, July 18, at 7 a.m. On the morning of July 18, a large number of individ- uals, estimated by witness Akers to be 70 or 80 in number, appeared at the Samoyed mine site. When Akers sought to report for work, Chester Burke informed him there were a bunch of hotheads in the group and if he attempted to drive through he might get his windshield broken. i t Akers did not attempt to pass the protesters to go to ' work. At approximately 7 a.m., Kiscaden joined Marenko and Higginbotham, at the site. The three indi- viduals approached Burke and District 30 representative 10 Burke denied he uttered the threat. I credit Hunter and Akers who were, by far, more impressive witnesses I' Burke denied making the comments I credit Akers MINE WORKERS DISTRICT 30 (TCH COAL) 315 Ratliff to discuss the situation. Burke was attired iii his work clothes and had his dinner bucket with him. Burke stated that he wanted to go to work and wanted his backpay. Apparently, Higginbotham' or Marenko indicat- ed the former Greasy Creek Coal Company employees were not capable of working with continuous miners and Ratliff produced a contract book and, utilizing it, argued that members of the Greasy Creek panel had, a right to update their skills and'should be employed. Kiscaden re- called that Ratliff stated the men would be put back to work or there would continue-to be problems; that he was there to represent the folks and until they were put back to work there would be problems.12 Kiscaden in- terceded and suggested the contract contained a griev- ance procedure and the problem should be handled in that manner. Ratliff and the Samoyed Energy officials agreed and Ratliff left to go the District 30 office to obtain a grievance form. He thereafter obtained a griev- ance form and, when the grievance was prepared, Ches- ter Burke signed the form in his capacity of mine com- mitteeman.13 The Samoyed Energy principals and Ratliff agreed the grievance should be submitted for arbitration immediately. 14 After the grievance had been filed, Burke and Bullard concluded it was not going to help them, and they decid- ed to reinstitute their protest. As a consequence, protest- ers appeared once again on the morning of July 19 at the low water bridge, at the entrance to Joboner, and at the Samoyed mine site. Higginbotham testified July 19 was probably the worst and most vicious day they had. He indicated that while he was at the mine site for approximately A45 minutes that morning, he observed that crib blocks had been placed in the road again, and he observed protesters with rocks, sticks, and clubs in their hands. Frank Price, a-Samoyed employee, testified the pickets began throwing rocks at Samoyed employees about noon. Another Samoyed em- ployee, Darrell McMillion, testified one of the rocks that was thrown by protesters damaged a car belonging to Jeff Harris, and employee Kenny Vaughn was almost hit by another rock. McMillion further testified that uniden- tified protesters demanded that the Samoyed employees shut down a generator which was in operation at the site. Uncontroverted evidence reveals the, Kentucky State police were summoned to enable Samoyed's em- ployees to leave the mine site on the evening of July 19. The record reveals that mine committeeman Chester Burke engaged in protesting at the low water bridge from July 19 through the end of that week.-Randy May, TCH's general manager, testified he conversed with Burke on July 20 and Burke told him he felt the former 12 Ratliff was not called as a witness to refute Kiscaden's version of the incident. 1s G C. Exh 4. The body of the grievance states- We the panel members at the mine are grieved because the co has refused to honor the panel after agreeing to do so. The co has re- fused to allow us to update our panel form. We ask that co pay us for all work performed by new hire and foremen and' that we be al- lowed to update our panel forms and, that we be recalled to work. 14 Samoyed Energy indicated on the grievance form that it had not violated the UMW contract and Hunter signed it The grievance was never submitted to arbitration, allegedly because Samoyed refused to sign the back page of the grievance form reiiipliiees didinot have a chance with,the griev- ance and he was going to stay there until he got a job. May testified ' without contradiction that Burke told truckdrivers `attempting to deliver coal to the TCH prep- aration plant that they were not to come back until the issue was settled, and Burke told him that, if necessary, he would shut down other operations in Pike County. It is 'undisputed that protesting at the Samoyed mine site and at the low water bridge continued through July 26, and that the employees of TCH and Joboner, including the officers of Local 1834, refused to work for their em- ployers during the entire period. t s Higgenbotham testified he and Mare'nko went to Dis- tract 30's office to seek assistance on July 19 when the protest was reinstituted. Owens testified that he, Ratliff, and Local 1834 President Harris went to, the Samoyed mine `site that day where they allegedly told the protest- ers the dispute should be handled through the contrac- tual grievance procedure rather than by picketing. As in- dicated, supra,'the protesting continued. .The record reveals that Local 1834 held a second spe- cial, call meeting on July 20. District 30 President Justice testified that he informed the members who attended that a grievance had' been filed, and the members should return to work. It is undisputed that protesting continued unabated. At some point prior to July 30, a state court issued a temporary, restraining order with respect to the protest- ing and a section 303 damage action was instituted by one of the employers. Thereafter, on July 30, Local 1834 held a special call meeting. Justice indicated that when he informed those attending of the legal actions, and one of the former. Greasy Creek employees indicated he felt the protesting should stop, protesting ceased. B. Analysis and Conclusions 1. The 8(b)(1)(A) and (2) violations The General Counsel contends that District 30 and Local 1834 violated Section 8(b)(1)(A) by: (1) Becoming parties to a collective-bargaining agreement with Samo- yed at a time when they did not represent any of Samo- yed's employees; and (2) coercing and restraining Samo- yed's employees during the period extending from July 11, 1983, until July 29, 1983, by blocking ingress and egress to the Samoyed mine, threatening employees with physical harm, throwing rocks at employees, cutting tele- phone lines to the Samoyed mine, and damaging the ve- hicles owned by Samoyed employees. He contends the Respondents violated Section 8(b)(2) by becoming par- ties to a collective-bargaining agreement containing a union-security clause at a time when they did not repre- sent a majority of Samoyed's employees., Throughout the dispute and the hearing, the Respond- ents have taken,the position that the mine located on the Gardiner Fork of Greasy Creek is a "union" mine. While admitting that they were unaware of a business relation- ship between the Greasy Creek Coal Company and Sam- 15 At some point, the wives of the former Greasy Greek employees conducted the picketing and/or protesting. I ' ' 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oyed, the Respondents claim Samoyed was obligated, before and after signing the UMW contract on July 12, 1983, to recognize the Greasy Creek panel and to oper- ate the mine under discussion under union conditions be- cause they are a successor employer within the meaning of the UMW contract. They contend they did not vio- late Section 8(b)(1)(A) and (2) by executing the July 12, 1983 agreement with Samoyed because they represented the 14 former Greasy Creek employees at that time, and those employees had employment rights at the mine. The Respondents contend they cannot be held to be liable for the actions of the protesters because the General Counsel has failed to show that the protesters were agents of Dis- trict 30 or Local 1834. a. Contract issues The Respondents do not dispute the General Counsel's claim that Garment Workers (Bernhard-Altmann Corp.) V. NLRB, 366 U.S. 731 (1961), indicates that a union vio- lates Section 8(b)(1)(A) of the Act if it executes a collec- tive-bargaining agreement with an employer at a time when it does not represent a majority of the employer's employees, and it does not contest the General Counsel's claim that the Board's decision in McKesson Drug Co., 257 NLRB 468 (1981), indicates that a union violates Section 8(b)(2) of the Act when it executes a contract with an employer, which contains a union-security clause requiring membership in a union as a condition of em- ployment, at a time when it does not enjoy majority status among the employer's employees. Instead, it claims the above-described cases are inapplicable here because Samoyed is the successor of Greasy Creek Coal Compa- ny. The Board has held that in determining successorship the keystone is whether there is substantial continuity of the employing industry. Saks Fifth Avenue, 247 NLRB 1047, 1050 (1980). As noted by counsel in their briefs, the Board looks to several factors in determining wheth- er there is sufficient continuity of the employing industry to warrant a finding of successorship. These factors in- clude whether there is substantial continuity in oper- ations, location, work force, working conditions, supervi- sion, machinery, equipment, methods of production, product, and services. Miami Industrial Trucks, 221 NLRB 1223, 1224 (1975 ). Georgetown Stainless Mfg. Corp., 198 NLRB 234 (1972). The record in the instant case reveals that although Samoyed reactivated a coal mine previously operated by Greasy Creek Coal Company in late June 1983, it had no financial dealings with the predecessor company, hired none of its employees, utilized a different process em- ploying its own machinery and equipment to extract coal, and utilized entirely different supervision to operate the mine. It is clear, and I find, that Samoyed is not the successor of Greasy Creek Coal Company. In sum, the record reveals that District 30 entered a contractual relationship with Samoyed at a time when it represented none of Samoyed's employees. By engaging in such conduct, I find that District 30 violated Section 8(b)(1)(A) of the Act as alleged. Because the contract contains a union-security clause requiring that Samoyed's employees join and remain members of the Union as a condition of employment, it is clear, and I find, that by executing the contract District 30 also violated Section 8(b)(2) of the Act as alleged. Noting that Local 1834 is not a party to the contract executed on July 12, 1983, I find that the General Counsel has failed to prove that Local 1834 violated Section 8(b)(l)(A) and (2) of the Act by becoming signatory to a contract with Samoyed. b. Restraint and coercion of Samoyed's employees Paragraph 9 of the amended complaint alleges that the Respondent, through the acts and conduct of Burke and others, violated Section 8(b)(1)(A) by: (1) Threatening on July 16, 1983, to inflict damage on Samoyed's proper- ty and employees; and (2) blocking the ingress to and egress from Samoyed's premises on July 19, 1983. I have found, supra, that Burke informed Samoyed employee Akers and its superintendent Hunter on July 16 that if Samoyed failed to hire the former Greasy Creek employees there would be some heads busted. I have also found, supra, that on July 19 and on other dates the protesters positioned on the road leading to the Samoyed mine site placed crib blocks in the road thereby blocking it. The General Counsel contends the Respond- ents should be held responsible for the described conduct of Burke and the former Greasy Creek employees. The Board has long held that the test for establishing responsibility for acts on the picket line is that of common law agency. Thus, in Sunset Line & Twine Co., 79 NLRB 1487, 1509 (1948), the Board stated: A principal may be responsible for the act of his agent within the scope of the agent's general au- thority, or the "scope of his employment" if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifi- cally forbidden the act in question. It is enough if the principal actually empowered the agent to rep- resent him in the general area within which the agent acted. In the instant case, the General Counsel was unable to offer direct evidence to establish that the Respondents called the strike which commenced on July 11. His fail- ure to offer such evidence is not determinative of the question of their responsibility, however. As stated by the Board in Mine Workers, 83 NLRB 1916, 1918 (1949): A strike call may be given in forthright fashion, or informally in a manner which is understood by the initiated. A strike may be as effectively signalled by a simple statement that a employer has refused to sign a collective bargaining contract when the union policy is "No contract-no work," as by a direct strike call from the union leadership to the union members on the failure to reach agreement on a new contract. Moreover, as observed by the General Counsel and the Charging Parties in their briefs, unions can ratify or con- done the actions of picketing members and thereby become responsible for their acts and conduct by failing to take appropriate steps to curb the unlawful acts of MINE WORKERS DISTR1t T 30 (TCH COAL) 317 their members or by participating, as an entity, in the protest. See U.S. Steel Corp. Y. Mine Workers, 598 F.2d 363 (5th Cir. 1979). Realistic consideration of the facts in the case sub judice causes me to suspect that District 30 instigated the protest action which commenced on July 11, 1983. As revealed, supra, Ratliff, the District - 30 representative who serviced the Greasy Creek mine when it was oper- ated by Kaminiski, visited the mine on several occasions during the month of June in an attempt to cause the prin- cipals of Samoyed to sign the UMW contract. When the Samoyed principals remained noncommittal, Ratliff con- tacted their lessor, Kiscaden of TCH, and inquired whether TCH was going to require Samoyed to sign the contract, and Kiscaden indicated the decision was one the Samoyed principals would have to make. During the same general period, Burke and former Greasy Creek employees were visiting the mine to seek employment. Burke indicated during his testimony that he and the other former Greasy Creek employees decided to protest to obtain jobs and their union benefits when Ratliff told him that Samoyed was not going to sign a- contract. Noting that the record reveals that District 30 has stead- fastly maintained that Samoyed was obligated to recog- nize the Greasy Creek panel and operate the mine under union conditions, I infer that Ratliff was fully aware, when he informed Burke that Samoyed was not going to sign the contract, that his action would cause Burke and the former Greasy Creek employees to picket to obtain their objective. Although the facts summarized above might well justi- fy a finding that District 30 instigated the protest which began on July 11, the record evidence which I credit clearly reveals that District 30 President Justice ratified and condoned -the protest actions of the former Greasy Creek employees on July 11. By telling Higginbotham and Marenko on that date that they would have to take back the former Greasy Creek employees and sign the UMW contract or their problems would not go away, Justice clearly placed District 30 in a position which ren- dered it liable for the protest actions of the former Greasy Creek employees. Although the record fails to reveal that Local 1834 ex pressly ratified and condoned the protest actions of the former Greasy Creek employees, the facts elicited during the hearing compel a conclusion that Local 1834 must also be found to be liable for the actions of the protest- ers. Thus, as indicated, supra, the record reveals that: On July 12, and during the 9-day period extending from July 19 through July 27, the hourly employees of TCH, Jo- boner, and Hopkins Creek, all members of Local 1834, honored the picket lines of the protesters despite the fact that their employers were not involved in the dispute; that the only action taken by Local 1834 was the con- duct of two special-call meetings during which Local 1834; president Harris and District president Justice, on July 20, instructed the members to return to work; and the admitted fact that Harris and other officers of Local 1834 failed themselves to cross the picket line to report for work at their respective places of employment there- by signaling the membership that they were to ignore the "back to work" instructions uttered at the meetings. In the circumstances of the instant case, I find that the ac- tions taken by Local 1834 were predictably inadequate to cause' its striking members to return to -work" while pro- testing continued. This, coupled with the fact that the Local participated in the strike as an entity, causes me to find that Local 1834, as=well as District 30, is liable for the actions of the protesting former Greasy Creek em- ployees, who are also members of Local 1834. See Mine Workers, supra; U.S. Steel Corp v. Mine Workers, supra, and Turnkey Constructors v. Cement Masons Local 685, 580 F.2d.798 (5th Cir. 1978).16 , For the reasons stated, I find that the Respondents vio- lated Section 8(b)(1)(A) on July,16, 1983, by threatening to bust some heads if the former Greasy Creek employ- ees were not hired by Samoyed, and by blocking ingress and egress to the Samoyed premises on July 19, 1983. 2. The secondary picketing Paragraph 10 of the amended complaint alleges that the Respondent violated Section 8(b)(4)(i)(ii)(B) of the Act by: (1) Picketing the facilities of TCH and Joboner since July 12, 1983; and (2) threatening about July 18, 1983, to picket TCH, Joboner, and unnamed employers in Pike County, Kentucky. Uncontroverted evidence in the record reveals that the former Greasy Creek panel members protested at the low water bridge leading to the TCH preparation facility and on the road leading to Joboner on July 12 and from July 18 through July 26 or 27, 1983. It is undisputed that the protesters originally encouraged the employees of TCH and Joboner to honor their picket lines by indicat- ing they were protesting to cause Samoyed to sign the UMW contract and hire the former Greasy Creek em- ployees, and, after the contract was signed on July 12, they requested that their fellow union members honor their picket lines because Samoyed had not hired them. The record further reveals that Burke informed TCH general manager May on May 19 that the former Greasy Creek employees intended to picket at the low, water bridge until Samoyed agreed to hire them, and he told May, if necessary, they would shut down other named employers in Pike County. Section 8(b)(4) of the Act makes it an unfair labor practice for a union (i) to engage in, or to induce or encourage any individual ... to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on 16 With respect to Chester Burke, the General Counsel and the Charg- ing Parties claim the Respondents should be held to be liable for Bucke's conduct because he was a none committeeman when Greasy Creek Coal Company abandoned the mine in April 1983, and he represented himself to be a mine committeeman when he spoke with Akers and Hunter and when he, at Ratliff 's request, signed the grievance filed on July 18, 1983. The Respondents argue that while actively employed mine committee- men are agents of the Union, art. XXIII, sec. (a) of the UMW contract specifically provides that mine committeemen "should be eligible to serve as a committee member only so long as he continues to be an Employee of said mine who is not in layoff," and as Burke was in layoff status from April 1993 forward, I cannot find the Respondents are liable for his con- duct. Having found the Respondents are liable for the picketing and con- duct of the pickets on other grounds, I see no need to resolve the issue 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person . . . where in either case an object thereof is: during the period described above, the Respondents vio- lated Section 8(b)(4)(i)(ii)(B) of the Act as alleged. Iron Workers Local 1 (Colt Construction), 245 NLRB 132 (1979), and cases cited therein. (B) forcing or requiring any person to cease using, selling, handling, transporting, or other- wise dealing in the product of any other produc- er, processor, or manufacturer, or to cease doing business with any other person ... Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any . . . primary picketing. In Teamsters Local 126 (Ready Mixed Concrete), 200 NLRB 253, 254 fn. 6 (1972), the Board discussed the meaning of the terms "inducement or encouragement of individuals" and "coercion or restraint of persons" stat- ing: Picketing constitutes "inducement or encourage- ment" of individuals within the meaning of Section 8(b)(4)(i)(B) and "coercion or restraint" of persons within the meaning of Section 8(b)(4)(ii)(B), N.L.R.B. v. International Hod Carriers, Local 1140 [Economy Farms], 285 F.2d 397 (C.A. 8), cert. denied 366 U.S. 903; N.L.R.B. v. Plumbers Union of Nassau County, Local 457 [Bomat Plumbing & Heat- ing], 299 F.2d 497 (C.A. 2). It is likewise well settled that a threat of picketing or a work stoppage violates Section 8(b)(4)(ii)(B). N.L.R.B. v. Highway Truck Drivers and Helpers, Local No. 107 [Riss & Co.], 300 F.2d 317 (C.A. 3); Local 810, International Brother- hood of Teamsters (Fein Can Corp.), 131 NLRB 59, enfd. 229 F.2d_ 636 (C.A. 2). The Board and the courts have also uniformly held that successful in- ducement or encouragement of workmen to cease performing services necessarily restrains or coerces their employer. NLRB, v. Local 3, International Brotherhood of Electrical Workers [New York Tele- phone Ca], 325 F.2d 561 (C.A. 2). Having found that both the Respondents are responsi- ble for the acts and conduct of the protesting former Greasy Creek employees, it is clear, and I find, that by inducing and encouraging employees of secondary em- ployers TCH and Joboner to engage in a strike or a re- fusal to perform work for their employers, and by threat- ening to picket and by picketing TCH and Joboner CONCLUSIONS OF LAW 1. TCH, Joboner, and Samoyed are employers en- gaged in commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. - 2. The Respondents are labor organizations within the meaning of the Act. 3. By executing a collective-bargaining contract with Samoyed at a time when it did not represent an un- coerced majority of Samoyed's employees, District 30 violated Section 8(b)(1)(A) of the Act. 4. By blocking ingress to and egress from the Samoyed mine on July 19,1983, and on other dates, and by threat- ening to bust the heads of Samoyed employees if Samo= yed failed to hire former Greasy Creek employees the Respondents violated Section 8(b)(1)(A) of the Act. 5. By becoming signatory to a contract with Samoyed which contained a union-security clause requiring em- ployees to join and remain members of the Union at a time when it did not enjoy majority status among Samo- yed's employees, District 30 violated Section 8(b)(2) of the-Act. 6. By inducing and encouraging the employees of sec- ondary employers TCH and Joboner to strike or to refuse to perform any services for their employers and by threatening to picket and by picketing TCH and Jo- boner, all with the object of forcing TCH and Joboner to cease doing business with each other and with Samo- yed to cause Samoyed to sign the UMW contract and hire the former employees of Greasy Creek Coal Co., the Respondents violated Section 8(b)(i)(ii)(B) of the Act. THE REMEDY Having found that Respondent District 30 has engaged in and is' engaging in unfair labor practices in violation of Section 8(b)(1)(A) and (2) and 8(b)(4)(i)(ii)(B) and that Respondent Local' 1834 has engaged in and is engaging in unfair labor practices in violation of Section 8(b)(1)(A) and 8(b)(4)(i)(ii)(B), I find it necessary to order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. {Recommended Order omitted from publication.]