International Union, United Mine Workers Of America

MINE WORKERS (BRONZITE MINING) 587 International Union, United Mine Workers of Amer- ica and Bronzite Mining Company, Inc. Case 9-CD-436 24 June 1986 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS DENNIS, JOHANSEN, AND BABSON The charge in this Section 10(k) proceeding was filed 23 May 19851 by Bronzite Mining Company (the Employer), alleging that the Respondent, International Union, United Mine Workers of America (Mine Workers) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to the Employer's unrepresented employees. The hearing was held on 22 July 1985 before Hearing Officer Deborah Ja- cobson. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, fmding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer, a Kentucky corporation, is en- gaged in surface mining of coal in the State of West Virginia. During the 12 months preceding the hearing, a representative period, the Employer pur- chased and received at its West Virginia locations goods and materials valued in excess of $50,000 di- rectly from points located outside the State of West Virginia. We therefore find that the Employ- er is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that, as the parties stipulated, the Mine Workers is a labor or- ganization within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute On 5 May the Employer began coal mining op- erations on a tract of land in Mingo County, West Virginia (the minesite), under a contract with Free- mont Mining Company (Freemont Mining).2 Ruth i All dates are 1985. 2 Freemont Mining owns the mineral rights to the minesite. Trace Minerals, Inc. (Ruth Trace) operated the mine until 20 April, when it ceased operations and evidently terminated all its employees. The Mine Workers has at all relevant times sought to repre- sent Ruth Trace's employees, and conducted an or- ganizational campaign at the minesite before the company's 20 April shutdown.3 When Employer Foreman James Hurley arrived at the minesite on 20 May, he observed 14 to 15 pickets, including Mine Workers selective strike coordinator Rusty Franklin and former Ruth Trace employees, at the minesite entrance.4 Hurley testi- fied Franklin approached him and stated that he was a Mine Workers representative; he represented the former Ruth Trace employees; and he would appreciate it if the Employer's employees would not cross the picket line. Hurley further testified Franklin told him that "I [Hurley] was going to put them [the ex-Ruth Trace employees] back to work if we worked there."5 Hurley informed Franklin the Employer intended to use its own em- ployees, but stated that if "[Franklin's] men" wanted to submit job applications, the employer would consider them for work if there were future openings. Employer emergency medical technician David Sullivan testified that, when he arrived at the mine- site, Franklin stated he "was representing the UMWA and Ruth Trace" and "he felt they should have their jobs instead of us."5 Sullivan said he re- sponded he was a salaried employee and thought he should be working at the minesite. Employer truckdriver Daryl Ray Barker testified he and a fellow employee, Sam Hurley Jr., were also confronted by Franklin who told them that "they" were having a "labor dispute"; the former Ruth Trace employees thought they had a right to their jobs; and they would appreciate it if "we" did 2 Pursuant to a petition the Mine Workers filed on 11 February, a rep- resentation election was held 26 April to determine whether the Ruth Trace employees desired Mine Workers representation. All ballots cast were challenged and a hearing was set to determine the challenges The hearing was postponed , however, pending the resolution of an unfair labor practice charge the Mine Workers filed on 10 May alleging that Ruth Trace terminated its employees on 20 April for unlawful reasons. On 28 June the Regional Director for Region 9 refused to issue a com- plaint, there is no evidence that the Mine Workers appealed the Regional Director's decision 4 Franklin testified that the former Ruth Trace employees had contact- ed the Mine Workers office on 20 May and requested that "someone" come to the minesite as the Mine Workers had conducted the organiza- tional drive involving Ruth Trace . At the time of the picketing , Franklin had been in the Williamson area for 2 or 3 months overseeing "selective" strikes 5 According to Hurley's testimony, Franklin also told him that the Mine Workers had conducted a representation election and was awaiting a ruling sometime "that month"; Ruth Trace employees had started the job; and if that company resumed operations its employees would finish the work. 6 Sullivan also testified Franklin informed him that "they " had taken a vote whether to be union or nonunion 280 NLRB No. 68 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not cross "their" picket line.' Before leaving the minesite, Franklin stated he told the other pickets he would seek legal advice on what to do and be back the next day. When Foreman Hurley arrived on 21 May, he observed the same pickets assembled at the mine- site entrance. Hurley testified Franklin approached him8 and stated that "they were still on strike," and "didn't want us crossing his picket line."e When Employer President Raymond Barker ar- rived at the site shortly thereafter, Hurley advised him he might hold down the picket line violence by giving the pickets job applications. Franklin re- quested that the Employer bring the applications to the minesite the following day, which Barker agreed to do.1 0 Before leaving the minesite, Frank- lin "advised" the former Ruth Trace employees to seek employment with the Employer. On 22 May the pickets blocked the minesite's en- trance as Foreman Hurley and several of the Em- ployer's drivers tried to enter. 11 According to Hurley, the pickets told the drivers that they could not haul that day and that if they did there would be violence. Hurley testified the pickets told him that the Employer would be "shut down from there on out," and that the former Ruth Trace em- ployees "were going to work that job." When Em- ployer President Barker arrived, picket Collins told him "there wouldn't be any work there today, and that they had started the job, and they thought they should be the ones to finish it." When Barker responded there would be work, he testified the pickets replied "there will be head skinning if you work."12 Barker testified that he observed an un- identified picket standing next to Collins pull a pistol out of his pocket as Barker pulled away. Foreman Hurley testified that on 23 May he saw Franklin at the minesite between 6 and 6:45 a.m., ' According to driver Barker's testimony, Franklin also stated they were awaiting "some kind" of vote and if the vote "went " and was ac- cepted by the Board, the UMWA would set up a "selective" strike against "the Company" to try to get the former Ruth Trace employees' Jobs back. 8 Hurley testified that in his encounters with the pickets on 20 and 21 May, Franklin stepped out in front of the picket line and that the pickets "let him do most of the talking " According to Hurley's testimony, an unidentified man wearing a jacket with a Mine Workers patch on it ac- companied Franklin on both days 9 Employer dnver Barker testified that he and employee Sam Hurley Jr. were also confronted by "a guy" who asked them not to cross the picket line and stated that "they" were having a "labor dispute" and "wanted their jobs back " to Franklin testified that when Hurley informed him the Employer would bung job applications to the mmesite, he also stated that the pick- ets "would have to forget this union business" because the Employer had the same mining agreement with Freemont Mining that Ruth Trace had, making its mining contract null and void if it employed union workers The Employer denies it is a party to such an agreement i i Franklin evidently did not appear at the minesite on 22 May is Barker testified he then informed the pickets that he would not give them job applications if they were going to "skin [his] head " running back and forth among the pickets. He ob- served the pickets arriving at the minesite with rifles, pistols, and baseball bats. Employer President Barker testified that when he and employee Blan- kenship arrived at the minesite they were ap- proached by three pickets carrying rocks or bats and that the pickets hurled stones at their vehicle. According to Barker's and Hurley's testimony, the pickets struck several vehicles containing Employ- er officials and employees with rocks or baseball bats and/or fired shots as the individuals attempted to enter the minesite. Hurley testified that several of the Employer's drivers and one of its mechanics did not carry out their job duties in response to the pickets' activity on 22 and 23 May. Franklin denied Mine Workers involvement in the picketing activity. He testified that the Mine Workers sent him to the minesite only "to evaluate the situation," and that he was specifically trying to determine whether Ruth Trace was operating the mine. Franklin also testified he attempted to as- certain whether the former Ruth Trace employees were fired, laid off, or locked out, and to suggest "some type" of unfair labor practice charges for the employees to file. Franklin further testified that the Mine Workers claimed no interest in the work being performed by the Employer's unrepresented employees, but that it would claim an interest in the work in the future if it was able to prove its "common employer" claim.13 At the time of the hearing the pickets had not reappeared at the minesite since 23 May. B. Work in Dispute The work in dispute consists of all coal mining and loading work being performed by Bronzite Mining Company, Inc. at the Freemont Mining Company's tract of land located in Mingo County, West Virginia. C. Contentions of the Parties The Mine Workers moves to quash the notice of 10(k) hearing, contending that it has no interest in performing the disputed work; that it does not seek to have the Employer displace its current employ- ees in order to hire Ruth Trace's former employ- ees; that it is interested in representing Ruth Trace's employees only to the extent that they are ca The "common employer" claim evidently refers to the Mine Work- ers' suspicion that Ruth Trace and the Employer were parties to an agreement with Freemont Mining excluding union contractors from the mmesite. The Employer, as noted, denies it is party to any such agree- ment, however, and there is no evidence it has been charged with such conduct in any proceeding before the Board or elsewhere In addition, Bronzite did not assume any of the obligations of Ruth Trace, nor did it hire any of Ruth Trace's employees or purchase any of its equipment when it took over operation of the minesite MINE WORKERS (BRONZITE MINING) 589 employed at a facility operated by that company; and that any "dispute" which may exist is solely between the Employer and certain of Ruth Trace's former employees. The Mine Workers took no po- sition concerning the assignment of work. The Employer contends that the Mine Workers' purported disclaimer is insufficient to preclude the Board from considering the matter on the merits; that there is reasonable cause to believe that the Mine Workers violated Section 8(b)(4)(D) of the Act; and that the Board should assign the disputed work to the Employer's unrepresented employees based on employer preference, relative skills, and efficiency of operation. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must find reasonable cause to believe that Section 8(bX4)(D) has been violated and that the parties have not agreed to a method for voluntary adjustment of the dispute. Employer President Barker testified unrefutedly that no agreed-upon method exists for voluntary adjustment of this dispute. Concerning the statutory requirement of reasona- ble cause, Section 8(b)(4)(D) makes it an unfair labor practice for a labor organization to engage in proscribed activity with an object of "forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class, rather than to employees in another labor organization or in an- other trade, craft, or class ...." The record contains testimony that at least 14 pickets, including Mine Workers selective strike coordinator Franklin and former Ruth Trace em- ployees, assembled at the minesite from 20 May to 23 May, and that Franklin acted as their "repre- sentative" and spokesman in repeatedly urging the Employer's unrepresented employees to honor the picket line by not working.14 The testimony fur- ther discloses that Franklin told the Employer's emergency medical technician Sullivan that the former Ruth Trace employees felt they should have the jobs instead of the Employer's unrepre- sented employees, and stated to Foreman Hurley that, if the Employer worked at the minesite, it was going to put the former Ruth Trace employees back to work. In addition, the testimony of Sulli- van, Foreman Hurley, driver Barker, and Franklin shows that the Mine Workers actively sought the disputed work on behalf of the former Ruth Trace employees by such conduct, and by requesting job 14 There is no dispute, and we find, that Franklin was an authorized Mine Workers agent. applications and advising the pickets to seek em- ployment with the Employer. There was also testimony that picket Collins told Employer President Barker the former Ruth Trace employees thought they should be the ones to finish "the job" and there would be "head skin- ning" if the Employer performed the work; the pickets hurled stones at the vehicle occupied by Employer President Barker and one of the Em- ployer's employees and displayed a gun; and the pickets struck several vehicles containing the Em- ployer's employees with rocks and baseball bats or fired gunshots as the individuals attempted to enter the minesite. The evidence shows that the Mine Workers, through its agent Franklin, induced and encour- aged the Employer's employees to refuse to work at the minesite,15 with an object of forcing the Employer to reassign work from its unrepresented employees to the former Ruth Trace employees. The evidence also shows that Franklin, acting in his capacity as Mine Workers selective strike coor- dinator, instigated, encouraged, and participated in a minesite picket 16 and that at least one object of 15 Specifically, we rely on the evidence that Franklin informed the Employer's employees and officials that the ex-Ruth Trace employees felt they had a right to their former jobs and repeatedly urged them not to cross the picket line; told Employer Foreman Hurley that he was going to put the former Ruth Trace employees back to work if the Employer operated the minesite, and told emergency medical technician Sullivan he felt the former Ruth Trace employees should have their jobs rather than the Employer's employees. 16 Specifically, we rely on the evidence that Franklin, who at the time of the picket had been organizing selective strikes in the area where the picket occurred, took a leadership role in initiating the picketing conduct on 20 May, actively participated in the picket on 20 and 21 May, and encouraged and condoned the continued picketing activity on 22 and 23 May by the example he set on 20 and 21 May by providing "legal advice" to the pickets to seek employment with the Employer, and by appearing at the site and talking to several Ruth Trace Employees on 23 May during the period they were evidently preparing for an aggressive campaign to force the employer to reassign the disputed work to them Under the circumstances and noting that Franklin was acting within the scope of his general or apparent authority as a union agent at all rele- vant times, we find that the Mine Workers was involved in and fully re- sponsible for the mmesite picketing activity described above See Meat Cutters Local 248 (Milwaukee Independent Meatpackers Assn.), 222 NLRB 1023, 1034 (1976). As Mine Workers Agent Franklin was present during and indeed participated in a substantial amount of the alleged unlawful picketing activity and at no time disavowed such conduct or took steps to prevent further picketing we find the Mine Workers responsible for the pickets' conduct occurring on 22 and 23 May, even though Franklin was evidently not present on the picket line when most of the relevant events occurred See Hospital Employees District 1199 (Southport Manor Convalescent Center), 227 NLRB 1732, 1734 fn 6 (1977); Dover Corp, 211 NLRB 955, 956-957 (1974), enfd as modified 535 F 2d 1205 (10th Cir. 1976), cert denied 429 U S. 978 (1976), see generally Teamsters Local 115 (E. J. Lavino), 157 NLRB 1637, 1642- 1643 (1966). Although Franklin denied Mine Workers involvement in the picketing activity and asserted that the Mine Workers sent him to the minesite only to "evaluate the situation ," contrary to other witness' testimony, such conflicts in testimony do not prevent the Board from proceeding under Sec 10(k), as we are charged only with determining that reasonable cause exists for finding a violation of Sec 8(bx4)(D) of the Act, not that the violation actually occurred Longshoremen ILA Local 1294 (Cibro Pe- troleum Products), 257 NLRB 403, 406 (1981); Bricklayers Local 44 (Cor- betta Construction), 253 NLRB 131 (1980) 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the picket was to force the Employer to reassign work to the former Ruth Trace employees. Concerning the Mine Workers' purported dis- claimer, it is well established that a dispute over a work assignment no longer exists once one of the competing unions or parties effectively renounces its claim to the work in question.'' Here, however, although selective strike coordinator Franklin testi- fied that the Mine Workers has no current interest in the disputed work, he stated that it would claim such interest in the future if it was able to prove its "common employer" contention. Such a purported disclaimer being conditioned on the outcome of al- leged pending legal action is not an effective re- nunciation of its claim to the disputed work.' 8 We therefore deny the Mine Workers motion to quash the notice of 10(k) hearing. We fmd reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and that there is no agreed method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act.19 Accordingly, we find that the dispute is properly before the Board for determination. Our dissenting colleague apparently interprets the Union's picketing as a lawful attempt to re- trieve the former Ruth Trace employees' jobs, con- tending that the relevant dispute is not between competing groups of the Employer's employees, but rather is between the Mine Workers and Ruth Trace, or the Mine Workers and the Employer to the extent it is a successor or disguised continuance of Ruth Trace. Our dissenting colleague relies on Longshoremen ILWU Local 8 (Waterway Terminals Co.), 185 NLRB 186 (1970), and Safeway Stores, 134 NLRB 1320 (1961), holding that a union's picketing to recover terminated employees' jobs did not involve a jurisdictional dispute. Both cases are distinguishable, however, as they involved situations where the employer triggered a work dispute with the union by unilaterally reallo- cating work from one group of its employees to another, or by replacing one group of employees with another. The Board there was called upon not to resolve a jurisdictional dispute between compet- 17 Laborers (Paschen Contractors), 270 NLRB 327 fn 2 (1984), Sheet Metal Workers Local 55 (Gilbert L. Phillips Inc.), 213 NLRB 479, 480-481 (1974), Laborers Local 935 (C & S Construction Co.), 206 NLRB 807, 808 (1973) 15 See Longshoremen ILA Local 1294, supra at 406; see generally Oper- ating Engineers Local 542 (James Julian. Inc.), 247 NLRB 1113, 1115 (1980). 19 Although we do not believe that the record supports the Mine Workers claim that Franklin was sent to the minesite solely "to evaluate the situation," and determine, inter airs, if Ruth Trace was operating the mine, we need not resolve that question, as our finding of one proscribed object is sufficient to bring the Mine Workers' conduct within the cover- age of Sec 8(b)(4XD) even if a lawful purpose was also shown to exist See Plumbers Local 195 (Gulf Oil), 275 NLRB 484, 485 In. 7 (1985), Painters Local 79 (O Brien Plastering Co.), 213 NLRB 788, 790 (1974) ing groups of employees but, in effect, to arbitrate a work assignment dispute solely between the em- ployer and the picketing union. Here, by contrast, the Employer was admittedly not responsible for the Ruth Trace employees' terminations, and there is no evidence that it maintained any legal or con- tractual relationship with Ruth Trace that would allow us to infer responsibility.20 The Employer began work more than 2 weeks after Ruth Trace had ceased operating the minesite and evidently at a time when no other employer's employees were performing the disputed work. The Employer was, thus, an obviously neutral party thrust into a work dispute that it did not cause. This is precisely the situation that Sections 8(b)(4)(D) and 10(k) are in- tended to resolve ,21 and we can find no reason these sections should not be applied with full effect in the instant case.22 Under the dissent's rationale, a union whose em- ployee members have been terminated because their employer ceases operations at a jobsite would be free to picket all future employers who attempt to perform the disputed work at the site with their own employees and not be subject to the proscrip- tions of Sections 8(b)(4)(D) and 10(k).23 We con- sider the dissent's approach a recipe for jurisdic- tional unrest which is unsupported by Board prece- dent and is contrary to the letter and spirit of the noted sections of the Act. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- 20 Our dissenting colleague's suggestion that the Mine Workers had a lawful work-preservation objection against the Employer to the extent it might have been a successor or disguised continuance of Ruth Trace is sheer speculation, as there is no evidence that the Employer was a suc- cessor or disguised continuance of Ruth Trace and such was not even alleged by the Mine Workers. 21 See Longshoremen ILA Local 1911 (Cargo Handlers), 236 NLRB 1439, 1440 (1978), NLRB v Electrical Workers IBEW Local 1212 (Colum- bia Broadcasting), 364 U.S. 573, 580-581 (1961) 22 We note that the "doomsday" hypothetical presented in fn 5 of the dissent is clearly precluded under Waterway Terminals and Safeway, supra, as it presents a situation where an employer instigates a work dis- pute with the union by voluntarily reassigning work from one group of its employees to another Whether there may have been a legitimate dispute between Ruth Trace and its former employees, as our dissenting colleague suggests , cannot alter the unlawful object disclosed by the Mine Workers picketing of Bronzite which, as noted in fn 20 above, is sufficient to bring the Mine Workers' conduct within the coverage of Sec 8(b)(4)(D) 23 It is not uncommon for one employer to lose a contract to perform certain services and to be replaced by another having its own work force MINE WORKERS (BRONZITE MINING) 591 ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in deciding this dispute. 1. Certifications and collective-bargaining agreements There is no evidence of relevant Board certifica- tions or collective-bargaining agreements. This factor therefore does not favor an award to either group of employees. 2. Company preference and past practice Employer President Barker testified that the Em- ployer prefers to use its unrepresented employees to perform the disputed work as it has "for a number of years." This factor therefore favors an award to the Employer's unrepresented employees. 3. Area and industry practice No party presented evidence concerning area and industry work assignment practice. This factor therefore does not favor an award to either group of employees. 4. Economy and efficiency of operation Employer President Barker testified: "We classi- fy efficiency, I guess, as the most time we operate without accidents, or people being off from work due to accidents, or caused by the job. And by their ability to operate and maintain their equip- ment in a good, safe operational condition." Barker further testified that the Employer has never had a major accident resulting in death or permanent injury and has never received more than a "normal citation" from the Mine Safety and Health Admin- istration or been "on order" with the agency. There is no evidence, however, that the former Ruth Trace employees were not as efficient as the Employer's employees at performing the disputed work, or that they performed the work in a less safe manner. We therefore find that this factor does not favor an award to either group of employees. 5. Relative skills As noted, the Employer is engaged in the busi- ness of surface mining . Most of the Employer's un- represented employees are skilled in several differ- ent surface mining methods and, before commenc- ing at the minesite, all performed surface mining work at another mine the Respondent operated. It is undisputed, however, that the former Ruth Trace employees performed the disputed work at the minesite until 20 April, and there is no evi- dence they are less skilled than the Employer's un- represented employees. We ttherefore find this factor does not favor an award to either group of employees. Conclusion After considering all the relevant factors, we conclude that the Employer's unrepresented em- ployees are entitled to perform the work in dispute. We reach this conclusion relying on the factors of company preference and past practice. The deter- mination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Bronzite Mining Company rep- resented by no union are entitled to perform all coal mining and loading work now being per- formed by the employees of Bronzite Mining Com- pany at the Freemont Mining Company's tract of land in Mingo County, West Virginia. 2. International Union, United Mine Workers of America is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Bronzite Mining Company to assign the disputed work to the employees of Ruth Trace Minerals, Inc. 3. Within 10 days from this date, International Union, United Mine Workers of America shall notify the Regional Director for Region 9 in writ- ing whether it will refrain from forcing the Em- ployer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsist- ent with this determination. MEMBER JOHANSEN, dissenting In my view, the instant case does not present a jurisdictional dispute cognizable under Section 10(k) of the Act. Accordingly, I respectfully dis- sent. I have no quarrel with the majority's factual recitation and wish only to reiterate a few pertinent facts. Thus, on 20 April 1985,1 in the midst of the Mine Workers organization campaign, Ruth Trace Minerals, Inc. terminated its entire work force at the Mingo County worksite. Trace had been oper- ating under a contract with Freemont Mining Company. On 5 May, also under a contract with Freemon, Bronzite Mining Company (the Charging Party) began mining operations at the Mingo site utilizing its own, unorganized employees. On 10 May the Mine Workers filed an unfair labor prac- tice charge alleging that the former Trace employ- ees had been unlawfully discharged. Between 20 ' All dates refer to 1985 unless otherwise noted 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 23 May the Mine Workers picketed at the Mingo site. As set forth by the majority, the pick- ets advanced their belief that the discharged Trace employees had been unlawfully terminated and were entitled to be doing the Mingo site work. The pickets urged Bronzite employees not to cross the picket line.2 No picketing occurred after 23 May and on 28 June the Regional Director refused to issue a complaint on the Mine Workers 10 May charges. The majority finds Section 10(k) applicable to the foregoing facts because, in its view, the Mine Workers was seeking to coerce an employer (Bron- zite) into reassigning work from one group of em- ployees (Bronzite's unorganized employees) to an- other group of employee (the discharged Trace employees). Although that characterization may well place this dispute within the literal proscrip- tion of Section 8(b)(4)(D), the Supreme Court and the Board have long held that Section 8(b)(4)(D) cannot be read in isolation, but must be applied in conjunction with Section 10(k).3 Read together, those sections do not apply to a union's effort to 2 My dissent should in no way be viewed as a condonation of the threats and violence that occurred on the picket line. s NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcast- ing), 364 U.S. 573 (1961), Safeway Stores, 134 NLRB 1320 ( 1961). retrieve work lost by employees that it represents but rather to disputes between two or more com- peting groups of employees claiming to do certain work tasks. Here, the dispute is not between two competing groups of employees employed by Bronzite, but rather a dispute between the Mine Workers and Trace or Bronzite to the extent that Bronzite might have been a successor or disguised contenance of Trace.4 In my view, Section 10(k) is simply inapplicable to such a dispute.5 Longshore- men ILWU Local 8 (Waterway Terminals Co.), 185 NLRB 186 (1970); Safeway Stores, 134 NLRB 1320 (1961). See also Printing Pressmen Local 7 (Chicago) (Metropolitan Printing Co.), 209 NLRB 320 (1974); Penello v. Sheet Metal Workers Local 59, 195 F.Supp. 458 (D. Del. 1961). Accordingly, I dissent. 4T1e fact that the Mine Workers claim of unlawful discharge was eventually found to be without merit does not alter the proper character- ization of the nature of the dispute at the time the dispute existed 6 Under the majority's characterization of the dispute, Sec. 10(k) would be applicable to a situation where an employer discharges its work force the day before an election and hires nonunion replacements and the union pickets the facility telling replacement employees that the dis- charged employees are entitled to the jobs. In such a situation, the picket- ing union would be seeking to coerce the employer into replacing one group of employees (the newly hired replacements) with another group of employees (the discharged strikers) Surely, Sec 10(k) does not reach so far.