United Mine Workers Of America, Local Union No 5926

644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Mine Workers of America, Local Union No 5926 and United Mine Workers of America, District 29 and United Mine Workers of Amer ica, International Union and Sunrise Mining, Inc Cases 9-CP-317-1 9-CP-317-2 and 9- CP-317-3 November 10 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 21 1988 Administrative Law Judge Richard H Beddow Jr issued the attached deci sion The Charging Party filed exceptions and a supporting brief and the Respondents filed a brief in response to the exceptions 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 I and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed I The Charging Party has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings Additionally we are satisfied that the Charging Party s contentions that the judge was biased are without merit There is nothing in the record to suggest that his conduct at the hearing his resolution of credi bility his rulings or the inferences he drew were affected by any bias or prejudice Donald A Becher Esq for the General Counsel Grant Crandell Esq of Charleston West Virginia George Davis Esq of Beckley West Virginia and Steve Yokich Esq of Chicago Illinois for the Re spondents Jerry Cameron Esq of Bluefield West Virginia for the Charging Party DECISION STATEMENT OF THE CASE RICHARD H BEDDOW JR Administrative Law Judge These consolidated cases were heard in Welch West Virginia on January 14 1988 briefs subsequently were filed by the General Counsel and the Union The pro ceedings are based on charges filed July 20 1987 i by I All following dates are in 1987 unless otherwise indicated Sunrise Mining Inc of Vansant Virginia The Regional Directors consolidated complaint dated August 13 al leges that Respondents Local Union No 5926 District 29 and International Union of the United Mine Workers of America violated Section 8(b)(7)(C) of the National Labor Relations Act by picketing the Charging Party s minesite for more than 30 days without filing a represen tation petition On a review of the entire record in this case and from my observation of the witnesses and their demeanor I make the following FINDINGS OF FACT I JURISDICTION Sunrise Mining is a Virginia corporation engaged in the business of mining coal near Jolo and Bradshaw West Virginia It mines coal for Eastern Energy Corpo ration located in Maxie Virginia and received payments in excess of $50 000 for this work from Eastern in 1987 The Employer also shipped over $50 000 worth of coal directly from West Virginia to Virginia and it purchased over $50 000 worth of supplies from Virginia for use in its West Virginia operations during 1987 Under these circumstances it is concluded that at all times material it is an employer engaged in operations affecting commerce within the meaning of Section 2(2) (6) and (7) of the Act and I find that it effectuates the policy of the Act to exercise jurisdiction It is admitted that each Respondent is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICE The Employers Jolo mine is located on Bradshaw Mountain which lies partly in McDowell County West Virginia and partly in neighboring Virginia The major industry in McDowell County is coal mining That in dustry is severely depressed and between 60 and 70 per cent of local coal miners in McDowell County are unem ployed Mines in the McDowell County are generally subject to United Mine Workers contracts and the Union actively promotes its organization and membership in the area The Employer is a Virginia corporation run by Vir gmia residents All the coal that is mined goes to Virgin is for processing and almost all the mining supplies are bought in Virginia The Employer first began to prepare the minesite for mining in the spring of 1987 and almost all the miners who were originally hired were from Vir ginia Union Organizer John Pertee is employed by the International Union s region 2 office in Charleston West Virginia He was appointed to that position by the presi dent of the International and although he is assigned to serve the area of District 29 he is not employed by that entity which is a separate autonomous body whose president has no control over Pertee s activities 2 howev 2 Pertee admits that he described himself as an employee of District 29 to a Board agent however I credit his testimony that this was a misstate ment of his actual assignment to District 29 291 NLRB No 102 MINE WORKERS LOCAL 5926 er it provides office space and support services for Pertee at its subdistrict office in Welch Similarly he is not employed by or subject to the control of Local 5926 which Local has geographical jurisdiction in the area of Bradshaw Mountain where the alleged unfair labor prac tice took place Pertee s duties include coordinating organizing drives and researching and surveying nonunion companies He testified that when he hears of new companies he tries to get information about them and tries to set up a meeting to find out if they are under a contract or will sign the 1984 agreement The local and district unions rely on the International organizer for expansion within their territory and dues from any additional membership that results from a suc cessful organizing drive are shared in equality by the local the district and the International Pertee testified that he visited the minesite in mid May after receiving phone calls from local laid off miners who had become aware of preparatory activity and who were anxious about the possibility of work He testified that he attempted to speak with a representative of management and was told that the mine would be run by people out of Virginia and that it would be nonunion Harold and Ray VanDyke owners of the Employer testified that on March 25 shortly before their Jolo mine actually began operations Pertee came to the minesite and he said that he had been sent to see if he could get them to sign a contract Ray VanDyke asked They who' and Pertee said the UMWA Ray recalls him saying the Local UMWA Ray VanDyke asked if he meant to have VanDyke sign the wage contract with the United Mine Workers of America to which Pertee an swered yes Ray VanDyke then told Pertee that they could not afford to sign a UMWA contract because he (the Employer) would not be getting paid enough for the coal and could not afford the benefits under the contract Pertee said that he made no demand for recognition or for a contract during this conversation but pointed out that they were West Virginia mines that successfully worked low seams of coal (the coal involved) and paid union scale and benefits VanDyke told Pertee that per haps the other employers could afford it but he could not Pertee said that he wished he could get them to sign a contract but they indicated they were a nonunion oper ation in Virginia and were not interested Three of the Employers Virginia miners testified that the first week they worked they saw pickets at the mine access road as they were riding home together from work They were flagged down by the pickets After they stopped Pertee identified himself and asked if they would fill out one of the union cards or would help him organize the mine One member of Local 5926 who was present also asked the same questions to one of the em ployees Pertee testified that he had gone to the minesite on May 27 after he was called by local resident and union member Noah Meadows and told that the local commu nity was upset because the Employer would not accept job applications and had told them they were bringing their own people from Virginia Pertee told Meadows he had talked with management and did not think they 645 could be organized but he agreed to meet with several local people and go to the mine to see the situation After he spoke to several employees as they were leav ing the minesite other cars went by without stopping or drove off and Pertee told Meadows that they would not be able to organize the mine Several other persons were upset and asked what could be done and Pertee replied that the only thing he knew of would be a community protest against the mines practice of not hiring local people The next morning a group of about 15 to 18 people which included 5 union members some retired miners and some community residents without union affiliation went to the area of the mine entrance and began a com munity protest Pertee joined the group for the ex pressed purpose of showing union support for the corn mumty interests He then continued to visit the protest on a regular basis but made no further recognitional or organizational attempts David Hicks a former mine foreman who worked for the town of Bradshaw saw the preparatory activity at the minesite in April He asked about a supervisory job and was told to check back latter He did so twice and was told they already had a crew mostly from Virginia He passed the road to the mine in late May observed a group and stopped to see what was going on He recog razed Noah Meadows because Hicks previously had been Meadows supervisor and was told by Meadows that it was a community protest for jobs in their county He joined the group for 3 days that week and 3 days the next week He testified that he had personal knowledge of five or six of the protesters who he knew and who were not union members Bonnie Puckeet operates a restaurant in Bradshaw about 1 mile from the Sunrise minesite On May 28 or 29 her brother told her that he had seen a group of men protesting for jobs and suggested she help them out by taking them something to eat After finishing her lunch business she did so and on 15 to 20 occasions over the next several weeks she again supplied free food for the protesters because she was concerned that the mine oper ator had brought men in from Virginia and she wanted the local miners from McDowell County to have jobs She also testified regarding her knowledge of other per sons including several women who were not affiliated with the Union and who supported the protest at the minesite in conversation at her restaurant and by pro viding sodas in addition to items she herself had paid for and supplied Puckeet received some leaflets from the protesters and she made them available to the patrons of her restaurant Her mother also took leaflets to other locations These leaflets also were distributed at the protest site and were entitled McDowell County Coal Miners For Economic Justice The leaflets noted the unemployment in the county and the effect on the community s ability to sur vive in the face of the jobs at Sunrise minesite going to out of state residents and it identified a number of public officials that readers were urged to contact The leaflet did not mention unions or the UMWA 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The protesters continued their action until mid June No effect was made by anyone to block egress or en trance to the minesite and no organizational or recogni tional actions took place after the first day of picketing Neither the Van Dykes nor any of their employees had any further conversations with Pertee or the protesters after May 28 On June 12 the Employer sought a preliminary injunc tion in state court against Local 5926 based on its allega tions that unlawful picketing was creating a danger of immediate and irreparable injury loss damage and harm to persons and property by the number conduct and ac tivities of the picketers The Employers complaint also alleged that although plaintiff has called on defendants to cease their illegal and improper activities defendants have not done so Harold Van Dyke who signed the complaint admitted that these alleged actions had not occurred but that he had signed a document prepared by his lawyer The picketing stopped for approximately a week as a result of the injunction but began again after the court s order was modified to allow nine persons to picket Pick eting continued on an apparent sporadic basis until the protest died out on July 20 Pertee testified that during this period of time he had been unaware of any Federal circuit court order that might have restricted the Unions picketing practices but stated that he subsequently became aware of such an order during mid July On August 26 over a month after the picketing ended Harold Van Dyke signed a petition on behalf of the Em ployer seeking an election in which he stated that picket ing was then going on 3 As noted above the Employer had filed this unfair labor practice charge on July 20 about the time the picketing ended III DISCUSSION Under Section 8(b)(7)(C) of the Act it is an unfair labor practice for a labor organization to picket an em ployer Where an object thereof is forcing or requiring an employer to recognize or bargain with a labor orga nization as the representative of his employees or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing Here union organizer John Pertee is shown to have made investigatory contacts with the operators of a new mining operation in McDowell County West Virginia and to have participated in 1 day of picketing at which time he engaged in preliminary organizational type ac tivities by questioning the operators and employees of 8 R Exh 2 marked at 113 of the transcript was inadvertently not re ceived on the record and it is admitted into evidence the mine about the possibility of recognition of the Union or the organization of the employees Other than the verbal conduct by Pertee who had identified himself as a union organizer no other outward manifestation of union participation in the protest was shown except for the indication that one protester wore a union hat and said to an employee that they had people out of work and that one other protester had a sign that said for a better mine hire a West Virginia UMWA miner It also is noted that after the first day the company managers and employees stated that they avoided looking or communicating with the protesters the Company s owners made no attempt to investigate or communicate with the protesters no obvious union orga nizational or recognitional action took place no efforts were made to block egress or entrance to the minesite and the protesters engaged in no dangerous or improper conduct There also is no indication on this record that Pertee or any other union official dominated or cortrolled the protesters activities To the contrary the affirmative evi dence shows that the protest was endorsed and conduct ed by a broad based group of individuals many of whom had no direct or indirect relationship with the Union but who otherwise actively participated in the protest as a manifestation of community support for the concept of employment of local rather than out of state workers 4 Moreover some burden rests on the General Counsel to affirmatively show that the Union and union members other than agent Pertee were engaged in the subject picketing and to refute Respondents defense that the group picketing at the minesite was made up of commu nity protesters acting on behalf of their own interest and not on behalf of the Union Here no such affirmative showing has been made As noted the context of the only leaflet distributed by the protesters was directed at jobs for local unemployed workers and made no mention of Unions or the UMWA It also appears that Pertee s presence at the first day of the protest was made at the invitation of local people and was done without any union directed initiative aimed at organizational picketing Under these circumstances I find that the fact that some members of the union partici pated in the protest is insufficient to show that the activi ty was a union endorsed organizational picketing effort Moreover the mere showing that Pertee took the oppor tunity to pursue an inquiry on the possibility of recogni tion of the Union or organization of the employees and that he subsequently continued to frequently be present at the protest site falls far short of proving that the Union engaged in activities violative of Section 8(b)(7)(C) of the Act especially in view of the absence of any substantive showing that any organizational or re cognitional union activity occurred after the first day of The General Counsel suggests that much of the testimony regarding the involvement of nonunion persons in the picketing is hearsay I find however that such testimony embraces personal knowledge that goes beyond what these other individuals may have said about their union or nonunion status And to the extent that portions of their beliefs regarding the status of other persons could be considered to be based on what these persons had said I find it to be relevant and reliable in nature and there fore properly admissible under the circumstances MINE WORKERS LOCAL 5926 647 the protest Although the General Counsel suggests that four named union members (Same Fergill Ernest Rob erts Paul Roberts and Noah Meadows) also were acting on behalf of the Union none of these individuals was called to testify and otherwise there is no evidence re garding their conduct except some peripheral reference to their sometime presence at the protest site Finally there is no showing that the Union engaged in any sub terfuge in order to disguise the true nature of the activity at the protest site I therefore conclude that as a matter of fact the pick eting of the Charging Party s mine began as a communi ty protest that this protest was utilized on 1 day by union agent Pertee as a vehicle for exploring the possibil ity of gaining union recognition or gaining the employ ees that this effort was abandoned the same day and that the picketing continued as a community protest in dependent of any union direction and control and inde pendent of any union organizational or recognitional ob jective No handbilling on behalf of the Union occurred and the minimal presence of any union related manifestations (one union hat one or two signs that contained an em ployment rather than an organizational message and the frequent appearance of an individual known to be a union organizer) lacks the substance necessary to signal that there was a union presence that would give the impression that union organizational or recognitional picketing was going on in a traditional sense see Team sters Local 688 (Levitz Furniture) 205 NLRB 1131 (1973) and I conclude that the Respondents are not shown to have engaged in picketing I find that the activity that took place at the Charging Party s minesite (especially after the first day) is not shown to have constituted other than a community pro test over jobs and that this protest was an exercise in free speech protected by the first amendment to the Constitu tion of the United States Although the local court issued an injunction based on Harold VanDyke s allegation that illegal picketing was occurring VanDyke admitted that he did not know if any of the protesters (except Pertee) were connected with the UMW that he never spoke to Pertee after May 28 that he never asked Pertee or any one else to stop the protest except through the subsequent physical act of posting the court s restraining order and that the protest ers did not engage in any dangerous or improper con duct Accordingly I find that the injunction was found ed on admittedly false and exaggerated statements5 re garding the nature of the activity at the protest site This pattern of carelessness or misinformation continued when the Charging Party subsequently presented an election petition to the Board in August and alleged that picket ing was still then going on 1 month after the protest had ended in July Under these circumstances I find that the issuance of injunctive relief has no bearing on the factual and legal determinations made here Otherwise I find that the circumstances described immediately above show a willingness by the management of the Charging Party to disregard or ignore truthfulness or accuracy in its description of pertinent events and therefore is rele vant to my evaluation of the credibility of their testimo ny Accordingly to the extent such testimony might conflict with any factual findings here I find such testa mony not to be credible In light of my conclusions that Respondents have not engaged in picketing and that the occurrence in question in fact was a community protest conducted independent of control or direction by the Respondents I therefore find that the conduct in question is not subject to regula tion under Section 8(b)(7)(C) of the Act and that the Re spondents have not been shown to have engaged in any unfair labor practices as alleged in the complaint Accordingly the complaint must be dismissed CONCLUSIONS OF LAW 1 Each Respondent is a labor organization within the meaning of Section 2(5) of the Act and it will effectuate the purposes of the Act to assert jurisdiction here 2 Respondents did not establish and maintain a recog nitional or organizational picket line at the Employer s minesite and did not engage in an unfair labor practice in violation of Section 8(b)(7)(C) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed6 ORDER It is recommended that the complaint be dismissed in its entirety 5 These statements appear to have been an attorney s use of terminolo gy designed to include the elements necesary to secure injunction relief rather than a description of any substantive occurrences at the protest site 6 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses