Local Union No. 8505, Etc., District 30, UMW

National Labor Relations Board - Board Decisions

Apr 3, 1964

146 N.L.R.B. 652 (N.L.R.B. 1964)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with the above-named Union as
the representative of our employees in the above -stated unit, by refusing to meet
with said Union except upon condition that it accept all of our demands, by
unilaterally raising wages of our employees or otherwise changing their terms
or conditions of employment, or in any other manner refusing to bargain with
said Union.
WE WILL NOT in any other manner interfere with , restrain, or coerce our em-
ployees in the exercise of rights guaranteed to them by Section 7 of the Act.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of the above-named Union or any other labor organization.
ROSE PRINTING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623 , if they
have any question concerning this notice or compliance with its provisions.
Local Unions Nos. 8505 , 8915, 5899 , 7788 and 8161 , District 30,
United Mine Workers of America and Harold Fuel Company,
Inc.; New Virgie " Coals, Inc.; Charles F. Trivette Coal Com-
pany, Inc.; Utilities Esco Coal Corporation ; Ramsey Elkhorn
Coal Company, Inc.; East Kentucky Collieries , Inc.; Robert
Holcomb, C. D. Roberts and Robert Billups d/b/a Dixie Min-
ing Company ; Fire King Coal Company , Inc.; Premium Elk-
horn Mining Company, Inc.; Left Beaver Coal Company, Inc.;
C. 0. Coleman , d/b/a C. 0. Coleman Coal Company
Lee Howell , Lowell Sammons , Berman Gibson, Bennie Mullett,
Jr., and the Individuals Listed on Attachment "A" et al. and
Highland Hill Coal' Company
Milford Adkins and the Individuals Listed on Attachment "B"
et al. and Right Beaver Coal Company, Inc. Cases Nos. 9-CB-
1064-1, 9-CB-1064-9, 9-CB-1064-3,' 9-CB-1064-4, 9-CB-1064-5,
9-CB-1064-6, 9-CB-1064-7, 9-CB-1064-8, 9-CB-1064-9, 9-CB-
k64-10,9-CB-1064-11,9-CB-1073, and 9-CB-1084. April 3,1964
DECISION AND ORDER
On August 27, 1963, Trial Examiner Horace Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the consolidated complaint and recommending that the consolidated
complaint be dismissed in its entirety, as set forth in the attached
Intermediate Report. Thereafter, the General Counsel and the
Charging Parties filed exceptions to the Intermediate Report 'and-sup-
146 NLRB-No. 80.
LOCAL UNION NO. 8505, ETC., DISTRICT 30, UMW 653
porting briefs, and the Respondents filed briefs in support of the,
Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The,
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this.
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
1 The Trial Examiner incorrectly found that there was no evidence that any officer of
Respondent Local 8915 was present at the meeting of the roving pickets on September 12,
1962, as there is testimony that the president of this local was present at that meeting.
We find, however, that such inadvertent error does not affect the ultimate conclusion,
which was reached by the Trial Examiner and which we adopt herein, that the Respond,
ent Local Unions were not responsible for the alleged 8(b) (1) (A) violations herein.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Unfair labor practice charges were filed on September 24, 1962, by Harold Fuel,
Company, Inc.; New Virgie Coals, Inc.; Charles F. Trivette Coal Company, Inc.;
Utilities Esco Coal Corporation; Ramsey Elkhorn Coal Company, Inc.; East
Kentucky Collieries, Inc.; Dixie Mining Company; Fire King Coal Company, Inc.;
Premium Elkhorn Mining Company, Inc.; Left Beaver Coal Company, Inc.; and
C. O. Coleman Coal Company, all herein called the Charging Parties or the Com-
panies, against Local Unions Nos. 8505, 8915, 5899, 7788 and 8161, District 30,,
United Mine Workers of America (Case No. 9-CB-1064-1 to 11),' herein called
Respondent Locals. Other charges were filed on October 24, 1962, by Highland
Hill Coal Company (Case No. 9-CB-1073) against Lee Howell, Berman Gibson,
Lowell Sammons, Bennie Mullet, Jr., and others, and charges on December 19, 1962,
by Right Beaver Coal Company, Inc. (Case No. 9-CB-1084), against Milford,
Adkins and others.' Pursuant to these charges the Regional Director for the Ninth
Region of the National Labor Relations Board, herein called the Board, on,
February 28, 1963, issued a consolidated complaint against Respondents, alleging,
in substance, that Respondents have restrained and coerced- employees of the Com-
panies in the exercise of the rights guaranteed in Section 7 and in violation of
Section 8(b)(1)(A) of the National Labor Relations Act, as amended (29 U.S.C.
Sec. 151, et seq.), herein called the Act, by blocking ingress to and egress from their
place of work by mass picketing and threats and acts of violence.
Respondents have filed answers denying the commission of any unfair labor
practices.
Pursuant to notice, Trial Examiner Horace A. Ruckel conducted a hearing at
Pikeville, Kentucky, on April 15, 16, 17, 18, 23, and 24, 1963, at which the parties
were represented by counsel. Subsequent to the hearing the General Counsel and
Respondents filed briefs.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
1 The complaint (Case No 9-CB-1064) includes as Respondents 83 other individuals
who are named in Attachment A thereto.,, These individuals' collectively are alleged to
constitute a labor organization within the meaning of Section 2(5) of the Act and are
herein called Respondent roving pickets (group A). The complaint (Case No 9-CB-1073)
includes as Respondents 68 other individuals who are named in Attachment B thereto.
These individuals are alleged to constitute a labor organization within the meaning of
Section 2(5) of the Act They are herein. referred to as Respondent roving pickets
,(group B). Respondent roving pickets (group A) is named in the charge filed on Octo-_
her 24, and Respondent roving pickets (group B) in that filed on December 19, 1962.
`654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS'OF FACT
1. THE BUSINESS OF THE COMPANIES
The Companies named in the complaint as Charging Parties are engaged in the
business of operating coal mines or processing plants in localities in eastern
Kentucky. During the 12 months prior to the issuance of the complaint each of the
coal companies sold and shipped in interstate commerce from their respective mines
or processing plants in the State of Kentucky, to points outside of the State, products
of a value in excess of $50,000.
The complaint alleges, Respondents admit, and I find that the Companies are
employers as defined in Section 2(2) of the Act, and are engaged in operations
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATIONS AND ALLEGED LABOR ORGANIZATIONS INVOLVED
1. The complaint alleges, and I find, that Local Unions Nos. 8505, 8915, 5899,
7788 and 8161, District 30, United Mine Workers of America, are labor organiza-
tions within ,the meaning of Section 2(5) of the Act, and admit employees of the
Charging Parties to membership.
2. The complaint alleges, but Respondents deny, that Respondent roving pickets
constitute labor organizations within the meaning of Section 2(5) of the Act. This
question cannot be answered short of inquiring into the origin and structure of the
roving pickets and examining their activities.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent Locals and Respondent roving pickets
1. The definition of a labor organization
:Section 2-(5) of the Act defines a labor organization as follows:
The term "labor organization" means any organization of any kind, or any
agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of dealing
with employers concerning grievances, labor disputes, wages, rates of pay,
hours of employment or conditions of work.
Section 8(b) (1) of the Act makes it an unfair labor practice for a labor organiza-
tion or its agents to restrain or coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act, to form, join, or assist labor organizations and
to engage in other concerted activities for the purpose of collective bargaining or
their mutual aid or protection, or to refrain from such activities.
The complaint alleges that the Local Unions named therein, and the individuals
said to be acting as their agents, as well as all the individuals comprising Respondent
roving pickets are agents of all the Respondents and of each other. The General
Counsel's brief characterizes the purposes and activities of these various organiza-
tions, groups, and individuals, as a joint venture, or conspiracy, and that in pursuit
of it Respondents engaged in threats and acts of violence which coerced employees
of the charging coal Companies. If this is true, and if such threats and acts were
something more than isolated incidents, then Respondents and their agents must be
found to have violated the Act and rendered themselves subject to the Board's
remedial action. But this subject to one condition: that the Local Unions and the
roving pickets are labor organizations within the above definition. If these threats
and acts were those of individuals, or of organizations other than labor organiza-
tions, specifically if the two groups of roving pickets are not labor organizations,
then they are beyond the reach of the Act. It is conceded by all the parties that
Local Unions Nos. 8505, 8915, 5899, 7788, and 8161 are labor organizations within
the meaning of the Act. In their case the question is simply whether, by their
agents, they engaged in the coercion said to have been exercized against employees.
2. The activities of the roving pickets
During the latter part of August and the first part of September 1962, hundreds
of coal miners in the eastern counties of Kentucky and elsewhere, members of the
United Mine Workers of America, herein called UMW, received letters from its wel-
fare and retirement fund revoking their welfare cards. These cards had made them
and their families eligible for free treatment at the Miners Memorial Hospitals, a
chain of hospitals built some years before by UMW. These, and certain related
services, are financed and supported by a 40-cent royalty paid by the coal companies
to the fund for each ton of coal produced, as provided for in the UMW contract.
LOCAL UNION NO. 8505, ETC., DISTRICT 30, UMW 655
The miners to whom these letters were sent were employed by operators who were
not paying the royalty as required. The loss of the cards and the threatened closing
of the hospitals themselves, constituted the most recent of the adverse economic hap-
penings which have affected the area in question in recent years. The number of
miners employed in the larger mines has decreased, and the number of those working
in small truck mines has increased. Many miners who would otherwise be without
work have become employed in these mines. Some of them hire members of the
UMW but others do not. Some of those which are organized have failed to pay
the royalty provided for in the contract, and, apparently in some instances, the
agreed hourly wage.
Upon receipt of these letters from the welfare fund, meetings of miners and others
were held to discuss the situation. The General Counsel contends that the origin
of the roving pickets is to be found in two early meetings of the Respondent Local
Unions, and cites a meeting held in the McDowell School, at McDowell, in Floyd
County, testified to by witness Charles Bailey. Bailey, asked on direct examination
if he had attended a "local union" meeting in September 1962, replied that he had,
and fixed the date as September 6. He did not state, nor was he asked, what local
union this was, nor is there any other evidence to identify the local. He did say that
it was addressed by Odell Cavins, who was a mine committeeman of Local 7788,
but lest it be thought from this that the meeting was a meeting of Local 7788 it is
noted that Bailey himself was a member of Local 8167, which is not a respondent.
No reason appears why either Cavins or Bailey should have been present at a meeting
of a local other than his own. It is more reasonable to conclude, as I do, that this
meeting was one of the early meetings of the roving pickets, and not a meeting of any
local. It was attended by miners who were, inevitably, members of some local
union. A group admitted to be roving pickets, and not any of Respondent Locals,
held a meeting at the same place a week later, on September 12, at which several
hundred miners, employed and unemployed, their wives and children, were present.
The above is all the evidence there is in this record to support the contention in
the General Counsel's brief, that "shortly following this announcement [that welfare
cards were being withdrawn] Respondent Locals which are admittedly labor organi-
zations . . . and other local unions . held meetings for the purpose of discussing
this action . and ways to alleviate it, if possible. On or about September 6,
1962, the first such union meeting was held at McDowell, Kentucky." There is
much evidence in the record as to meetings of roving pickets, but there is none except
the testimony of Bailey, quoted above, that "ways to alleviate" the problem posed by
the suspension of the welfare cards were discussed at any meeting of any Respondent
Local. I find that the roving pickets were not formed in the womb of the Respond-
ents Local Unions.
There is uncontroverted evidence, however, that a certain few officers or com-
mitteemen of Local Unions were present and spoke at meetings of the roving pickets,
and assumed positions of leadership which they maintained throughout the picketing.
The visit of Cavins, mine committeeman for Respondent Local 7788, to the roving
pickets meeting of September 6, has been noted Robert Carver, president of Re-
spondent Local 8161, who was present at the September 12 meeting, testified that
during the meeting several presidents of local unions, including himself, Wayne
Griffith, president of Local 7788, and Ray Tackett, president of Local Union 8505,
met apart from the others and discussed what they could do to forward the objectives
of the larger meeting They decided that they could do nothing as officers of their
locals, but could and would help as individuals. Announcement to this effect was
made at the general meeting.
Another meeting of pickets and members of the general public was held on
about September 22 and addressed by Lee Howell, who, along with Berman Gibson,
later came to be the principal leader of the pickets. Neither Howell nor Gibson
was an officer of any union local, and Howell had not been a member since 1940.
Jim Thornsberry, president of Respondent Local 5899, also spoke at the meeting.
About 700 was collected from those present for the use of the pickets. Not long
thereafter, at another meeting, Thornsberry announced that he had collected
another sum, this time about $1,200, from members of Local 5899, by passing the
hat among them .2
2 This was the principal method of raising money. which was contributed not only by
miners but by members of the public generally Since coal mining was the principal
industry in the area, it was inevitable that the contributors should include numbers
of miners, members of one or another of the Respondent Local Unions. It is not con-
tended that Thornsberry collected this money at a local union meeting.
744-670-65-vol. 146-43
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above-described meetings are not untypical of subsequent meetings of pickets.
It is upon these meetings that General Counsel relies, along with other factors, to
establish that the roving pickets and their leaders were agents of Respondent
Local Unions. Leaving discussion of this contention until later, I turn now to the
consideration of the activities of the roving pickets as throwing light on General
Counsel's contention that they are labor organizations within the meaning of the Act.
The first picketing by these groups appears to have occurred on September 13,
1962, the day following the second meeting at the McDowell School. From then
on over a period from September 13, 19, and 20 to sometime in January 1963,
groups of roving pickets in cars and trucks descended on more than 200 locations,
most of them truck mines, in various counties in eastern Kentucky, including
Johnson, Pike, Knott, Perry, and Floyd. Their numbers varied, on occasion
reaching as high as 200 to 300 persons, including men and women. Most of the
men in the groups were members of the United Mine Workers, but some were not.
The miners were both employed and unemployed, though the record does not
indicate in what proportion. Upon arrival near a mine or mining operation the
cars would as a rule be parked on both sides of the highway, and a delegation would,
proceed up the road leading to the mine.
When it arrived at the mine it would seek out the mine operator and ask his
permission to speak to the employees. This was usually granted. The delegation
would ask the employees what wages they were getting, whether they were members
of the United Mine Workers, and, if so, if they were receiving welfare and other
benefits as provided for in the UMW contract. The delegation would describe the
conditions facing the miners in the Appalachian coal fields, emphasizing particularly
the loss of welfare cards, and ask the miners to quit work. Some did quit and join
the pickets; others did not. No picket signs were carried at any time by the roving
pickets, and when they left no picket was left behind.
The pickets rarely spoke to the mine operator other than to ask permission to
speak to the employees, although they did on occasion exchange comments as to
the sufficiency of existing rates of pay and the economic conditions prevailing
throughout the coalfields. These conversations when they occurred, were general
in nature and incidental to, and aside from, the conversations with the employees.
It was seldom that any request or suggestion was made concerning wages, hours,
or other conditions of employment by either the pickets or the employer.
The General Counsel, in support of his contention that the roving pickets are
labor organizations within the meaning of the Act because they "dealt with" em-
ployees concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work, cites an instance gleaned from the testimony
of J. A. Murphy, State police sergeant, and Willard Mitchell, post commander of
the State police, at Hazard, Kentucky, as to events occurring during the first week
of October, when they accompanied groups of pickets led by Howell and Gibson
on visits to various mines. On October 2, a group of about 150 pickets, accom-
panied by Murphy, visited a mine tipple in Kodak "for a few minutes," and then
disbursed for the day. On October 3, they assembled at the Miners' Memorial
Hospital in Hazard, in Perry County, and went from there to the Kenmont Coal
Company mine at Drift. There, a delegation of three men beaded by Gibson and
escorted by Murphy broke off from the larger group and went up to the tipple "to
talk to the members." There were six employees and the delegation asked them to
join the pickets. None did. On October 4, Murphy accompanied the same group
of pickets from their assembly point at the Hazard Hospital to the A. C. Riddle
mine, in Knott County. There was a private property sign about a mile and a half
from the mine and Murphy stopped the group there while a delegation of four,
accompanied by a trooper, went to the top of the hill and "talked to the workers
up there." From there the group went to the Walters' mine where a delegation of
12, led by Lee Howell and accompanied by Murphy went to the entrance of the
mine. There Howell asked Walters if he would call the men out of the mine so
that the delegation could talk to them. Walters acceded to the request and sent
a messenger into the mine. While waiting for the miners to emerge, Howell asked
Walters "if he would like to work his men under a U.M.W. contract." Walters said
he would not, and this was all that was said between them When the miners ap-
peared, Howell asked them if they would work under a UMW contract, and they
all said they would not. The delegation then left.
Murphy was with the group again on the following day, but could remember
nothing "of any significance." On the next day, October 6, the pickets assembled at
the Hazard Hospital numbered about 300. They drove in cars and trucks to the
Smith Coal Company mine at Combs, Kentucky. There the caravan parked at the
property line and a delegation led by Gibson went up to the tipple and "talked to the
employees."
LOCAL UNION NO. 8505, ETC ., DISTRICT 30, UMW 657
Sergeant Murphy traveled with the roving pickets every day until the latter part
of October, and he kept a logbook in which he and Sergeant Mitchell made entries
every night to see that they had "all the entries in there that should be in," and
from which he refreshed his memory while testifying. He recounted incidents and
instances in addition to the above, but they related for the most part to mass
picketing and threats of violence. All the conversations from which information
can be derived as to with whom the pickets were dealing, whether with the mine
operators or the miners, are set forth above. From Murphy's testimony as to events
taking place over a period of several weeks covering several counties, and involving
several hundred individual roving pickets and their spokesmen, the General Counsel,
in his brief, selects for citation in support of his contention that the roving pickets
"dealt with" employees, only the occurrence on October 4, at the Walters' mine,
where Howell, while waiting for the miners to come up out of the mine so that he
might talk with them, asked Walters, in an aside, if he would like to work under a
UMW contract.
Willard Mitchell, post commander of the State police at Hazard, who accompanied
groups of roving pickets practically every day in Perry County, testified to events
similar to those related by Murphy. The General Counsel's brief erroneously states
that Mitchell "observed that at the various installations, the pickets discussed with
the operators wages, welfare and hospital cards." Mitchell's testimony, however,
was the contrary:
Q. Now, were you present when any of these men talked to any of the men
or the coal operators?
A. Yes, sir, I was present.
* * * * *
Q. On these occasions that they would talk to an operator what would they
talk about?
A. When they talked to the men?
Q. Yes.
A. Wages, welfare, hospital cards. [Emphasis supplied.]
There is nothing in Mitchell's testimony, similar in all essentials to that of
Murphy, that the roving pickets on any occasion talked with the mine operators
about wages, welfare, or hospital cards, grievances, or any other condition of em-
ployment. Nor is there any convincing testimony by mine operators themselves that
they did. The consistent practice was to ask the operators for leave to speak to the
pickets. This was almost the entire burden of the conversations between the pickets
and the operators. An exception should perhaps be made of the events at the
Charlie Combs' mine. Combs, in addition to operating the Jenny Lind Coal Com-
pany and the Grand Coal Company, is sheriff of Perry County. According to Post
Commander Mitchell, when the roving pickets visited Combs' property during the
first week in October, they used abusive language to Mine Operator Combs, who, as
Sheriff Combs of Perry County, arrested several of 'them. Combs, also, along with
his deputies, was a daily traveler with the roving pickets in Perry County. His
testimony, however, like that of Murphy and Mitchell, is to the effect that the
pickets talked with the miners, not to the operators.
Ira Combs, superintendent of the Kenmont Coal Company, however, testified that
in October 1962, when a group of roving pickets visited the Kenmont mine, Howell,
who led the group, asked him to shut down his tipple in order to force the companies
to pay the 40 cents a ton royalty, and he said he could not do that. Combs had no
authority to shut down the mine or to act for the Company in any respect pertaining
to wages, hours, or welfare benefits.
When the pickets left a location, usually a short while after arriving, no picket
was left behind. Hence, such operations as did shut down while the pickets were
present, frequently, if not as a rule, resumed operations upon their departure.
In December 1962 and January 1963, two or three meetings took place between
representatives of the roving pickets and representatives of the mine operators, at
which the termination of the picketing was discussed. Each of these meetings was
instigated by the operators, and not by the pickets. One meeting, that was on
December 7, seem to have resulted in the cessation of picketing in Pike County.
While during the course of the meeting the conditions which had brought about the
picketing were discussed but only in general terms. No suggestion, request, or
offer pertaining to the welfare fund or wages, hours, or other specific working con-
ditions, was made by either the operators or the pickets. Such a general discussion,
limited to the cessation of picgeting, and brought about by the operators, not by the
pickets, cannot be said to be evidence that the roving pickets existed "for the pur-
pose of dealing with employers."
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Most of the record in this case, aside from evidence designed to show that the
roving pickets are labor organizations, is taken up with the asserted blocking of
ingress to and egress from mine property, and threats and acts of violence to mine
employees, by the roving pickets in contravention of Section 8(b) (1) (A) of the
Act. I make no finding on these matters in view of my conclusions, hereinafter
drawn.
B. Conclusions
1. As to Respondent Local Unions
There is no evidence in this record that Respondent Locals Nos. 8505, 8915, 5899,
7788, or 8161, or any of them, directly or indirectly financed or aided by any mate-
rial means the activities of the various persons named in the complaint as their
agents, or so aided either of the two groups of roving pickets. The groups were
financed solely by the contributions and assistance of individual miners and members
of the general public. Neither is there any evidence that any local union permitted
the use of its meeting place or other facilities by any of its alleged agents or by the
roving pickets. Nor is there discernible any moral support afforded by the roving
pickets by ways which suggest themselves, such as the circulation of literature,
assistance in procuring meeting places, or the use of communications media such as
television or radio, though each was used from time to time by the roving pickets,
or by the passage of resolutions in local meetings.
The only evidence of any connection between Respondent Local Unions and Re-
spondent roving pickets is (1) that many of the roving pickets, but by no means all,
were at one time or another members of the United Mine Workers and hence, per-
force, members of its local organizations including those named as Respondents;
and (2) that certain officers of Respondent Locals were active among the roving
pickets.
It is upon the second ground that the General Counsel relies to establish the re-
sponsibility of Respondent Locals. Hence, since Odell Cavins, a mine committee-
man in Local No. 7788 was present at the first meeting of the roving pickets at the
McDowell High School on September 6, and Roy Carver, Wayne Griffith, and Ray
Tackett, presidents, respectively, of Respondent Locals Nos. 8161, 7788, and 8805,
were present at the second meeting on September 12 at the same place, and since
Jim Thornsberry, president of Local No. 5899, collected money for the roving
pickets and presented it at a meeting of pickets, it follows, in the General Counsel's
rationale, that Respondent Locals Nos. 8805, 5899, 7788, and 8161 are responsible
for their activities and hence for the unfair labor practices said to have been com-
mitted by the two groups of roving pickets in which these persons were active .3
There is no evidence that any officer of Respondent Local No 8915 was present
at the second meeting of the roving pickets on September 12. The presidents of
the other Respondent Locals, though they were present and later became active
in the roving pickets, specifically stated to the meeting that although they would
help in any way they could they would be doing so as individuals, and not as local
officers. I am unable to believe that they forfeited forever their right to act as
individuals when they were elected to union office. In my opinion the idea that
Respondent Locals are automatically bound by the activities of certain of its officers,
in the absence of other evidence of agency, is fallacious. There is no room in it
for spontaneous, individual, causation. It is noteworthy that Howell, the acknowl-
edged leader of one group of roving pickets, was not only not an officer of any local
union but, according to his own testimony, had not been a member of the UMW
since 1940, and that Gibson, the acknowledged leader of the other group, was not
an officer of any local union and does not appear even to have been a member of
any of the Respondent Locals.
As has been stated the picketing was prompted by the sudden cancellation of
the welfare program as to persons employed in mines which failed to pay the 40-cent
royalty as provided in the UMW contract. Most, though not all, of these pickets
were or had been members of the United Mine Workers, and many if not most of
them personally affected by the cancellation of the welfare benefits. They needed
no urging from their local unions to protest 4
3 On the General Counsel's theory of the case, it is difficult to understand why District 30
should not be named as a respondent since a charge was filed as to it (as well as to the
United Mine Workers) and since, as the General Counsel's brief relates, C E. Beane,
president of District 30, also addressed the meeting on September 0 at which Cavins spoke.
* There Is, In fact, some Indication that the picketing was contrary to the wishes of the
officials of some of the locals, as well as to the wishes of District 30.
LOCAL UNION NO. 8505, ETC ., DISTRICT 30, UMW 659
The record shows that there are various UMW locals in eastern Kentucky not
named in the complaint . I can only conclude that they are not named because
investigation did not reveal that any of their officers were active among the roving
pickets, and hence do not conform to the General Counsel 's theory of the case. I
regard that theory as Procrustean . It seems to me more likely that the officers of
some locals , as well as many rank-and-file miners , did not take part in the picketing
simply because they were not employed in mines which were defaulting in the pay-
ment of welfare benefits, and so were not personally moved to protest, and that
officers of other locals who were affected personally or felt themselves threatened,
did take part. The complaint names only a few of them . I have difficulty believing
in a conspiracy where so many eligible conspirators are absent.
2. As to Respondents roving pickets
The primary question to be decided here is whether the two groups of roving
pickets were labor organizations within the meaning of the Act. That they were
organizations of some sort is apparent . Though amorphous, they were identifiable
groups with leaders, and though they had no regular meeting place or time they
nevertheless did meet and they did function in a coherent fashion. But whatever
kind of organization they may have been , they were not labor organizations within
the meamng of the Act unless they existed "for the purpose in whole or in part, of
dealing with employers concerning grievances , labor disputes , wages, rates of pay,
hours of employment or conditions of work."
The critical words here are- "dealing with employers ." It is apparent from this
record that the pickets made no attempt to bargain with mineowners concerning
wages or other conditions of employment , that they were not authorized to do so,
that they did not have the necessary expertise, and that , in any event , the United
Mine Workers was their bargaining representative with an existing contract with
most of the mines. But "dealing with " is a broader term than "bargaining with,"
as the Supreme Court pointed out in Cabot Carbon ,5 where the Court held to be a
labor organization a plant committee which, although it did not attempt to negotiate
a contract , nevertheless did make to the employer proposals and requests concerning
such matters as seniority , job classification , job bidding , work schedules , wage cor-
rections , and other working conditions , in meetings at which the employer's plant
officials participated in the discussion of these matters and frequently granted the
committee 's requests.
It may be conceded that for an organization to "deal with" an employer it need
not go to the extent the committee did in Cabot Carbon . But there must be at
least some attempt to discuss or treat with the employer, or to persuade or petition
him. There was nothing of the sort here. The testimony of General Counsel's
own witness, Police Officers Murphy and Mitchell , the most circumstantial in the
record, fails to show any attempt by the roving pickets or their spokesmen to persuade
the mine operators to any course of action whatever , or even to discuss with them
matters of wages or other working conditions . Their evidence makes it clear that
the whole thrust of the pickets' activity was toward the employees themselves. It
is not much short of being literally true that the pickets talked with the mine oper-
ators only to ask them for permission to speak to their employees . Isolated instances
of vague suggestions that wages should be higher or that general working conditions
in the coalfields should be improved , in some unspecified way at some unappointed
time and by some unnamed agency, are not sufficient to show a purpose to deal
with employers concerning the matters enumerated in the definition in Section 2(5)
of the Act . For the definition defines a "labor organization" not as one which in
fact deals with employers , but one which exists for the purpose of dealing with
them Occasional "dealing" is not enough (even if it existed here ) unless it is so
widespread as to lead reasonably , as a matter of evidence , to the conclusion that
this was the purpose of its existence.
The complaint should be dismissed upon all the above grounds.
CONCLUSIONS OF LAW -
1. Respondent Local Unions Nos. 8505 , 8915, 5899 , 7788 and 8161 , District 30,
United Mine Workers of America, have not violated Section 8 (b) (1) (A) of the
Act
2. Respondent roving pickets ( group A) and Respondent roving pickets (group
B) are not labor organizations within the meaning of Section 2 (5) of the Act.
5 N L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U S 203 , reversing
256 F. 2d 281 (117 NLRB 1633)
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
hereby recommended that the consolidated complaint herein be dismissed in its
entirety.
International Association of Heat and Frost Insulators and
Asbestos Workers, Local #84, AFL-CIO [The Edward R.
Hart Company], Respondent and Randall Lutz, Charging
Party
International Association of Heat and Frost Insulators and
Asbestos Workers, Local 484, AFL-CIO [The Edward R.
Hart Company], Respondent and John R. Lutz, Charging
Party. Cases Nos. 8-CB-680-1 and 8-CB-680-2. April 6, 1964
DECISION AND ORDER
On August 6, 1963, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted herein.
1. We agree with the Trial Examiner that the Respondent Local
operated an exclusive hiring system in an unlawful fashion by placing
only local members' names on the register for referral and clearing
other persons only after all members of Respondent Local were em-
ployed, and that it thereby violated Section 8(b) (1) (A) and (2) of
the Act.
2. Randall and John Lutz applied for work in Akron, Ohio, to
Riddle, secretary of The Edward R. Hart Company, at a time when
job openings were available and were told to secure a clearance from
Rice, Respondent's business agent. When Riddle, on behalf of the
two brothers, requested that Rice clear them, Rice stated that he did
'Respondent 's request for oral argument is hereby denied as the record . the exceptions,
and brief adequately present the issues and the positions of the parties.
146 NLRB No. 85.