Mine Workers (Boich Mining)

National Labor Relations Board - Board Decisions

Sep 23, 1992

308 N.L.R.B. 953 (N.L.R.B. 1992)

953
308 NLRB No. 147
MINE WORKERS (BOICH MINING)
1 301 NLRB 872.
2 Unless otherwise noted, all dates refer to 1992.
3 Boich Mining Co. v. NLRB, 955 F.2d 431, 433.
4 We therefore deny the request by Respondents International and
District 6 that we reopen the record to receive further evidence con-
cerning the relationship between Boich and Aloe Coal. The court of
appeals has decided that issue and, on the basis of its decision, has
ordered the Board to find that the Act has been violated as alleged.
The only task before us, therefore, is to determine and apply the ap-
propriate remedy.
Indeed, it is not entirely clear whether the Respondents are asking
the Board simply to take further evidence in order to explore more
fully the ramifications of the court’s legal analysis, or whether they
also mean to imply that, after taking additional evidence, the Board
would be free to come to a conclusion contrary to that reached by
the court and, as a result, to fail to comply with the court’s order.
In either event, the Respondents’ request is without merit because
the court has spoken on the issue of the relationship between the two
employers.
5 Thus, in one passage, the court stated that ‘‘on August 4, 1989,
Boich filed an unfair labor practice charge against UMW.’’ 955 F.2d
at 433. Given that Boich filed separate charges against all three Re-
spondents on that date, it would be reasonable to interpret the court’s
use of ‘‘UMW’’ as standing for all three unions. Elsewhere, how-
ever, the court found that ‘‘[t]he UMW, is District 6 and its Local
No. 7449 are labor organizations,’’ ibid., which might indicate that
the court considered, ‘‘the UMW’’ as synonymous with ‘‘the Inter-
national,’’ and not encompassing the District and the Local.
6 Indeed, none of the parties seems to contend otherwise.
7 The International does not deny that, under the law of the case,
it violated Sec. 8(b)(4)(i) and (ii)(B) by calling the strike against
Boich. In response to the remand, the International argues only that
the Board should reopen the record to reexamine the single-employer
issue. We have already rejected that argument. See fn. 4, supra.
8 Member Oviatt finds it unnecessary to rely on the failure of
Local officials to report for work.
9 The Local, in fact, does not argue that it should not be found
in violation; it filed no position statement in response to the court’s
remand.
International Union, United Mine Workers of
America and Boich Mining Company
District 6, United Mine Workers of America and
Boich Mining Company
Local Union No. 7449, United Mine Workers of
America and Boich Mining Company. Cases 8–
CC–1420–1, 8–CC–1420–2, and 8–CC–1420–3
September 23, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 27, 1991, the National Labor Relations
Board issued a Decision and Order1 finding that the
Charging Party, Boich Mining Company, and Aloe
Coal Company constituted a single employer, and
therefore that the Respondent Unions did not violate
Section 8(b)(4)(i) and (ii)(B) of the Act as alleged by
striking and picketing Boich in support of a strike at
Aloe Coal. The Board dismissed the complaint.
Thereafter, Boich petitioned the United States Court
of Appeals for the Sixth Circuit for review of the
Board’s Order. On January 31, 1992,2 the court issued
a decision reversing the Board’s finding that Boich and
Aloe were a single employer, and finding instead that
Boich was a neutral employer with respect to Aloe.
The court granted the petition for review and remanded
the case to the Board ‘‘with instructions to reinstate
the complaint, to find that the United Mine Workers
(UMW) violated [Section] 8(b)(4)(i) and (ii)(B) by
striking and picketing Boich, and to provide an appro-
priate remedy.’’3
On April 27, the Board notified the parties that it
had accepted the court’s remand and would take appro-
priate action consistent with the remand. On May 18,
Respondent District 6 requested permission to submit
a position statement regarding the liability of District
6 in this case. On May 22, the Board announced that
any party might file a position statement with regard
to the issues raised by the remand. Position statements
were filed by Respondents UMWA (the International)
and District 6, and by Boich and the General Counsel.
The General Counsel filed a response to the Respond-
ents’ position statements.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
Although we accept the court’s decision and instruc-
tions as the law of the case,4 our task on remand is
complicated somewhat by the court’s instruction to us
to find that the United Mine Workers (UMW) violated
the Act. There are three Respondents in this case—the
UMW International, District 6, and Local 7449. We
are confident that the court’s reference to the ‘‘UMW’’
was intended to apply at least to the International
Union. It is not as clear, however, whether the court
meant for the Board to find all three Respondents in
violation.5 Nevertheless, we infer that that was the
court’s intention.6 The General Counsel and Boich
have consistently argued that all three labor organiza-
tions violated the Act by striking and picketing Boich.
If the court meant that only the International had acted
unlawfully,7 it gave no indication why it came to that
conclusion, or why neither the District nor the Local
should be found in violation. That omission is particu-
larly significant in the case of Local 7449. According
to the unrebutted testimony, the strikers’ picket signs
identified Local 7449 as the striking union, and no of-
ficial of Local 7449 reported for work during the
strike.8 (The Local’s president, Larry Trushel, was a
Boich employee.) The record thus establishes that
Local 7449 both endorsed and actively participated in
the strike and picketing. See, e.g., Mine Workers Dis-
trict 30 (TCH Coal), 278 NLRB 309 (1986), enfd. 819
F.2d 651 (6th Cir. 1987). There would seem to be no
reason, on this record, for the court not to conclude
that the Local had violated Section 8(b)(4)(i) and
(ii)(B), and we infer that it did draw that conclusion.9
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 District 6 argues that it should not be found guilty of a viola-
tion, because its only connection with the strike consisted of passing
on to the Local the International’s instruction to Local 7449 to strike
against Boich. District 6 contends that it had no authority to, and
did not, authorize the strike or direct members of the Local to take
part, and further that it did not recommend to the International that
a strike be called. According to the District, such limited involve-
ment does not constitute adequate grounds for finding a violation of
Sec. 8(b)(4)(B). In arguing that a violation should be found on the
part of District 6, the General Counsel and Boich cite testimony to
the effect that the District directed Local 7449 to engage in the
strike and, in any event, ratified and condoned the strike by passing
on the International’s instructions and by not disassociating itself
from the strike.
11 Sec. 8(b)(4)(i)(B) forbids unions and their agents ‘‘to engage in,
or to induce or encourage any individual . . . to engage in, a strike’’
for secondary purposes.
12 Sec. 8(b)(4)(ii)(B) forbids unions and their agents ‘‘to threaten,
coerce, or restrain any person engaged in commerce or in an indus-
try affecting commerce’’ for secondary purposes.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
We also infer that the court intended us to find a
violation on the part of District 6. As we have noted,
the court ordered the Board to find that the Act had
been violated by ‘‘the United Mine Workers (UMW).’’
That term could reasonably be construed to mean ei-
ther the International Union alone (see fn. 5, supra), or
all three Respondents together; we think it highly un-
likely that the court meant it to refer to two, but not
all three, of the Respondents. Having found that the
term was intended to include the International and the
Local, we deduce that it was meant to refer to the Dis-
trict as well. In addition, although the record indicates
that District 6’s role in these events was chiefly, or
even entirely, as a conduit for the International’s strike
message to the Local,10 the words ‘‘induce or encour-
age’’ in Section 8(b)(4)(i) are broad enough to include
‘‘every form of influence and persuasion.’’ Electrical
Workers IBEW Local 501 (Samuel Langer) v. NLRB,
341 U.S. 694, 701–702 (1951).11 Successfully inducing
a work stoppage against a neutral employer constitutes
a violation of Section 8(b)(4)(ii)(B) as well. Iron
Workers Local 597 (Linbeck Construction), 208 NLRB
524 (1974).12 In light of these and similar authorities,
we think it probable that the court concluded that Dis-
trict 6 should be found to have acted unlawfully.
CONCLUSIONS OF LAW
1. The Respondents, International Union, United
Mine Workers of America; District 6, United Mine
Workers of America; and Local Union No. 7449,
United Mine Workers of America, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. Boich Mining Company and Aloe Coal Company
are persons and employers engaged in commerce and
in an industry affecting commerce within the meaning
of Section 2(2), (6), and (7) and Section 8(b)(4) of the
Act.
3. The Respondents have engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
The consolidated complaint is reinstated.
IT IS FURTHER ORDERED that the Respondents, Inter-
national Union, United Mine Workers of America;
District 6, United Mine Workers of America; and
Local Union No. 7449, United Mine Workers of
America, their officers, agents, and representatives,
shall
1. Cease and desist from
(a) Engaging in, or inducing or encouraging any in-
dividual employed by Boich Mining Company or by
any other person engaged in commerce or in an indus-
try affecting commerce to engage in, a strike or a re-
fusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services, where an object thereof is to
force or require Boich or any other person to cease
doing business with Aloe Coal Company.
(b) Threatening, coercing, or restraining Boich or
any other person engaged in commerce or in an indus-
try affecting commerce, where an object thereof is to
force or require Boich or any other person to cease
doing business with Aloe Coal Company.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post in conspicuous places at their business of-
fices and meeting halls copies of the attached notice
marked ‘‘Appendix.’’13 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being duly signed on behalf of the Respondents by
their authorized representatives, shall be posted by the
Respondents immediately upon receipt and maintained
for 60 consecutive days in conspicuous places includ-
ing all places where notices to members are customar-
ily posted. Reasonable steps shall be taken by the Re-
spondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail sufficient copies of the notice to
the Regional Director for posting by Boich Mining
Company and Aloe Coal Company, if those companies
are willing, at all locations where notices to employees
are customarily posted.
955MINE WORKERS (BOICH MINING)
(c) Notify the Regional Director in writing within 20
days from the date of receipt of this Order what steps
the Respondents have taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT engage in, or induce or encourage any
individual employed by Boich Mining Company or by
any other person engaged in commerce or in an indus-
try affecting commerce to engage in, a strike or a re-
fusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services, where an object thereof is to
force or require Boich or any other person to cease
doing business with Aloe Coal Company.
WE WILL NOT threaten, restrain, or coerce Boich
Mining Company or any other person engaged in com-
merce or in an industry affecting commerce, where an
object thereof is to force or require Boich or any other
person to cease doing business with Aloe Coal Com-
pany.
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA; DISTRICT 6,
UNITED MINE WORKERS OF AMERICA;
AND LOCAL UNION NO. 7449, UNITED
MINE WORKERS OF AMERICA