UMW, District 2

National Labor Relations Board - Board Decisions

Nov 8, 1968

173 N.L.R.B. 665 (N.L.R.B. 1968)

UMW, DISTRICT 2
United Mine Workers of America ; United Mine
Workers of America , District 2: and United Mine
Workers of America, Local 6796 (Mears Coal
Company) and Southern Labor Union
United Mine Workers of America, and United Mine
Workers of America, District 2 and Edward Mears,
Charles Mears , Murray Martin and Earl Bence,
Partners, d/b/a Mears Coal Company
United Mine Workers of America, and United Mine
Workers of America, District 2 and Southern
Labor Union . Case 6-CB-1452, 6-CB-1463,
and 6-CB-1465
November 8, 1968
DECISION AND ORDER
BY CHAIRMAN MC CULLOCH AND MEMBERS
FANNING AND BROWN
On August 30, 1968, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled
proceeding, finding that the Respondents had engaged
in and were engaging in certain unfair labor practices
and recommending that they cease and desist there-
from and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions to the Trial Exam-
iner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions, and the entire
record in these cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial Exam-
iner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the national Labor Relat-
ions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondents, United Mine Workers of America;
United Mine Workers of America, District 2; and
United Mine Workers of America, Local 6796, their
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
665
HARRY R. HINKES , Trial Examiner: The complaint herein
was issued on March 29, 1968, pursuant to a charge filed on
December 18, 1967, by Southern Labor Union, hereinafter
referred to as SLU, and served on all Respondents on
December 18, 1967, a second charge filed on January 30,
1968, by Mears Coal Company and served on Respondent
United Mine Workers of America, hereinafter referred to as
UMW and Respondent United Mine Workers of America,
District 2, hereinafter referred to as District 2, on January 31,
1968, and a third charge filed by SLU and served on
Respondents UMW and District 2 on February 1, 1968
Respondents UMW and District 2, as well as Respondent
United Mine Workers of America, Local 6796, hereinafter
referred to as Local 6796, are alleged to have engaged in unfair
labor practices affecting commerce by restraining and coercing
employees of Mears Coal Company and other employers in the
exercise of the rights guaranteed them in Section 7 of the
National Labor Relations Act, as amended, in violation of
Section 8(b)(1)(A) of the Act. By answer duly filed Respon-
dents denied the commission of any unfair labor practices.
A hearing was held before me at Indiana, Pennsylvania, on
May 14 and 15, 1968, at which all parties were represented
and were afforded full opportunity to participate , examine
witnesses , and adduce relevant evidence. Briefs have been
received from each of the parties and have been given careful
consideration.
Upon the entire record in this proceeding I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Mears Coal Company, a partnership with its principal office
at Marion Center, Pennsylvania, is engaged in the strip mining,
processing, and nonretail sale of coal. Within the 12-month
period immediately preceding the issuance of the consolidated
complaint, Mears sold the shipped coal valued in excess of
$50,000 directly to points outside the Commonwealth of
Pennsylvania from its facilities within the Commonwealth.
Penn Hill Coal Corporation (herein called Penn Hill), a
Pennsylvania corporation with its principal place of business in
Indiana, Pennsylvania, is engaged in the mining and nonretail
sale of coal. Within the 12-month period immediately preceding
the issuance of the consolidated complaint, Penn Hill sold coal
valued in excess of $50,000 to Mears.
K & S Coal Company, Inc , Edward Mears, Charles Mears,
Murray Martin and Earl Bence, partners, d/b/a Dixon Run Coal
Company (herein called Dixon Run), a partnership with its
principal place of business at Marion Center, Pennsylvania, is
engaged in the mining and nonretail sale of coal. During the
12-month period immediately preceding the issuance of the
consolidated complaint, Dixon Run sold coal valued in excess
of $50,000 to Mears.
Edward Mears , Charles Mears, Murray Martin, Earl Bence,
Rocco Yanity, Anthony Yanity and Casmer Yanity, partners,
d/b/a/ MY Coal Company (herein called MY), a partnership
with its principal place of business at Indiana, Pennyylvania, is
engaged in the mining and nonretail sale of coal. During the
173 NLRB No. 100
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12-month period immediately preceding the issuance of the
consolidated complaint, MY sold coal valued in excess of
$50,000 to Mears.
Joseph Peles and Nestor Peles, partners, d/b/a Peles
Brothers Coal Company (herein called Peles Brothers), a
partnership with its principal place of business at Glen
Campbell, Pennsylvania, is engaged in the mining, processing,
and nonretail sale of coal. During the 12-month period
immediately preceding the issuance of the consolidated com-
plaint, Peles Brothers sold coal valued in excess of $50,000
directly to points outside the Commonwealth of Pennsylvania.
Edward Mears, Charles Mears, Murray Martin, Earl Bence,
Harold Leasure, Russell Herby, and Robert E. Gilbert,
partners, d/b/a Copper Valley Coal Company (herein called
Copper Valley), a partnership with its principal place of
business at Clymer, Pennsylvania, is engaged in the mining,
processing, and nonretail sale of coal. During the 12-month
period immediately preceding issuance of the consolidated
complaint, Copper Valley sold coal valued in excess of
$50,000 directly to points outside the Commonwealth of
Pennsylvania.
John Peles, Edward Mears, Charles Mears, Earl Bence, and
Murray Martin, partners, d/b/a Chestnut Ridge Mining Com-
pany (herein called Chestnut Ridge), a partnership with its
principal place of business at Glen Campbell, Pennsylvania, is
engaged in the mining and nonretail sale of coal. During the
12-month period immediately preceding issuance of the
consolidated complaint, Chestnut Ridge sold coal valued in
excess of $50,000 to Mears.
Mears, Penn Hill, Dixon Run, MY, Peles Brothers, Copper
Valley, and Chestnut Ridge are now, and have been at all times
material herein, employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondent's answer admits, and I
find that the UMW, District 2 and Local 6796 are labor
organizations within the meaning of Section 2(5) of the Act
The parties have stipulated that for the purposes of this
proceeding, UMW and District 2 are to be considered as one
and the actions and responsibilities of one are to be considered
the actions and responsibilities of the other.
III. THE UNFAIR LABOR PRACTICES
A. The Events of December 17
The SLU called a meeting of all of its area members,
consisting of seven local unions which have collective-
bargaining agreements with Mears, Penn Hill, Dixon Run, MY,
Peles Brothers, Copper Valley, and Chestnut Ridge, for
Sunday, December 17, at 2 p.m. at the Consolidated School
building in Home, Pennsylvania. Melicher Joseph Plavi, an
employee of Chestnut Ridge and vice president of SLU Local
253, picked up the keys for the school building and drove
there shortly after 1 o'clock. Upon arrival he saw about 100
cars and several hundred United Mine Workers' members in the
road and parking area around the school building. He unlocked
the door and went into the building. He became frightened and
left to call Bill Bell, a vice president of SLU. Although Plavi
testified that he did not recognize any officials of UMW there,
he added that he saw one Kanapic whom he assumed was a
UMW local president as well as Tom Simpson whom the parties
have stipulated to be the president of Respondent Local 6796
and an agent thereof. As Plavi was leaving the school, Kanapic
told him "Joe, you better not have this meeting." When Plavi
replied that he intended to hold it, someone else, unidentified,
said "Goddamned if you will."
Plavi returned to the school a short time later and this time
saw some 20 SLU men there. As Plavi ascended the nine steps
from the ground to the school door, Simpson "hollered" "we
will run you back to Tennessee with the rest of the bunch."
Others in the crowd also hollered but someone told him to "go
ahead and hold your meeting." Plavi unlocked the school door
and 8 or 10 of the SLU men walked in Plavi remained on the
outside platform at the top of the steps holding a tape recorder
in his hands. Some 12 or more men started crowding him and
"pawing" at him. Someone unplugged his tape recorder, two
men grabbed him while another hit him in the back of his
head. Although Plavi was unable to identify any of the 12 men
that crowded around him at the time, he did recognize Mike
DeGretto, stipulated to be an international representative of
UMW and director of organization of District 2 and an agent of
both Respondents, standing on the fourth step up. Simpson
was about 25 feet to the right of Plavi. Plavi fell to the floor
from the force of the blow and remembers but indistinctly the
events which followed. It appears that he got up, went to his
car, drove some 2'h miles to the home of Edward Mears who
then took him to a hospital where Plavi remained for 9 days.
Later he required an additional 7 days hospitalization and
since then has worked only part time. Plavi further testified
that his suit coat and shirt were ripped from the top to the
bottom during the assault upon him at the top of the school
steps.
William Rice, an employee of Copper Valley and president
of SLU Local 245, also came to the Consolidated School on
December 17. His testimony was essentially corroborative of
Plavi's. He added that two men whom he recognized as UMW
organizers spoke to him at the school and told him there
would not be any other union in the area, only the UMW He
further testified that men in the crowd told him not to go into
the school building and hollered "scab." He entered the
school, stayed for a few rrunutes, and came out again. As he
returned to the platform, he saw someone "clawing" at Plavi.
Then he saw Plavi hit on the head and fall down. When Plavi
got up, he told Rice there would be no meeting. Some voices
in the crowd asked if anyone else wanted some of the same
and Tom Simpson said he was going to send them all down
South with the SLU organizers.
Simpson, in his testimony, did not deny the statements
attributed to him by Plavi and Rice.
Charles Bash, a SLU member at Peles Brothers, also
corroborated the foregoing testimony. He, too, came to the
school shortly before 2 p.m. on December 17, and found such
a large crowd there that he had to park some 200-300 feet
away. These were UMW workers and among them were
DeGretto, Simpson, and Telk, stipulated to be a representative
and agent of District 2. After a while he saw some SLU men
standing and he went up to them. When Plavi unlocked the
school door, he and some of the SLU men started to enter.
Four or five UMW workers standing at the foot of the steps
said, "Don't let them go in" and then added "Oh, let them go
in they aren't going to have a meeting anyhow." Bash and the
other men entered the school building but as they heard noises
becoming louder outside came out again and saw Plavi being
UMW, DISTRICT 2
hit and falling down. Bash could see DeGretto standing near
the foot of the steps at that time but heard no one objecting to
Piavi being struck or attempting to stop anyone from hitting
him. On the contrary, he heard someone in the crowd say "Go
ahead, give it to him" and the man that stuck Plavi said,
"There is your follower. Does anybody want to step out and
take it?" After a couple of minutes Plavi got up and told the
SLU men to go home, "there won't be no meeting held." Bash
drove away in his car but shortly thereafter drove back again
and found 100 to 200 men still standing around.
Simpson testified that on December 17, Local 6796 held a
Christmas party in Clymer, Pennsylvania. There he heard that
the SLU was going to have a meeting at the Home Station,
otherwise referred to as the Consolidated School at Home,
Pennsylvania. He decided to go over to talk to the SLU men
about the United Mine Workers of America. He denied that
there was any discussion among the UMW workers at the
Christmas party concerning the SLU meeting and denied
knowing whether any of them followed him to the school
from Clymer He adirutted, however, that maybe one carload
of his members showed up at the Consolidated School He
categorically denied taking 47 of his fellow members to the
school. Corporal Thomas Hudock of the Criminal Investigation
Unit of the Pennsylvania State Police, assigned to investigate
the December 17 incident at the Consolidated School, testified
that he interviewed Simpson on December 29, and that
Simpson told him that they had a short meeting at Clymer and
that 47 of his people went with him to the school. In addition,
Stanley Yackuboskey, a member of Local 6796, testified that
at the meeting at Clymer a motion was made by Simpson to go
down to the Consolidated School The motion was seconded
and it was voted to go down He estimated that "around 30
and maybe a few more than that" went to the school. He, too,
saw Plavi being hit by someone and falling down Despite the
denials of Simpson, I credit the testimony of Corporal Hudock
and Yackuboskey and find that at the instigation of Simpson,
Local 6796 at its December 17 Christmas party in Clymer,
Pennsylvania decided to go down in a group to the Consoli-
dated School and did so.
Counsel for the Respondents, nevertheless, urges the dis-
missal of this allegation of the complaint citing the testimony
of DeGretto to the effect that he invited the SLU men to hold
their meeting in the school building and that no one impeded
the ingress or egress of the SLU men on December 17 As for
the assault on Plavi, he cites the lack of proof that it was
committed by a member of any of the Respondents Moreover,
he argues that Plavi incited the assemblage in the immediate
area of the platform when he offered to use the tape recorder
to take the statements of anyone who wished to give it.
Finally, he cites the testimony of DeGretto to the effect that
he told the crowd of men to leave and that they thereupon did
leave the school grounds DeGretto, however, could not
remember whether he told the UMW workers to leave before
or after Plavi had been struck. No one corroborated DeGretto's
testimony in this respect. Indeed, witness Bash denied hearing
any one trying to prevent the assault on Plavi, witness
Yackubosky, a United Mine Worker, saw neither DeGretto nor
Simpson make any effort to disperse the crowd, and Corporal
Hudock testified that although DeGretto told him that he
invited Plavi to have his meeting, DeGretto said nothing to him
about trying to stop anything or to disperse the men that had
congregated around the school building I conclude and find,
therefore, that neither DeGretto nor Simpson made any effort
667
to prevent the assault on Plavi or to disperse the United Mine
Workers that had assembled around the school grounds, at
least, until after the SLU men had left.
B The Events of January 30, 1968
Mears operates a cleaning plant, tipple, scale house, and
railroad siding in Dixonville, Pennsylvania. Coal is trucked into
this location where it is weighed, processed, and loaded onto
railroad cars for shipment The only way the trucks delivering
the coal to the Mears operation can enter the operation is to
travel by way of State Route 223, to where it intersects with
Township Road. The Mears scale house is located on the
Township Road 80 to 100 feet from the intersection of State
Route 223 and the Township Road On State Route 223 about
150 feet from its intersection with the Township Road is an
old abandoned office building which had been damaged by
dynamiting some time previously. Both the Township Road
and State Route 223 are public thoroughfares, the Township
Road being 25 feet wide and State Route 223 30 feet wide
with a 50-foot right of way.
1. The case of the General Counsel
Charles Mears, a partner in Mears, testified that they had
had continuous telephone calls from the State police to expect
"an accumulation" of men around their plant on January 29
or 30. Nothing happened on January 29, however On January
30 at 6 a.m., Charles Mears was in Clymer, Pennsylvania, where
he saw men congregated on a corner. He telephoned partner
Bence at the tipple and advised him that UMW men were
gathering for a mass picket on their operations. He then left
Clymer and went to the tipple where he arrived about 7 a in.
About 8 a.m six cars containing about 23 men arrived down
Route 223. Within 15 or 20 minutes the crowd had grown to
between 75 and 100 and had started moving up the Township
Road, blocking it. Charles Mears came out of the scale house
then and walked towards them. The men were shouting and,
according to Charles Mears, "threatening." Someone said,
"You sons-of-bitches brought the Southern Labor Union in
and we are going to send them back to Tennessee." According
to Mears' quality control engineer, John Meehan, 25 men
surrounded the scale house. Charles Mears asked to speak to
someone and the men selected Telk to represent them. Bence
suggested that they go into the scale house to talk and he,
Charles Mears, Telk, and two other UMW men, whom Telk
introduced as local presidents, went in. According to Charles
Mears, he then asked them what they wanted and in turn was
asked what Mears was going to do about the SLU Charles
Mears explained that they had a contract with SLU and
couldn't do anything about it. Telk, however, was not satisfied
with this answer and demanded that Mears become "members"
of the United Mine Workers of America. He added that if
Mears didn't "these men are old style coal miners " One of the
other UMW representatives told Mears they would send the
Southern Labor Union back to Tennessee by any means
adding, "You are not going to shut down temporarily, you are
going to shut down permanently until you become a member
of the United Mine Workers." During this conversation two
employees of Mears were in the scale house as well as the five
men previously mentioned, and it may be presumed that they
overheard this conversation inasmuch as the scale house is an
unpartitioned structure only 20- or 24-feet square. The
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation ended and as the men left the scale house one of
the picketers noticed a gun lying on the back seat of Charles
Mears' automobile parked in front of the scale house. Some of
the men then tried to get into the car, rocking it, and trying to
pry the doors open. A sheriff who was present made them
move away. Someone else then noticed the presence of armed
guards which Mears had maintained since January 17 when the
old office building was dynamited. Some of the picketers then
shouted that they would get guns and come back and fight.
Telk then ordered the men to leave, whereupon the crowd
drove off to Clymer. Charles Mears then ordered his employees
to leave the property and they did. Charles Mears denied that
there were any threats of assault or harm to the employees,
"only in general." He explained his answer saying that the
picketers in the presence of the Mears employees made such
threats as, "We will blow the place off of the map," "You
sons-of-bitches will get sent back to Tennessee," "You will
either become United Mine Workers or we will get even."
Bence's testimony was substantially corroborative of that
given by Charles Mears. He added that after everyone else had
left on the morning of January 30, he, too, left but came back
again around 10 a in with Meehan. As he did so, he noticed
approximately 400 people standing around on both sides of
State Route 223, as well as 50 to 75 people standing on the
Township Road, blocking it. He made no attempt to go to the
tipple but continued on State Route 223. It took him about 5
minutes to go some 600 or 700 feet, due to the crowd of
people on the road. As he drove by, he saw some of the men
burning down the old dynamited office building.
Meehan's testimony was also corroborative of that given by
the other witnesses for the General Counsel According to him,
when the men assembled on State Route 223 and the
Township Road for the first time, there was "a lot of talking
and then it became yelling and hooting and swearing," and the
Township Road was blocked, "a standing room only situ-
ation " He, too, saw the crowd of men adding wood to the fire
that was burning in the old office building when he returned
with Bence.
2. The case of the Respondents
Bruno Telk testified on behalf of the Respondents con-
cerning the events of January 30. He testified that on January
29, at 9.45 in the evening, Judge Clark of the Court of
Common Pleas of Indiana County, Pennsylvania, telephoned
him and told him that he would hold Telk responsible if
"anything goes on" regarding an impending mass picketing in
the Clymer area. Telk replied that if there were any pickets in
the morning he would try to disperse them. The next morning
at 7 a.m. he heard over the radio that a mass of men were
assembling in Clymer. He drove to Clymer, parked his car, and
as he was walking was picked up by three men in a car. At
Telk's suggestion the car was driven to the Mears' tipple where
he found a group of men who told Telk that they were
picketing Many more men arrived as well as State troopers.
Hearing a report that there were snipers in the Mear's buildings,
he and other men walked up the Township Road and
complained to the sheriff who was present about the armed
men as well as dogs on the premises. Telk admitted that the
men were hollering but, according to him, they were hollering
for the sheriff. Telk then met with Charles Mears and Bence,
taking with him two local presidents. According to Telk,
Charles Mears told him that the tipple would not operate as
long as the men were picketing, to which Telk replied, "That is
not going to satisfy them. They want you to get rid of the
Southern Labor Union," adding "They are old coal miners.
They are not going to stand for this Southern Labor Union
here and they want you to get rid of the Southern Labor
Union." Telk denied any knowledge of threats or violence
although he admitted that he saw fire at the old office building
and told the men, "You should not have put that thing on fire,
whoever done it " Telk's first effort at dispersing the men at
the Mears' tipple or along State Route 223, by his own
testimony, was after he found the old office building on fire.
He made no mention of any attempt to disperse the men while
they were yelling or demanding the ouster of the SLU, or
crowding the Township Road or State Route 223.
On balance I credit the testimony of Charles Mears, Bence,
and Meehan concerning the events of January 30 and find that
ingress and egress for the Mears' operations was impeded by
the crowd of men that congregated on January 30, that the
crowd of men threatened violence within the hearing of Mears'
employees as well as management officials and that it engaged
in violence in the burning of Mears' old office building.
Although these men did not prevent anyone from leaving the
Mears' operation, I note that the Mears' employees were
released from their work only after the pickets had left
Similarly, although the men did not prevent anyone from
coming to the Mears' operation, their blocking of the access
roads made it necessary for Mears to notify their suppliers not
to attempt deliveries.
C. Conclusions
I conclude that UMW, District 2, and Local 6796 violated
Section 8(b)(1)(A) of the Act in the events of December 17,
1968, at the Consolidated School and that UMW and District 2
violated Section 8(b)(1)(A) of the Act in the events at the
Mears' tipple on January 30, 1968.
Section 8(b)(1)(A) of the Act provides:
(b) It shall be an unfair labor practice for a labor
organization or its agents-
(1) to restrain or coerce (A) employees in the exercise
of the rights guaranteed in section 7 ...
Section 7 of the Act states.
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all such
activities . .
I have found that DeGretto, an official of UMW and District
2, as well as Simpson, an official of Local 6796, was present
when the crowd of men assembled at the Consolidated School
on December 17. Simpson himself told the SLU men there
that they would "run them back to Tennessee." Both Simpson
and DeGretto were present when Plavi was struck. There is no
evidence that either DeGretto or Simpson made any attempt
to disperse the crowd at the school until after Plavi had been
struck. Nor is there any evidence that either man discouraged
the utterance of threats creditably testified to by witnesses
called on behalf of the General Counsel. Moreover, it is clear
that the presence of Local 6796 members as well as its
president, Simpson, was pursuant to formal action taken at a
meeting of that Local earlier that day.
Counsel for the Respondent seeks to draw a distinction
between this case and other cases, pointing out that other cases
UMW, DISTRICT 2 669
had established picket lines and an actual blocking of ingress to
employees I do not understand the case law to support that
argument. In United Mine Workers of America Local No. 7083
(Grundy Mining Company), 146 NLRB 176, the Trial
Examiner's decision, approved by the Board, declared:
When men are massed so that employees in order to get to
work must, in effect run a gauntlet, this in itself without
more, is coercive. American Steel Foundries v Tri-City
Central Trades Council, 257 U S. 184 Although I have
found that the described acts at Pocket Intersection,
including the road blockage, did in fact take place and did
in fact have a coercive effect on the Grundy employees and
in fact prevented them from being able to get to work, such
a finding is not essential to establish violation of Section
8(b)(1)(A) of the Act. It is sufficient to establish a violation
of that section to show that the conduct of the Respondent
union had a tendency-which of course it clearly did-to
restrain or coerce the Grundy employees, without requiring
them to attempt to get to work at the risk of their lives or
even lesser peril. The Act does not require proof that
coercive conduct had its desired effect. N.L.R.B. v. Wilbur
H. Ford, d/b/a Ford Brothers, 170 F.2d 735, 738 (C.A. 6).
[Emphasis supplied ]
Although the gauntlet established by the UMW members
was not at the place of employment of the SLU members,
there is no reason why, by a parity of reasoning, it cannot be
said that the establishment of such a gauntlet at a meeting
place of workers would not have the tendency to restrain or
coerce such SLU members in their organizational activities.
Moreover, the assault on Plavi was, of course, an act of
violence. Respondents argue, however, that Plavi's "inciting
language" incited the assemblage. I do not agree. The so-called
inciting language used by Plavi, even according to Respon-
dent's witness, DeGretto, was simply "if anybody here wants
to make a statement, I have a tape recorder here. I will be glad
to take your statement." I fail to find any incitement in such
language.
Nor does the fact that the identity of the actual assailant is
unknown relieve the Respondents from their responsibility in
this matter. In the same Grundy case supra, the same argument
was answered.
This contention, however, ignores the fact . that at least a
substantial proportion ... of the mob consisted of their
[Respondents'] own members. Since Respondent's mem-
bers concededly constituted a major presence in and
component of the mob, it defies belief that, under the
circumstances described, each and every one of Respon-
dent's members remained stolid, while unidentified alien
elements at their sides and all around them were the only
persons who engaged in disorderly activities .... In mob
action, the acts of one may in legal contemplation
justifiably be regarded as the acts of all
My views with regard to the culpability of Respond-
ent ... are reinforced, and if need be would find independ-
ent support for my fact findings, in the presence, activities,
and omissions to act there of various of its officials, who
can hardly be regarded, other than by the excessively naive,
as having been there as neutral observers or for sterile
onlook. [Emphasis supplied.]
See also United Mine Workers of America, Local No. 7244
(Grundy Mining Company), 146 NLRB 244, where the Board
adopted the decision of the Trial Examiner who stated.
Respondent's responsibility for these acts and threats
flows from its purposeful participation therein through
substantial numbers of its members, including its off-
icials ... as well as from the failure of those officials, who
were present, in any way to prevent or dissuade the
membership from participation therein or in any way to
disassociate Respondent therefrom or to disavow responsi-
bility therefor. As aptly stated by the court in United States
v. International Union, United Mine Workers of America,
77 F.Supp. 563, affirmed in part and appeal dismissed 177
F 2d 29 (C A D.C ), cert denied 338 U.S 871 " .. as
long as a union is functioning as a union it must be held
responsible for the mass action of its members." This may
even be true where the specific acts perpetrated are
unauthorized . This liability may even extend to acts in
pursuance of union interests, although the acts have been
expressly forbidden by it. [Emphasis supplied ]
The events in this proceeding bear a remarkable resem-
blance to the events of the two Grundy mining cases cited
above, which, incidentally, involved the same UMW and SLU,
and which dictate the result found herein.
See, also, Dressmakers Joint Council (Susan Evans, Inc.),
146 NLRB 559, 569, Teamsters Local 783 (Coca-Cola Bottling
Company of Louisville), 160 NLRB 1776, International
Ladies' Garment Workers Union (F R. Knitting Mills), 145
NLRB 10; Local 5881, UMW (Grundy Mining Company), 130
NLRB 1181
Much the same can be said of the events of January 30,
1968, at the Mears' tipple Counsel for the Respondents argues
for dismissal of this allegation of the complaint arguing that
the assemblage was on public roads open to the general public
and that there was no impeding of progress of any persons
attempting to gain access to the Mears' property or leaving that
property. I find this argument unsubstantiated by the record.
The fact that the highway is open to the general public does
not confer license upon some individuals to block it Moreover,
even if such individuals did not succeed in blocking the
highways but only in establishing a gauntlet for the Mears'
workers and supphers to run, such action would, as found
earlier, constitute coercion of the employees. In addition, the
only reason the Mears' employees were not impeded in their
attempt to leave the Mears' premises was the fact that they
made no attempt to leave while the pickets were assembled on
the road but did so only after the pickets had left and then on
the express instruction of Mears' management in order to avoid
further difficulties. Similarly, although the suppliers made no
attempt to deliver coal to the Mears' tipple, it cannot be said
that their access to the Mears' tipple was unimpeded inasmuch
as they, too, were instructed not to attempt deliveries when it
appeared that the UMW men had blocked the highway.
Counsel for the Respondent also argues that the threats
uttered by various individuals congregated around the tipple
were "instigated" by Mears when it placed armed guards in
view "which was an open threat to violence or injury to the
assemblage." Admittedly, Mears had employed armed guards
at its operations since January 17 when its old office building
had been dynamited. No witness testified, however, to having
seen any armed guards at Mears on January 30 when the mass
picketing occurred. The only witness called on behalf of the
Respondents to testify regarding that incident, Bruno Telk,
stated that some men, unidentified, told him there were a couple
of men in the building looking out with shotguns or rifles. He
complained to the sheriff who was present, and the latter
called two men out of the building. Accepting Telk's testi-
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony in this respect, it would appear that the "instigation"
by armed guards was eliminated when the two men left
the building at the command of the sheriff Nevertheless,
according to Telk, the mass picketing and threats by the UMW
continued, and, even much later, the office building was
burned. I cannot accept, therefore, Respondents' argument of
instigation. To accept it would mean that anyone who posts an
armed guard on his own property after experiencing some
violence there, is guilty of inviting further violence by
wrongdoers. Moreover, the presence of armed guards does not
necessarily mean that the Mears' employees were thereby
rendered immune to fear and intimidation as a result of the
threats and pressures generated during UMW's mass picketing.
National Organization of Masters, Mates, and Pilots of
America, Inc. (J. W. Banta Towing Company, Inc), 116 NLRB
1787.
Finally, even if we assume, arguendo, that the Respondents
did not actually block ingress or egress, such finding would not
alter the result. It is not the success of the attempted coercion
that is determinative of an 8(b)(1)(A) violation The behavior
of the UMW men at the Mears' tipple was reasonably
calculated to deter the Mears' employees from their work. Its
inefficacy in this particular instance is no defense. Interna-
tional Longshoremen's and Warehousemen's Union (Sunset
Line and Twine Company), 79 NLRB 1487, 1505.
CONCLUSIONS OF LAW
1 Respondents UMW, District 2, and Local 6796 violated
Section 8(b)(1)(A) of the Act in restraining and coercing the
employees of Mears and others by their threats of violence and
acts of violence at the Consolidated School in Home, Pennsyl-
vania, on December 17, 1967.
2 Respondents UMW and District 2 violated Section
8(b)(1)(A) of the Act by restraining and coercing the
employees of Mears with threats of violence and acts of
violence at the Mears' tipple on January 30, 1968.
THE REMEDY
Having found that the Respondents have engaged in unfair
labor practices violative of Section 8(b)(1)(A) of the Act, I
shall recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of
the Act. Inasmuch as the activities of the Respondents indicate
a flagrant disregard for the statutory rights of employees
protected by Section 7 of the Act, with no sign of any
abatement in the future, it will be recommended that the
Respondent cease and desist not only from the unfair labor
practices found but also from infringing in any other manner
upon the rights guaranteed in Section 7 of the Act
At the request of counsel for the General Counsel the
notice that will be required to be posted will be expressed in
simple and readily understandable language in accordance with
Harry F. Berggren & Sons, Inc., 165 NLRB No. 52, Bilyeu
Motor Corp., 161 NLRB 982 I find insufficient warrant,
however, for departing from the usual remedies for unfair
labor practices as requested by counsel for Charging Party
Mears. See International Union of Operating Engineers, Local
513 (Long Construction Company), 145 NLRB 554, 556;
International Hod Carvers, Building and Common Laborers
Union of America, Local 916 (Owen Langston). 145 NLRB
565.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, it is
recommended that
A. United Mine Workers of America, and United Mine
Workers of America, District 2, their officers, agents, and
representatives, shall*
1. Alone or in concert with others, cease and desist from:
(a) Instigating or participating in violence or threats against
employees of Mears Coal Company, Penn Hill Coal Corpo-
ration, K & S Coal Company, Inc, MY Coal Company, Peles
Brothers Coal Company, Copper Valley Coal Company, or
Chestnut Ridge Mining Company to prevent them from
meeting or from otherwise exercising their right to organize,
form, join, or assist Southern Labor Union or any other labor
organization
(b) Blocking or attempting to block the employees of
Mears Coal Company from corning to work or leaving work in
order to discourage said employees from joining or assisting
Southern Labor Union or any other labor organization
(c) In any other manner restraining or coercing employees
of the aforementioned employers in the exercise of rights
guaranteed by Section 7 of the Act
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Post at the offices and meeting halls of each Respon-
dent copies of the attached notice marked "Appendix A." 1
Copies of said notice, to be furnished by the Regional Director
for Region 6, after being duly signed by both Respondents'
representatives, shall be posted by the Respondents immedi-
ately upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Mail signed copies of the notice to the Regional
Director for Region 6 for posting by Mears Coal Company,
each of the other employers listed above, and Southern Labor
Union, said employers and Southern Labor Union being
willing, at all locations where notices to their employees or
members are customarily posted.
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision,2 what steps
have been taken to comply herewith.
B. United Mine Workers of America, Local 6796, its
officers, agents, and representatives, shall.
1. Alone or in concert with others, cease and desist from:
(a) Instigating or participating in violence or threats against
employees of Mears Coal Company, Penn Hill Coal Corpo-
I In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
2 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
UMW, DISTRICT 2 671
ration, K & S Coal Company, Inc., MY Coal Company, Peles
Brothers Coal Company, Copper Valley Coal Company, or
Chestnut Ridge Mining Company to prevent them from
meeting or from otherwise exercising their right to organize,
form, join, or assist Southern Labor Union or any other labor
organization
(b) In any other manner restraining or coercing employees
of the aforementioned employers in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act.
(a) Post at the offices and meeting halls of the Respondent
copies of the attached notice marked "Appendix B "3 Copies
of said notice, to be furnished by the Regional Director for
Region 6, after being duly signed by Respondent's represen-
tative, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Mail signed copies of the notice to the Regional
Director for Region 6 for posting by Mears Coal Company,
each of the other employers listed above, and Southern Labor
Union, said employers and Southern Labor Union being
willing, at all locations where notices to their employees or
members are customarily posted
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision,4 what steps
have been taken to comply herewith.
found that we violated the law and has ordered us to post this
notice and keep our word about what we say in this notice.
The Act gives all employees these rights
To organize themselves
To form, join, or help unions
To bargain as a group through a representative they
choose
To act together for collective bargaining or other mutual
aid or protection
To refuse to do any or all of these things
We have also been ordered to assure our members, the
employees of the above-named employers and members of the
Southern Labor Union, that
WE WILL NOT do anything that interferes with these
rights
WE WILL NOT threaten violence for failure to join our
Union.
WE WILL NOT commit acts of violence to force anyone
to join our Union
WE WILL NOT interfere with the meetings of the mem-
bers of any other union.
WE WILL NOT block or attempt to block the employees
of Mears Coal Company from coming to work or leaving
work in order to discourage said employees from joining or
assisting Southern Labor Union or any other labor organi-
zation.
Dated
3 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
4 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES OF MEARS COAL COMPANY,
PENN HILL COAL CORPORATION, K & S COAL COMPANY,
INC., MY COAL COMPANY, PELES BROTHERS COAL
COMPANY, COPPER VALLEY COAL COMPANY, AND
CHESTNUT RIDGE MINING COMPANY AND TO ALL
MEMBERS OF THE SOUTHERN LABOR UNION
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify you that
After a trial in which both sides had the opportunity to
present their evidence the National Labor Relations Board has
UNITED MINE
WORKERS, UNITED
MINE WORKERS,
DISTRICT 2
(Labor Organization)
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.
If persons have any question concerning this notice or
compliance with its provisions, they may communicate direc-
tly with the Board's Regional Office, 1536 Federal Building,
1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Tele-
phone 644-2977.
APPENDIX B
NOTICE TO ALL EMPLOYEES OF MEARS COAL COMPANY,
PENN HILL COAL CORPORATION, K & S COAL COMPANY,
INC, MY COAL COMPANY, PELES BROTHERS COAL
COMPANY, COPPER VALLEY COAL COMPANY, AND
CHESTNUT RIDGE MINING COMPANY AND TO ALL
MEMBERS OF THE SOUTHERN LABOR UNION
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify you that*
After a trial in which both sides had the opportunity to
present their evidence the National Labor Relations Board has
found that we violated the law and has ordered us to post this
notice and keep our word about what we say in this notice.
The Act gives all employees these rights
To organize themselves
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To form, join, or help unions
To bargain as a group through a representative they
choose
To act together for collective bargaining or other mutual
aid or protection
To refuse to do any or all of these things
We have also been ordered to assure our members, the
employees of the above-named employers and members of the
Southern Labor Union, that:
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT threaten violence for failure to join our
Union.
WE WILL NOT commit acts of violence to force anyone
to join our Union
WE WILL NOT interfere with the meetings of the mem-
bers of any other union.
UNITED MINE WORKERS LOCAL 6796
(Labor Organization)
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 materials.
If persons have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 644-2977.