United Mine Workers of America

National Labor Relations Board - Board Decisions

Aug 26, 1953

106 N.L.R.B. 903 (N.L.R.B. 1953)

DISTRICT 50, UNITED MINE WORKERS OF AMERICA 903
DISTRICT 50, UNITED MINE WORKERS OF AMERICA; TUNG-
STEN MINING LOCAL OF THE UNITED MINE WORKERS
OF AMERICA; ROBERT R. FOHL, DIRECTOR, REGION 19,
DISTRICT 50, UNITED MINE WORKERS OF AMERICA;
WILLIAM CORDELL HOLLOMAN, PRESIDENT TUNGSTEN
MINING LOCAL, UNITED MINE WORKERS OF AMERICA
and TUNGSTEN MINING CORPORATION. Case No. 11-CC-3.
August 26, 1953
DECISION AND ORDER
On May 13, 1953, Trial Examiner Albert P. Wheatley issued
his Intermediate Report 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 therefrom and take certain affirmative action
as set forth in the Intermediate Report attached hereto. There-
after, the Respondents filed exceptions to the Intermediate
Report and a supporting brief; the General Counsel filed a
brief in support of the Intermediate Report, and an exception
to the posting provisions of the Trial Examiner's recommended
order; and Tungsten Mining Corporation filed a statement 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 Intermediate Report, the exceptions, the briefs
and statement, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following addition and modifications:
1. As set forth in the Intermediate Report, in April 1946,
the Board conducted an election among the Company's em-
ployees, and issued a certification in favor of Stone Workers.
Thereafter, commencing in May of that year, the Company
and Stone Workers executed an uninterrupted succession of
collective-bargaining agreements , the fourth of which, by an
amendment executed late in 1950, was made effective until
January 15, 1953, and from year to year thereafter unless
modified or terminated by 60-day notice.
In the fall of 1952, Respondent Holloman, with the help of
District 5.0, organized the Tungsten Mining Local of UMW
at the Company's plant. Holloman was elected president of the
Local.
While Tungsten Mining Local was being organized, and
thereafter, meetings were held with the Company's employees.
At these meetings, representatives of District 50 made a
series of speeches in which they pointed out that UMW did
not use the facilities of the Board to settle repre sentation que s -
tions, and said that they would probably call a strike if UMW
could not get recognition in any other way.
On October 3, Respondent Fohl, regional director of District
50, and other representatives of District 50 asserted to the
106 NLRB No. 153.
9 04 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company that UMW represented a majority of the Respondent's
employees , and requested that the Company recognize UMW as
bargaining representative . The claim was coupled withathreat
to strike if UMW was not recognized . Having ascertained that
a majority of its employees had authorized dues checkoffs
in favor of Stone Workers , the Company advised Fohl that Stone
Workers was the certified representative of its employees
and that the Company would continue to recognize it as such
until another bargaining agent was certified by the Board.
Thereafter, on October 22, 1952, Fohl advised the Company
that UMW's purpose would be achieved by "economic action,
if necessary ," asserting that UMW was determined to "kick
out an unwanted union by our own strength ." On October 30,
1952 , Fohl sent the Board a letter to advise it of the "situation,"
warning that UMW intended to protect the interests of the
Company ' s workers "by every moral and legal means at our
disposal , including that of strike action, if necessary."
In mid-November 1952, Stone Workers notified the Company
that it wished to end the existing contract and proposed that a
new contract be negotiated . On December 18, 1952, the Company
and Stone Workers executed a new contract to become effective
on January 15, 1953 , the terminal date of the existing contract.
On January 9, 1953, the Company discharged twoemployees,
including Holloman, who thereupon spoke with other members
of the Local. They agreed to strike in protest against the dis-
charges. The strike began at 6 p. m. At 7 p. m. representatives
of District 50 arrived at the Company ' s plant.
On January 10, 1953 , Holloman and Fohl prepared a press
release announcing that "recognition of the UMW would be an
additional purpose of the strike ." The strike continued for
sometime thereafter and continued to have as one of its
avowed purposes the recognition of UMW or District 50 by the
Company as the bargaining representative of its employees.
On- January 9, 11, 12 , 13, and 20 , a series of coercive acts,
by strikers , described in detail in the Intermediate Report,
occurred at or in the vicinity of the picketing . These acts
consisted of threats , express or implied , directed against
nonstrikers; the blocking of a road to the plant ; and an assault
upon a nonstriker in the presence of other nonstrikers.
On January 12, 13 , 16, and 19 , other coercive acts, also
described in detail in the Intermediate Report, occurred away
from the picketlines . These acts consisted in trailing , threaten-
ing, and assaulting nonstrikers , and firing shots into the
house of a nonstriker . One threat directed against a non-
striker was made by Respondent Holloman himself.
On January 14, 1953 , a State court enjoined various "unlaw-
ful acts" by strikers . The injunction was read to the pickets
by a representative of District 50, who admonished the pickets
to comply therewith.
During the strike , representatives of District 50 were
present at the picket lines; gave Holloman "instructions" and
"suggestions" in running the strike ; distributed signs and
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 905
buttons among the pickets bearing the name of District 50;
paid the rent for premises which were used as strike head-
quarters; and, with District 50 funds, posted bond for strikers
accused by State authorities of criminal acts. One of the
acts for which bond was posted was, as the Trial Examiner
found, a coercive act directed against anonstriker.On January
14, during the course of the strike, a representative of District
50 announced that it was taking over the conduct of the strike.
In addition to his other activities described above, Respondent
Fohl was -present at the picket lines near the Company's plant
and gave advice to Holloman concerning the management of
the strike.
As already indicated, Respondent Holloman conferred with,
and urged, the employees to begin the strike, and himself
threatened a nonstriker with reprisals. He also assisted in
"running" the strike; kept records pertaining to picketing;
and was himself present at the picket lines.
2. We agree with the Trial Examiner's conclusion that the
age of Stone Workers' certification does not preclude a finding
that the strike for recognition of UMW violated Section 8 (b)
(4) (C) of the Act.
Section 8 (b) (4) (C) provides in pertinent part that:
It shall be an unfair labor practice for a labor organiza-
tion or its agents . . . to engage in . . . a strike . . . where
an object thereof is . . . forcing or requiring anyemployer
to recognize or bargain with a particular labor organiza-
tion as the representative of his employees if another
labor organization has been certified as the representative
of such employees under the provisions of Section 9.
As stated above, Stone Workers was certified by the Board
as the bargaining representative of the Company's employees
in May 1946, and the strike for the recognition of the UMW
occurred in January 1953. At issue before the Board, therefore,
is whether Stone Workers was, at the time of the strike, still
a "certified" labor organization within the meaning of the
quoted language of Section 8 (b) (4) (C).
That language places no time limitation on the duration of
a certification otherwise entitled to the protection of that
section. Nor does the legislative history of the Act reveal
that the Congress intended, or even considered, such a
limitation. 1
The Respondents, however, contend in effect that the language
of the statute should not be applied in this case. They argue
that Stone Workers' certification was not valid in 1953 because
"the strike and majority participation [in the UMW] rebuts any
1 The history of the provision Indicates only that Section 8 (b) (4) (C) was intended to
proscribe conduct, such as a strike, which bypasses the Board's machinery for the peaceful
settlement of disputed representation questions. See H. R. Rep. No. 245, 80th Cong., 1st
Sess. pp. 6, 44 (1947).
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presumption of such continued existing certification." This
contention is apparently founded upon the Board ' s doctrine
with respect to an employer ' s obligation to bargain under
Section 8 ( a) (5) of the Act . In that context , the Board has held
that the majority status of a certified union, absent unusual
circumstances , is conclusively presumed to continue for 1 year
after certification ; thereafter , the presumption is rebuttable
and the employer may in goodfaith question the union's
majority status.2
We need not , however, here decide whether or not this
doctrine is applicable to Section 8 (b) (4) (C ) of the Act. For
even were we to concede that point , the Respondents ' contention
still would have no merit . There is no evidence in the record
to show, as the Respondents assert, that a majority of the
Company's employees participated in the recognition strike.
The evidence shows only that there was a strike , that the
Company continued to operate its mine, and that a number of
employees did not participate in the strike. There is nothing
else to show that UMW was the representative of a majority
of the Company ' s employees either before or during the
strike. In this connection , the record shows only that a bare
claim was pressed upon the Company that the UMW represented
the majority of its employees , but no supporting evidence
thereof was adduced. Indeed , the only evidence there is on
the question consists in the voluntary authorization of dues
checkoffs in favor of Stone Workers, which supports , rather
than rebuts , the presumption that the Stone Workers continued
to be the majority representative of the Company's employees
at the time of the strike.
We need not and do not here determine whether there are
any circumstances under which a union may lawfully strike
for recognition if another union has once been granted a
certificate which has not been superseded or revoked. We
hold that , under the circumstances of this case, the certifica-
tion was still outstanding and the strike for recognition was
a clear violation of Section 8 (b) (4) (C). 3
3. We agree with the Trial Examiner that all four Respondents
were responsible for the strike and thereby violated Section 8
(b) (4) (C) of the Act. Respondents Fohl and Holloman, either
themselves or through persons acting under their direction
and control , induced or encouraged employees of the Company
to engage in the strike which had as an object forcing the
Company to recognize UMW as representative of its employees.
As stated above, and set forth in more detail in the Intermediate
Report, Holloman instigated the strike of January 9, Holloman
and Fohl jointly decided on January 10 to adopt as one of the
2 See, e. g., Celanese Corporation of America , 95 NLRB 664.
3Chairman Farmer is of the view that a union which strikes for recognition in the face
of an outstanding certification- - which is still recognized as valid by the employer and
certified union- -has no standing to contest the majority status of the certification. He is
of the opinion that the statutory prohibition expressed in Section 8 (b) (4) (C ) was intended
in these circumstances to be absolute.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 907
objects of the strike recognition of UMW , Holloman, with
Fohl's advice , managed the strike and attendant picketing,
and Holloman , himself, on January 12 orally solicited a non-
strike to join the strike.
We find also that, in engaging in the foregoing conduct, both
Holloman and Fohl acted within the scope of their authority as
agents of the Local and District 50, respectively . Holloman
was the president of the Local , which had been organized under
the auspices of UMW for the purpose of representing the
employees . In view of his position in the Local, it is proper
to infer that he had authority to call and conduct the strike in
the instant case with its avowed purpose of obtaining recognition
for UMW . There is nothing in the record to rebut this inference.
On the contrary , the record shows that the strike was called
only after Holloman had consulted with, and obtained the
approval of, other members of the Local , and Holloman's
press release of January 10 announcing that recognition of
UMW was a purpose of the strike was not repudiated by the
Local.
Fohl was Regional Director of District 50 UMW , and his
letters to the Company and the Board threatening strike
action unless the Company recognized UMW were written
on stationary bearing a District 50 letterhead . Funds of
District 50 were used to supply bail for arrested strikers.
Representatives of District 50 other than Fohl gave financial
support to the strike , supplied the pickets with signs demanding
recognition and bearing the name of District 50, and on
January 14 these representatives publicly announced that
District 50 was taking over the conduct of the strike. No
evidence was offered to rebut the inference arising from these
facts that Fohl was empowered by District 50 to seek recogni-
tion for it or its affiliated locals from employers within his
jurisdiction, that to achieve such recognition , Fohl and the
other representatives of District 50 were authorized to call
or, as in the instant case , conduct and support a strike, and
that in any event the action of Fohl and the other District 50
representatives in the instant case was ratified by District 50.
We find therefore that all 4 Respondents were responsible
on and after January 10 for conducting a strike for recognition
of UMW, thereby violating Section 8 ( b) (4) (C) of the Act.
4. We agree with the Trial Examiner that all four Respond-
ents were responsible for the conduct by strikers and pickets
both at and away from the picket line , found by the Trial
Examiner to be coercive , and that all Respondents therefore
violated Section 8 ( b) (1) (A) of the Act.
However, in imputing responsibility for such conduct to the
Respondents we do not adopt the Trial Examiner ' s reasoning
insofar as it predicates such responsibility on the fact that
the Respondents engaged the services of the pickets. We do
not consider it necessary to decide whether by the mere
fact of "engaging" pickets or establishing picket lines a union
or union official incurs responsibility for all conduct by the
9 08 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets in furtherance of the purpose of the picketing. The
record shows other grounds for holding the Respondents
liable for the misconduct of the pickets and strikers, on which
we rely.
Respondent Holloman, as we have found above, had general
authority, as president of the Local, to call and conduct the
strike. We find, therefore, that the Local was responsible
for his conduct in threatening Self, a nonstriker, at his home
with reprisals unless he joined the strike, 4 and that by this
threat alone, Holloman and the Local violated Section 8 (b)
(1) (A) of the Act.
In addition, in making the foregoing threat, Holloman
indicated that he was aware of the generally coercive nature
of the picketing; for he warned Self that if he reported for work
during the strike he would run the risk of reprisals by "the
boys."
While there is no evidence that Holloman actually witnessed
the acts of violence and intimidation found by the Trial Examiner
to be coercive, they occurred under such circumstances that
they could not have failed to come to his attention. Some of
these incidents involved from 50 to 100 pickets. They were
committed for the most part in public places, in the presence
of onlookers, and in at least one instance in the presence of
UMW representatives. The incidents continued over a period
of 11 days. Under these circumstances, we find that Holloman
was aware of many, if not all, the instances of coercion
described by the Trial Examiner, and that it became his duty
as the one who, by his own admission, "ran" the strike to
repudiate such misconduct and take disciplinary action against
the persons responsible therefor. 5 Instead, he, himself, en-
gaged in similar misconduct of the same general character.
We find, under these circumstances, that Holloman, acting
within the scope of his authority, as president of the Local,
acquiesced in and condoned the misconduct of the other pickets
and strikers, and that both Holloman and the Local thereby
violated Section 8 (b) (1) (A) of the Act.
For similar reasons, we find that Respondent Fohl, who, as
regional director of District 50, participated in the conduct
of the strike, and, like Holloman, took no effective- action to
prevent the extensive and numerous acts of coercionby pickets
and strikers which could not have escaped his notice, was
responsible for such acts. We find, therefore that Fohl and
District 50 thereby violated Section 8 (b) (1) (A) of the Act.
Additional reason for holding District 50 responsible for
such coercive acts consists in the fact that District 50 and
4See Sunset Line and Twine Co., 79 NLRB 1487, 1510.
5 The Trial Examiner found that Holloman was one of those who on January 9 admonished
the other pickets to keep order on the picket line. However, Holloman, although in charge
of the strike, took no action against those responsible for the extensive and flagrant acts
of violence . . The fact that union officials may have forbidden coercive conduct does not
relieve them of responsibility therefor, particularly when they themselves, as in the case
of Holloman, have participated therein. Cory Corporation, 89 NLRB 972, 978.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 909
the Local, as cosponsors of the strike and picketing, were
engaged in a joint venture, thereby rendering District 50
responsible for all the acts which we have attributed to the
Local and Holloman.6
5. Unlike the Trial Examiner, we find that the Respondents
did not violate Section 8 (b) (1) (A) of the Act solely by reason
of the calling of the strike for recognition in violation of
Section 8 (b) (4) (C). A violation of Section 8 (b) (4) (C) of
the Act is not per se a violation of Section 8 (b) (1) (A).'
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent District 50, United Mine Workers of America, its
officers, representatives, and agents, including the Respondent
Robert R. Fohl, and the Respondent Tungsten Mining Local
of United Mine Workers of America, its officers, repre-
sentatives, and agents, including the Respondent William
Cordell Holloman, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging the employees
of the Tungsten Mining Corporation to engage in, a strike or
a concerted refusal in the course of their employment to use,
manufacture, process, transport, or to perform any services,
where an object thereof is to force or require the Tungsten
Mining Corporation to recognize or bargain with District 50,
United Mine Workers of America, or with Tungsten Mining
Local of United Mine Workers of America, or with United
Mine Workers, as the representative of the employees of said
Company, so long as United Stone and Allied Products Workers
of America, CIO, or any labor organization other than District
50, United Mine Workers of America or Tungsten Mining Local
of United Mine Workers of America, has been certified as
the representative of such employees under the provisions of
Section 9 of the Act.
(b) Assaulting and threatening to assault or otherwise to
restrain or coerce employees of the Tungsten Mining Corpora-
tion.
(c) Trailing employees of Tungsten Mining Corporation and
physically preventing them from working.
6See Smith Cabinet Manufacturing Co., Inc., 81 NLRB 886, 889; Sunset Line & Twine Co.,
79 NLRB 1487; Irwin-Lyons Lumber Co., 87 NLRB 54, 78. Except for the acts committed
by Holloman, Member Houston would not hold any of the Respondents responsible for the
coercive acts committed by strikers. He believes that the Board's finding in this respect is
necessarily predicated upon an assumption that the strikers and pickets who committed the
coercive acts were the "agents" of the unions-- an assumption which the Board has heretofore
not made. Cory Corporation, 84 NLRB 972, 978; Smith Cabinet Mfg. Co., Inc., 81 NLRB 886,
891.
7See Perry Norvell Co., 80 NLRB 225; Watson's Specialty Store, 80 NLRB 533, 539;
National Maritime Union of America, 78 NLRB 971.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner restraining or coercing employees
of the Tungsten Mining Corporation in the exercise of the
rights guaranteed in Section 7 of the Act, including the right
to refrain from any or all concerted activities, as guaranteed
by said section.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Post in conspicuous places at their business office and
meeting places in the vicinity of Tungsten Mining Corporation,
Vance County, North Carolina, including all places where notices
to members are customarily posted, copies of the notice
attached hereto as an Appendix.' Copies of such notice, to be
furnished by the Regional Director for the Eleventh Region,
shall, after being duly signed by representatives of the Re-
spondent Unions and individually by Respondents Fohl and
Holloman, be posted by these Respondents immediately upon
receipt thereof and maintained for sixty (60) consecutive days
thereafter . 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 to the Regional Director for the Eleventh Region
copies of the notice attached hereto as an Appendix , for posting,
the Company consenting, on the bulletin boards of Tungsten
Mining Corporation, Vance County, North Carolina, where
notices to employees are customarily posted. The notices shall
be maintained on the Company's bulletin boards for a period
of sixty (60) consecutive days thereafter . Copies of said notice,
to be furnished by the Regional Director for Eleventh Region,
shall, after being signed as provided in paragraph 2 (a) of
this Order, be forthwith returned to the Regional Director for
such posting.
(c) Notify the Regional Director for the Eleventh Region in
writing, within ten (10) days from the date of this Order, what
steps they have taken to comply herewith.
Member Styles took no part in the consideration of the above
Decision and Order.
8In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT 50, UNITED MINE
WORKERS OF AMERICA, AND TO ALL MEMBERS OF
TUNGSTEN MINING LOCAL OF UNITED MINE WORKERS
OF AMERICA AND TO ALL EMPLOYEES OF THE
TUNGSTEN MINING CORPORATION
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 911
the National Labor Relations Act, as amended , we hereby
notify you that:
WE WILL NOT engage in , or induce or encourage
employees of the Tungsten Mining Corporation to engage
in, a strike or a concerted refusal in the course of their
employment to use, manufacture , 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 the Tungsten Mining
Corporation to recognize or bargain with the undersigned
union, or either of them, as the representative of the
employees of said Company , so long as United Stone and
Allied Products Workers of America, CIO, or any labor
organization other than the undersigned unions, has been
certified as the representative of such employees under
the provisions of Section 9 of the National Labor Relations
Act, as amended.
WE WILL NOT assault or threaten to assault or other-
wise restrain or coerce employees of the Tungsten Mining
Corporation.
WE WILL NOT trail employees of the Tungsten Mining
Corporation or physically prevent them from working.
WE WILL NOT in any other manner restrain or coerce
employees of the Tungsten Mining Corporation in the exer-
cise of their right to refrain from engaging in concerted
activities as guaranteed them by Section 7 of the Act.
DISTRICT 50, UNITED MINE WORKERS
OF AMERICA,
Labor Organization.
Dated ..... ........... By....................................................
(Representative) (Title)
TUNGSTEN MINING LOCAL OF UNITED
MINE WORKERS OF AMERICA,
Labor Organization.
Dated ... ............. By....................................................
(Representative ) (Title)
Dated . ...............
Dated ................
....................................................
Robert Fohl, Director,
Region 19, UMW
....................................................
William Holloman , President,
TUNGSTEN MINING LOCAL, UMW
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
The primary questions in issue herein are whether a strike which took place between
January 9, 1953, and the early part of February 1953, was violative of Section 8 (b) (4) (C)
of the National Labor Relations Act, as amended, herein called the Act, and whether District
50, United Mine Workers of America, herein called UMW; Tungsten Mining Local of the
United Mine Workers of America, herein called Tungsten Local; Robert R. Fohl, director,
Region 19, District 50, United Mine Workers of America and William Cordell Holloman,
president, Tungsten Local, are responsible for certain acts of restraint and coercion of
employees of the Tungsten Mining corporation, herein called the Company (violated Section 8
(b) (1) (A) of the Act). I
Tungsten Mining Corporation, a Delaware corporation, engages in the mining and processing
of tungsten ore in Vance County, North Carolina. In the course and conduct of its business the
Company ships annually from North Carolina to points and places outside of North Carolina
tungsten concentrates valued in excess of $4,000,000.
In 1946 the United Stone and Allied Products Workers of America, CIO, herein called Stone
Workers, organized the Company's employees. About March 7, 1946, the Stone Workers filed
a petition for certification of representatives (Case No. 5-R-2282). Pursuant to an agreement
for consent election, an election was held among the production and maintenance employees
of the Company. The Stone Workers won the election and on or about April 3, 1946, a consent
determination of representatives issued. Thereafter the Company and the Stone Workers
executed an employment contract effective for 1 year from May 15, 1946, and from year to
year thereafter unless terminated in writing. In 1947 the Company and the Stone Workers
entered into another contract effective for 1 year and thereafter from year to year unless
terminated. In 1948 the same parties entered into a contract effective for 2 years from May
15, 1948, and from year to year thereafter unless terminated. In 1950 another 2-year agree-
ment was signed, which was later (on or about November 28, 1950) modified and extended
until January 15, 1953.
During the latter part of September or the first part of October 1952 William Cordell
Holloman, with the assistance of representatives of District 50, United Mine Workers of
America, herein called UMW, attempted to organize a UMW local for "the purpose of dealing
with the Company on the matter of wages and hours"--"for the purpose in whole or in part
of dealing with the Company concerning wages , hours of employment and conditions of work."
A local organization known as the Tungsten Mining Local was establishedi and the following
officers were elected:
William Cordell Holloman President
Francis Patton Vice President
Jimmie Knight Recording Secretary
Robert Regan Financial Secretary
On October 3 16, 1952, Robert R. Fohl, "the Director of Region 19, District 50, United Mine
Workers of America and its agent," and Walter A. Shuey and Lucian Lincoln Wood, representa-
I The pertinent sections of the Act read as follows:
® (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:... .
a m a
(4) to engage in, or induce or encourage the employees of any employer to engage in,
a strike ... , where an object is:... (c) forcing or requiring any employer to recognize
or bargain with a particular labor organization as the representative of his employees if
another labor organization has been certified as the representative of such employees
under the provisions of Section 9; ... .
2 The undersigned finds this organization is a labor organization within the meaning of the
Act.
3 The transcript of James Raymond Sweet's testimony reflects December instead of October
as the date of this incident. The entire record reveals this should be October and the trans-
cript is hereby corrected.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 913
tives of District 50, United Mine Workers of America , visited the offices of the Company and
talked to James Raymond Sweet , vice president and general manager of the Company. Fohl
introduced himself and his associates and told Sweet he (Fold) "was on a courteous visit."
Fohl told Sweet a majority of the Company 's employees "had been signed up" as members of
the United Mine Workers Union, that the UMW would not use the facilities of the National
Labor Relations Board but were willing to have an election conducted by a "Federal mediator
or the State Conciliator or both." Fohl also stated " that they were not always successful in
obtaining the right to represent the employees at these plants where they undertook to do
that, but if necessary they would strike or use strike action , that being the only means that
they had to obtain that end or objective ." Shortly after this visit Sweet "had a check made of
the check -off authorization4 of the employees we had on file at the main office " and ascer-
tained that more than a majority of the employees had checkoff authorizations on file and
outstanding.
By letter dated October 17, 1952 Fohl advised the Company:
Dear Mr. Sweet:
Kindly be advised that a substantial majority of your production and maintenance
workers are members of the United Mine Workers of America and we are herewith
requesting a conference with you for the purpose of discussing the matters relative
thereto, as well as wages , hours , and working conditions . This also confirms the personal
visit of Representatives Lincoln Wood, Walter Shuey and myself, with you yesterday.
I would appreciate receiving from you any suggestions leading towards an amicable
solution and settlement of all the issues involved.
Very truly yours.
By letter dated October 21 , 1952, the Company advised the UMW (Fohl):
Dear Sir:
I have your letter of the 17th and beg to advise that I can see no basis for any conference
between us . After an election , "United Stone and Allied Products Workers of America,
Local Branch 98" was certified to us by the National Labor Relations Board as the
bargaining agent for our employees . This certification has never been rescinded and we
will continue to recognize it until some other bargaining agent has been properly certified
to us after another election duly held under the National Labor Relations Act.
Very truly yours,
On or about October 21 , 1952, the Company distributed among its employees a notice
stating:
District 50, United Mine Workers of America has written us that a majority of our
employees are its members and has requested a conference relative to wages, hours,
and working conditions . We have declined to meet with them and will not meet with them
or any other union to discuss these matters until such union has been certified to us
as the duly chosen bargaining agent for our employees after an election duly held under
the National Labor Relations Act. District 50, United Mine Workers of America told us
that they would not participate in any election held under the National Labor Relations
Board and they are therefore not eligible to be certified as a bargaining agent under
the National Labor Relations Act. We feel that our employees should know this. We will
continue to recognize our existing contract until another one has been properly and
legally negotiated and executed . We will cheerfully negotiate with any Union duly chosen
by a majority vote of our employees and certified to us after an election duly and properly
held under the National Labor Relations Board 's procedures.
This October 21, 1952
Tungsten Mining Corporation
4 The contracts between the Company and the Stone Workers provide for checkoff of dues.
Such deductions were made upon the basis of individual authorizations which were revokable
at any time.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated October 22, 1952, UMW (Fohl) criticized the aforementioned conduct of
the Company , suggested the facilities of the State Labor Department or forcing the Stone
Workers to invoke the processes of the National Labor Relations Board as a means to
settle the issue of majority and threatened economic action to secure recognition. A copy
of this letter is attached hereto as Appendix A.
On or about October 27, 1952 , the Company circulated among its employees a document
entitled "N-O-T-I-C-E" "Statement of Company Policy" which in substance, reiterated
the Company 's position as stated in its notice quoted above and added that " if any strike is
undertaken in an attempt to force us to recognize and negotiate with an uncertified union we
are advised that it would be unlawful and we would make every lawful effort available to us
to continue our operations ." A copy of the October 27, 1952 , notice is attached hereto as
Appendix B.
On or about October 30, 1952, UMW sent the National Labor Relations Board a letter
informing the Board of the situation and enclosing copies of the aforementioned documents.
This letter to the Board stated that the UMW "intends to fully support and protect the
interests and desires of the workers of this Mining Company, by every moral and legal
means at our disposal , including that of strike action , if necessary." Copies of the corres-
pondence sent to the Board were sent to the Company for "your information."
By letter dated November 14, 1952 ,5 J. B. Foreman , a representative of the Stone Workers,
advised the Company:
As per Article 27 of the agreement now in effect between your company and the United
Stone and Allied Products Workers of America, please consider this as notice that the
above stated Union wishes to terminate said agreement on January 15, 1953.
I will contact you in the next few days for purpose of setting date for purpose of starting
negotiations on a new agreement.
Yours very truly,
J. B. Foreman
International Representative
By letter dated November 13, 1952, and mailed November 14, 1952, the Company was
advised:
Pursuant to the Labor Management Relations Act of 1947 , and with express reference
to Title I, Section 8 (d) thereof , your (sic) are , hereby , notified that in accordance with
Article 27 , Duration of Agreement , of agreement dated May 15, 1950 and expiring on
January 15, 1952 and Extension AgreementexpirmgonJanuary 15, 1953 between Tungsten
Mining Corporation and United Stone and Allied Products Workers of America, Local
Branch 98 , this is to serve notice that the majority bf the members of Local Branch 98
desire to terminate the above mentioned contract in its entirety on January 15, 1953.
This will also serve to notify you that any new Contract or Extension Agreements under
this present Contract entered into with the above named Union will not be authorized or
sanctioned by us.
Yours very truly,
/s/ George W. Pendley
Recording Secretary , Local Branch 98
Witnessed:
/s/ Cordell Holloman
/s/ Paul D. Gentry
/s/ R. H. Harris
cc: United Stone & Allied Products Workers of America, CIO National Labor Relations
Board , Winston Salem, N. C.
5 Page 33 of the transcript indicates this letter was received by the Company in January
1952. It is apparent from the entire record herein that this date should be November 1952
and the record is hereby corrected to indicate such.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 915
At about the same date that the Company received the aforementioned letter signed by
George W. Pendley, it also received a letter dated November 15, 1952, on Stone Workers
stationery and signed J. B. Foreman, administrator, in which it was advised:
This is to inform you, and your Company, that the International Executive Board of
the United Stone and Allied Products Workers of America has appointed me as admini-
strator of Local 98 of which is composed of your employees at your Tungsten Mines.
Please except (sic) this as your notice required in Article 27 of said Agreement, that
I as administrator desire to modify said Agreement.
I shall send you in the next few days the major changes I desire in said Agreement
along with suggested data for first conference.
Very truly yours,
Upon receipt of the last-mentioned letters the Company asked Foreman and Frank Swann,
a member of the Stone Workers Negotiating Committee, "if George W. Pendley was Recording
Secretary"6 and was informed that "he was not." The Company also inquired of Sam Scott,
international president of the Stone Workers, as to the meaning of the designation of Foreman
as administrator. The Company was informed that Foreman had been appointed administrator
in accordance with the constitution of the Stone Workers to protect the interests of the
international union and was the person with whom the Company should negotiate. Later the
Company was given a copy of a resolution, which stated:
RESOLUTION
WHEREAS, the International Executive Board of the United Stone and Allied Products
Workers of America has been informed of the situation existing at the Henderson-
Tungsten, Henderson, North Carolina, Branch No. 98, and upon investigation, finds
that a crisis exists in the affairs of said Branch, and
WHEREAS, said crisis imperils the continued existence of said Branch, be it
RESOLVED by the International Executive Board of the United Stone and Allied Products
Workers of America that it finds it necessary to protect the interest of the International
Union and to insure an effective administration of the affairs of the International Union,
be it further
RESOLVED that in accordance with the provisions of Article 7, Section D, subsections
3 of the constitution of the United Stone and Allied Products Workers of America, the
said International Executive Board does hereby appoint JAMES B. FOREMAN, Martins-
burg, West Virginia, as administrator of said Henderson-Tungsten, Henderson, North
Carolina Branch No. 98 to take charge of the affairs of said Branch, to work with such
officers as are loyal to the United Stone and Allied Products Workers of America, or to
perform the duties of its officers or any of them, if he terms it necessary, and be it
further.
RESOLVED that said administrator may take possession immediately or at such time
as he deems necessary, of all monies, bank deposits, accounts, bonds, assets, books
and property of said Henderson-Tungsten, Henderson, North Carolina Branch No. 98
and hold and administer the same in accordance with the provisions of the aforesaid
Article 7, Section D, sub-section 3 under the supervision and direction of the said
International Executive Board.
Adopted by the International Executive Board,
United Stone and Allied Products Workers of
America , CIO, on October 31, 1952.
By /s/ John C. Lang
International Secretary -Treasurer
On December 17, 1952, the Company and Foreman, on behalf of the Stone Workers, instituted
negotiations for a new contract. Agreement was reached and a contract executed on December
18, 1952, which by its terms is effective from January 15, 1953, to January 15, 1955, and
"from year to year thereafter unless ...." This agreement was signed by Foreman as
administrator. At the time of the negotiation and execution of this agreement no petition for
certification or decertification was pending before the Labor Board and there were on file
6The Company had not dealt with Pendley as an officer of the Stone Workers.
322615 0 - 54 - 59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Company checkoff authorizations (cards authorizing dues deductions for the Stone
Workers) signed by a majority of the Company's employees. From a table introduced in
evidence, which needs further explanation, it appears that at this time there were approxi-
mately 400 employees and there were on file with the company cards executed on the dates
indicated below:
1948 1949 1950 1951 1952
43 16 14 78 88
There were additional cards on file but the undersigned is unable to determine with a
reasonable degree of accuracy the dates they were executed.
"Around noontime" on January 9, 1953, employees William Cordell Holloman and Jimmie
Knight were discharged. As a protest against these discharges a picket line was established
at the Company's place of business at about 6 p.m. (at the change of shifts) that same date.
During the afternoon of that day Holloman conferred, via telephone, with UMW representatives
Wood and Shuey and advised them of the contemplated strike action. Wood and Shuey came
to the vicinity of the Company's place of business, arriving there around 7 or 8 o'clock that
night. Immediately thereafter the "union fellows," (UMW advocates) including Holloman,
Wood, and Shuey, told "the follows" to keep order on the picket line. Representatives of the
UMW, including Fohl, Wood, and Robinson appeared at the picket line on various occasions
during the strike and gave advice and suggestions, including a suggestion that there be "peace
and quiet at all times." The signs first carried by the pickets merely stated "on strike."
As hereinafter noted, later the pickets carried signs indicating that recognition was sought
by the UMW.
On January 10, 1953, Fohl. UMW regional director, in the presence of Holloman and
others, decided to make the strike a strike for recognition as well as a protest over the
discharges and prepared a press release, which Holloman signed. Thereafter Holloman and
Harvey Robinson, a representative of UMW, took this press release to local newspaper and
radio concerns and authorized its publication. It was published on or about January 12, 1953.
The press release reads as follows:
The Tungsten Mine is on strike due to the spontaneous walkout of all workers because
of the discharge of the President and Recording Secretary of the new local union of the
United Mine Workers of America.
These two officers were fired for an alleged practice which has been an accepted
custom by the workers and the Company.
The prime reason for these discriminatory discharges was action within the past two
or three months by Local 98, of the CIO Stone and Quarry Workers local to disaffiliate
and write a new contract under the United Mine Workers of America. The workers
officially voted and informed the company not to sign, amend or extend any contract
with the CIO. Despite this official action and notice by a substantial majority of the
workers, the company and the CIO have attempted to work out an illegal back-door two
year agreement under an administrator set-up against the wishes of the workers.
In addition to a strike for the two discharged workers, it will also be a strike for
recognition of the United Mine Workers of America, and a new contract with proper
wages, hours and working conditions from January 15, 1953 on.
/s/ Cordell Holloman
President Tungsten Local Union
United Mine Workers of America
During the strike various unlawful and coercive acts, hereinafter outlined, were committed,
and on January 14, 1953, a temporary restraining order was issued by the Honorable Clawson
L. Williams, judge, superior court, Vance County, North Carolina. Thereafter, on or about
February 3, 1953, the United States District Court for the Eastern District of North Carolina,
Raleigh Division, entered its decree restraining and enjoining certain conduct, "pending the
final adjudication of this matter by the National Labor Relations Board." Shortly after the
issuance of the last-mentioned injunction the strike ended.
Wood, a representative of the UMW, at the Company's place of business on January 14,
1953, read to the pickets the State court restraining order, announced that "after midnight
District 50 would be conducting the strike" and told the pickets "not to hurt people," "to
conduct the strike in an orderly manner" and to obey the restraining order "to the letter."
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 917
Shortly thereafter Robinson , another representative of UMW, distributed among The pickets,
signs and buttons indicating the UMW was supporting the strike . The signs also stated that
the strike was "for recognition " of the UMW. Within the next few days UMW "strike head-
quarters " was established " in a little store" and Robinson paid the rent.
During the period when theUMW was seeking recognition from the Company , representatives
of UMW told employees that if they (the employees ) "would stick together there that we could
get anything we wanted ; said we might have to strike to get recognition , but said we could do
that. " Thereafter , the employees talked among themselves about the strike and "the nature
of that talk was to scare them out, told them they were liable to get their houses blown up."
On January 9, 1953, and shortly after the strike began pickets talked about "how easy it would
be to drive up one street and throw dynamite in the house of" Daniel Hayes , an employee who
had started to go to work but changed his mind and joined the pickets, and talked about
catching "those boys that went" to work "when they came off from work" and "give them
a beating."
During the strike (the record does not reveal the date ) attempts were made to dynamite
the powerline that carries "all the power " usedby the Company. Four strikers were arrested
for engaging in this conduct. UMW representatives visited these strikers while they were in
jail and provided bonds for them.
On January 9, 1953 , after the strike had started , Wade Pack went to the Company's place
of business to get his son (James Pack ) who was working. Wade Pack heard George Pendley,
a striker , "making some statements to the boys there that they were not going to have any
drinking or disturbance on the picket line" and "took it for granted that he [Pendley] " was in
charge. Wade Pack told Pendley his (Wade Pack 's) son was working and told him (Pendley)
"I [Wade Pack] don't think they ought to do anything to him, he got in before the strike was
called or pulled , and he [Pendley] said you need not worry about anything happening to him
on the picket line, he [Pendley ] said if it did [if anything happened ] it would be between here
and home." Earlier in the evening Wade Pack had left his work and as he passed the pickets
was told by Holloman " it was good to see " him (wade Pack ) "out."
On January 11, 1953, as James Pack started through the Company 's gate, a picket (Knox
George) told Pack "we will appreciate it if you don't work" and said "you never know what
is going to happen at home , if you work."
On Monday , January 12, 1953 , Joseph Roy Self, a truckdriver for the Company , worked.
That evening , around 7 o'clock Holloman came to his (Self's home ) and said to Self "I under-
stand you worked today. " When Self answered that he had worked , Holloman said "well the
boys don't hold nothing against you for working today, but not go in any more until we can get
our strike through . I don't know what the boys will do to you."
Norman Davis Holloway, Jr ., an employee of the Company , worked January 9, 10, and 11,
1953 . On Monday , January 12 , 1953 , Perry Hayes, a striking employee of the Company (not
otherwise identified ) in a "City Service Station in Henderson" (about 17 miles from the
Company 's place of business ), told Holloway he (Hayes ) heard Holloway's name "mentioned
last night among the strikers " and told Holloway not to go back to work and if he did "they
would get me before I got home" and "I [Hayes] would hate to see anything happen to you
for no telling what would happen."
On Monday evening, January 12, 1953 , two automobiles, containing workers , with an escort
of company guards , left the Company's main gate . As they approached the "Sneed shaft"
(another mine about 3/4 of a mile from the main gate) they were stopped by "50 to 75 men
milling around ." James Brandon, one of the workers being escorted , was told by the pickets
"they would get me when I got home."
On Tuesday , January 13, 1953 , Benton B. Bailey, assistant to the general manager of the
Company, and two company guards escorted employees to the Company 's place of business.
As this caravan approached the vicinity of the Company's place of business an automobile,
containing several pickets , which had followed the caravan a short distance , passed it,
"swung to the left and cut diagonally back to the right, blocking the road. " Bailey "drove
up" to this car and stopped. As he did so, "all these pickets [estimated to be in the neighbor-
hood of 75 to 100] surged toward his car." Bailey got out of his car to talk to the pickets,
but, before he could say anything Lucius Williams , a former employee of the Company but
a picket, got out of the car of pickets and "hit me and knocked me to the ground ; I got up and
was hit several times before the guards came over " and broke the "fight" up. There is no
evidence that any officials of Respondents ' was present at this fracas.
As Eddie Lee Bar and " four more boys " approached the Company 's place of business on
Tuesday, January 13, 1953 , between 50 and 75 pickets hollered "don't go in that gate" and
gathered around the automobile containing Bar and the others and told them "any man goes
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in that gate gets the hell beat out of him when he comes out." The automobile containing Bar
and the others then left the vicinity of the Company's main gate and were immediately
followed by "four cars" containing men from the picket line. The automobile containing
Bar was followed for about 17 miles. During this trip the automobile containing Bar tried to
outdistance the pickets by driving at a speed in excess of 75 miles per hour and by weaving
"back and across the road." Nevertheless, they were forced into a ditch, a rock was thrown
through the driver's side of their windshield and, when they stopped for a traffic signal,
the pickets "caught hold of" the automobile containing Bar and others "and tried to open
the door and caught hold of the bumper."
Bar, the only witness who testified concerning this incident was not able to identify any of
the pickets involved in the above incidents.
On January 13, 1953, Cecil Raymond Williams, a lieutenant in the North Carolina State
Highway Patrol, accompanied by Captain Lewis, of the State Highway Patrols visited the area
of the Company's place of business "to keep the highways open and maintain order on the
highways." They arrived at the Company's place of business at about 6 p.m. and observed
a crowd of men at the main gate, "trying to get cars to stop." Efforts were made by the
crowd to get the police to stop "the cars for them" and "there was a mixture of threats"
and protestations of no intention of "hurting" anyone. UMW representatives Wood and
Robertson were present at the picket line and that evening pledged their support in helping
to "maintain" order on the highway." Later that evening the pickets again sought from the
police, help in stopping the cars and again there were statements indicative of nonpeaceful
intentions and statements indicative of only peaceful intentions.
At 11:40 p. m. (January 13, 1953) 2 automobiles occupied by nonstrikers left the plant
escorted by the highway police, fore and aft. As this convoy got about 300 yards from "the
main gate" a group of pickets, waiting by a fire, "ran across the road, got in cars and
followed the convoy. There were nine cars following the workers. Most cars filled with
pickets." At Henderson (a city about 17 miles from the Company's place of business) the
convoy divided. The group being escorted by the highway patrol continued to the patrol
station (near Oxford) where the pickets endeavored to get to the workers and made threats
to turn over the car containing the workers until the police with "tommy guns and gas guns"
ordered the mob to disperse.
On Monday, January 12, 1953, as John Hargrove was walking along a street in Henderson
"a car run up side of" him and he was told by an occupant thereof (a striker, not otherwise
identified) that if he worked at the mine he was "liable to get killed coming back" or come
back and find the front part of "his house torn down." Nevertheless, Hargrove went to work
that day and worked until about 11:30 p. m. He arrived home at about 12:45 a. m. January 13,
1953. Shortly thereafter six men (not identified) "knocked on the door and asked, is this
where John Hargrove lives9 " Hargrove answered "Yes" and the men said "if you go back
to work, we are going to get you" and then left. Hargrove thereafter worked during the strike.
On January 16, 1953, Morris Richardson, a striker, said to Hargrove, in Henderson,
"did you get our notice not to go back to work." When Hargrove answered "you all ain't
paying me nothing and the union ain't either" Richardson showed him "a shot gun." Hargrove
continued on his way to the Company's place of business and worked that day and the next.
After working at the mine on January 17, 1953, Hargrove worked in his garden. While
gardening Hargrove noticed "three men coming straight to my kitchen window" and hid
from sight until they were within 2 or 3 feet of him. Then Hargrove said, "where in hell are
you going" and the men "throwed their hands up." Hargrove chased the men away. Hargrove
identified one of the men as an employee of the Company but could not otherwise identify
him.
Hargrove worked at the Company's place of business on Sunday, January 18, 1953, and got
home that night between midnight and 1 a. m. What happened after that can best be described
by quoting from Hargrove's testimony.
Q. Did anything happen to you that night?
A. Yes, Sir, I had got home and had washed my face and et supper and got in bed,
had not been in bed but about 5 minutes and heard a should [sound] like somebody shot
in a barrell , sounded "boom ;" I sit up in the bed , I sleep on the back next to the window
and I pulled the shade back and peeped out and a car came down Farrow Avenue and the
7 Later Corporal Rawles and Sergeant Cook joined Williams and Lewis.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 919
car was running so fast , it didn't have any lights , 60 miles an hour , and got near my
house and slowed up and shot side of my house and turned up the other street.
Q. He shot into your house
A. Yes, Sir.
Q. Did the shot hit your house?
A. Yes, Sir, three shots come throughthe beaver board right up here and come through
the door.
Q. What did you do?
A. I jumped out of the bed and grabbed the gun and run in the front room to get to
shells , and they were not none on the dresser and I pulled the shade back and he turned
his lights on and there is a street light there and he went under a street light and he
turned his lights on and I knowed his car.
Q. Whose was it , whose car was it?
A. Morris Richardson.
Q. Was that the same man who had spoken to you Friday?
A. Yes , Sir, the same man.
After Hargrove finished his work at the Company 's place of business on January 19, 1953,
and had returned home he was visited by James Whitley (a striker --not otherwise identified)
and told by Whitley that " they will horsewhip you like hell " if you go to work any more.
Robert Ragland began working for the Company on January 16, 1953 . That evening Morris 8
Richardson asked him whether he had worked at the mine that day and upon receiving an
affirmative reply said "don't be surprised what happens to you now."
Ragland worked at the Company 's place of business on January 18, 1953. That night about
11:30 his "house was shot in." Ragland went to the door looking for the individual that fired
the shot and heard a voice say "keep yourself from that mine over there ." Ragland could
not identify the person or persons involved in this incident . The house of Ragland 's brother,
Steven, was also shot into . It was stipulated at the hearing herein that Richardson "was a
member of the United Mine Workers ," that Richardson , after a plea of not guilty and without
benefit of counsel , "was convicted in the Recorder's Court" of " shooting into Steven Ragland's
house" and that Fohl, by a check bearing a notation that the sum stated on the check had been
collected on behalf of Richardson , paid Richardson's fine.
Floyd Boyd started working for the Company on January 16, 1953 .9 That evening Willie
Mitchell (a striker and one of the pickets on "a couple of times" - -not otherwise identified)
called at the home of Boyd and told him (Boyd ) he had "better stop working there , the boys
would get me." Boyd worked Saturday and Sunday (January 17 and 18 , 1953 ). After he (Boyd)
got home Sunday , and about 10 p. m . he saw a group of men going in and out of Mitchell's
house (" Fifty or seventy five yards " from Boyd ' s house ) and back and forth to the car (4
or 5 automobiles were parked in front of Mitchell's house) and about 11 o'clock
the cars started leaving one by one like, they drive on by home with the lights off, and all
the automobiles left but one ; the last one left turned his lights on and drove on by the
house [Boyd 's house] and slowed up and shot in the window and never stopped.
Boyd could not identify the person that shot into his house.
On Tuesday , January 20 , 1953 , Freddy I.ee Scott , a picket, pointed a finger at James
Brandon, as he (Brandon) left the Company 's place of business , and said "I am going to
get that son -of-bitch." A few minutes later, as Brandon was driving from the mule , Scott,
in an automobile , deliberately rammed into the side of the car driven by Brandon and then
left the vicinity of the encounter . Scott was arrested and charged with "hit and run and
assaulting with a deadly weapon ." The morning following Scott 's arrest , Fohl, Wood , Robertson,
and Holloman , representatives of the UMW , sought to have his bail reduced and arranged for
bail in the amount of $1,000.
John B. Eaton was employed by the Company on January 19, 1953. On Wednesday, January
21, 1953 , while walking to work Eaton was stopped by "seven men in a '40 model Pontiac"
and told not to go to that "damn mine" and that if he did "we will grab you and beat hell out
of you ." Eaton was not able to identify the men in the Pontiac except that they were in the
8In the record also spelled "Maruice" and "Maurice "
9 The transcript of Boyd's testimony reflects this date as 1952. It is apparent from his
entire testimony that the correct date is 1953 and the transcript is hereby corrected.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pontiac, headed toward the Company's place of business and were seen by him later that day
at the mine entrance as he (Eaton) went to work.
Conclusions Regarding Legality of Strike
It is apparent from the facts outlined above that the strike at its instigation was not one to
compel recognition of the UMW as the bargaining agent for the employees involved herein,
but that shortly after its beginning this became one of the purposes of the strike. It is also
clear that District 50, United Mine Workers of America, Tungsten Mining Local of United
Mine Workers of America, Robert R. Fohl (director, Region 19, District 50, United Mine
Workers of America) and William Cordell Holloman (president, Tungsten Mining Local,
UMWA), the Respondents herein, engaged in, and induced or encouraged employees of the
Tungsten Mining Corporation to engage in, the strike for the purpose of forcing or requiring
the Tungsten Mining Corporation to recognize and bargain with Respondent District 50.
The Act makes it an unfair labor practice for a labor organization or its agents to engage
in, or to induce or encourage the employees of any employer to engage in, a strike or a
concerted refusal in the course of their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or commodities or to perform
any services, where an object thereof is:
... forcing or requiring any employer to recognize or bargain with a particular labor
organization as the representative of his employees if another labor organization has
been certified as the representative of such employees under the provisions of Section
9;...
No contention has been made herein that the consent determination of representatives,
issued in April 1946, is not the type of certification contemplated by the above quoted section
of the Act. In any event, the undersigned believes and finds the certifications contemplated
by the above-quoted section of the Act includes consent determinations of representatives. 10
Assuming that a consent determination satisfies the above-quoted requirement that there be
another labor organization certified by the Board, a question arises as to whether a strike
for recognition in the face of a certification almost 7 years old violates the above-quoted
section of the Act (Section 8 (b) (4) (C).
As noted above, Section 8 (b) (4) (C) prohibits a strike for recognition "if another labor
organization has been certified...... Thus, the answer to the question posed above depends
upon whether, at the time of the strike herein, the Stone Workers was a labor organization
which "has been certified."
The legislative history of the Act indicates that the objective of Section 8 (b) (4) (C) is to
prohibit strikes designed to compel an employer to disregard the obligation placed upon him
by reason of a certification issued by the National Labor Relations Board and that Congress
had in mind a current (not a "stale") certification.
In Botany Mills, Inc., 101 NLRB 293 (t-RC-5016) the Board dismissed a petition because
it found "the contract now in existence ... is a bar to an election at this time." In that case
a labor organization , certified by the Board on May 8, 1944, and having a history of consecutive
agreements since the date of the certification, filed a petition under Section 9 (c) of the Act
(petition for certification) on July 28, 1952, and contended, inter alia , that its earlier certifica-
tion (the one issued in 1944) was "stale" and would not afford it "the protection and benefits
of Section 8 (b) (4) (B), (C) and (D)" of the Act. In dismissing the petition, filed in 1952, the
Board said:
"Section 6 of the Act provides: "The Board shall have authority from time to time to
make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act,
such rules and regulations as may be necessary to carry out the provisions of this Act."
Moreover, Section 9 (c) (4) of the Act provides, "Nothing in this section shall be construed
to prohibit the waiving of hearings by stipulation for the purpose of a consent election in
conformity with regulations and rules of decisions of the Board " The legislative history
of the Labor Management Relations Act makes it clear that Congress placed its stamp of
approval on the Board's practice under the Wagner Act and by way of its Rules and Regula-
tions of permitting consent-election agreements and the certification by Regional Director
of the results of such election with the same force and effect as if issued by the Board itself.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 921
... as this Petitioner was certified by the Board in 1944 as the representative of these
employees , and because the record discloses a continuous and harmonious history of
collective bargaining which assumes the current validity of that certification, we find
that the contract now in existence ... is a bar to an election at this time.
As noted above , the Board in the Botany case stated that a certification followed by 8 years
of consecutive agreements (facts similar to those herein ) "assumes the current validity of
that certification " and therein indicated that it would consider the certification herein, and
the obligation imposed thereby , current. n Absent the Botany case the undersigned would be
included to hold that Section 8 (b) (4) (C) encompasses only a situation where there is a
certification not vulnerable to attack under any of the various sections of the Act . However,
the undersigned believes the doctrine of stare decisis applicable herein (believes that he
should abide by and adhere to the rule laid down in the Botany case ). It follows that the Stone
Workers was a labor organization which "has been certified " within the meaning of Section 8
(b) (4) (C) and that the strike violated this section of the Act.
Conclusions Regarding Restraint or Coercion
As noted above, the record reveals that Respondents engaged in , and induced or encouraged
employees of the Tungsten Mining Corporation to engage in, the strike and reveals a number
of incidents portraying the kind of conduct which this Board has found violative of Section 8
(b) (1) (A) of the Act (incidents of restraint or coercion of employees ) and the issue is whether
or not Respondents are responsible for this conduct. 12
Liability for torts or other wrongs has traditionally depended on whether the agent or
servant was acting within the scope of his employment , despite the absence of actual or
apparent authority. One of the purposes of the picketing was to persuade employees of the
Tungsten Mining Corporation not to work at the Company's place of business . In furtherance
of this objective , the authorized pickets engaged in conduct proscribed by the Act. They
were therefore acting within the scope of the very purpose for which Respondents engaged
their services . Accordingly , the undersigned finds that Respondents are liable for the action
of its pickets which occurred at, or in the immediate vicinity of, the picket line. (See Inter-
national Longshoremen 's and Warehousemen 's Union , 79 NLRB 1487; United Furniture
Workers of America , CIO, 84 NLRB 563, and National Union of Marine Cooks & Stewards
et al., 87 NLRB 54.)
In view of Respondents ' statements that the strikers should "keep order on the picket
lines ," that there should be "peace and quiet at all times ," that the pickets should not
"hurt people" and that the strike should be conducted in an orderly manner, a question
arises as to whether Respondents adequately disavowed proscribed conduct so that the
coercive conduct outlined in this report may not now be imputed to it. Employer declarations
of neutrality couched in general language which do not contain specific disavowals of past
coercive conduct on the part of supervisors and which do not specifically disclaim respon-
sibility for future acts of a like nature by supervisors are usually regarded as inadequate
to relieve an employer from responsibility for such conduct . (See H . I. Goode d/b/a Goode
Motor Company , 101 NLRB 43 and cases cited therein). The undersigned believes that a
similar principal should be applied with respect to union statements of disavowal of coercive
conduct. It is clear from this record that at least on and after January 10, 1953 , Respondents
and each of them sponsored the strike and authorized the picketing and signs carried by the
pickets . It is also apparent that at various times throughout the strike Respondents, and
others with their consent, acted as picket captains . The record also reveals that Respondent
"See also Intermediate Report in Sindicato de Trabajadores de la Industria Azucarera de
Guanica, affiliated with Sindicato de Trabajadores de la Industria Azucarera , CGT-CIO, et al.,
Case No. 24-CC-6, to the effect that a union which by strike action attempts to compel an
employer to recognize it rather than the certified union does so at its peril and, in view of
the presumptive validity of certifications, violates Section 8 (b) (4)'(C).
12 The undersigned deems it unnecessary to rule upon , and is not ruling upon, the General
Counsel 's contention that Respondents "as joint venturers embarked on an unlawful venture"
are responsible "for the actions resulting therefrom." (See N. L. R. B. v. Jarka Corporation
of Philadelphia , 198 F . 2d 618. ) The undersigned rejects the contention of the General Counsel
that "because [the strike] violateda no- strikeclause in the then current, valid contract . . , '
the strike violated Section 8 (b) (1) (A) of the Act.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holloman (president, Tungsten Mining Local, UMWA) engaged in conduct proscribed by the
Act and it is a reasonable inference (in view of the extensive and aggravated nature of the
coercive activities at the picket lines and away therefrom, the small sizes of the communities
surrounding the Company's property and the "many reports in the local papers about the
strike") that he and the other Respondents were aware of the conduct outlined in this report.
The record reveals also that Respondents put up $20,000 in bonds for 4 strikers arrested
for attempting to dynamite the powerline leading to the Company's plant, and a $1,000 bond
for Freddy Lee Scott, a picket, when he was arrested for the assault upon James Brandon.
Under these circumstances, it is believed that Respondents' disavowals were not adequate
disavowals or repudiations of the coercive conduct involved herein and did not adequately
bring home to the nonstriking employees Respondents' repudiation of any coercive conduct
that might be made by the strikers and/or pickets, so that the nonstriking employees had no
just cause to believe that the strikers and/or pickets were not acting for Respondents in
engaging in the coercive conduct herein outlined.
The undersigned finds the conduct noted immediately below occurred within the immediate
vicinity of the picket lnes, was outside the permissible limits of the Act, and infringed upon
the rights guaranteed employees in Section 7 of the Act, and that Respondents thereby
restrained or coerced employees in violation of Section 8 (b) (1) (A) of the Act.
(a) The threat to throw dynamite in the house of Daniel Hayes and to catch employees that
went to work and give them a beating when they "came off from work."
(b) George Pendley's implied threat to Wade Pack that something might happen to his
(Pack's) son because he (Pack's son) worked during the strike. is
(c) The statements to James Pack, as he started through the Company's gate, that "we will
appreciate it if you don't work" and "you never know what is going to happen at home, if you
work."
(d) The statement to James Brandon, at the "Sneed Shaft," that "they would get me when I
got home," made on January 12, 1953.
(e) The blocking of the road and the assault upon Benton B. Bailey, in the presence of
nonstriking workers. (See International Union et al., 84 NLRB 136, and United Furniture
Workers et al., 81 NLRB 886.)
(f) The threat to beat "the hell" out of any man who "goes in the gate," made to Eddie
Lee Bar and "four more boys" on January 13, 1953.
(g) The threats made at the picket line in the presence of Lieutenant Williams and others.
(h) The epithet and threat made to James Brandon at the picket line on January 20, 1953.
There remains to be considered the acts of restraint or coercion which occurred away from
the vicinity of the picket lines. Many of these acts followed a pattern of conduct established
at the picket lines and were in point of time, contemporaneous with the acts of restraint or
coercion which occurred there, i. e., the trailing of Bar on January 13, 1953, the trailing of
nonstrikers when they were being escorted by the highway patrol and the threatening of said
nonstrikers on January 13, 1953, and the assault upon James Brandon on January 20, 1953.
Other coercive acts away from the picket lines, although not in the nature of acts which might
be considered parts of the res gestae, were, nevertheless excursions in furtherance of the
purpose of the strike and extensions of the conduct which took place at the picket lines, i. e.,
Holloman's threat to Self on January 12, 1953; Hayes' threat to Holloway, Jr., on January 12,
1953; the threats to Hargrove on January 12, 13, and 19, 1953; the threat to Boyd by Mitchell
on January 16, 1953; and the activities of Morris Richardson. In this situation it may be
said that the ugly flower of unlawfulness which blossomed away from the picket lines resulted
from the seed of defiance planted and nurtured at the picket lines.
Since, as noted above, the strike was an illegal one for recognition, it was also an illegal
restraint or coercion of employees in the exercise of their right to bargain collectively
through representatives of their own choosing and was therefore in violation of Section 8 (b)
(1) (A) of the Act.
In view of all of the foregoing considerations, the undersigned concludes and finds that
Respondents violated Section 8 (b) (1) (A) of the Act by striking to force or require the Company
to recognize or bargain with the UMW and by the conduct previously enumerated and by the
restraint and coercion enumerated >a below.
i3Since the threats noted in (a) and (b) above were made, apparently, before Respondent
District 50 and Respondent Fohl became affiliated with the strike, no finding is made that they
violated the Act by this conduct
Min the circumstances of this case none of the conduct enumerated in this report can be
considered views, arguments, or opinions within the meaning of Section 8 (c) of the Act.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA 923
1. By trailing nonstrikers . See International Longshoremen 's and Warehousemen 's Union,
et al., 79 NLRB 1487.
2. By threatening Roy Self, Norman Davis Holloway , Jr., John Hargrove , Robert Ragland,
and Floyd Boyd. 15
3. By the assault upon James Brandon.
4. By the attack upon the house of John Hargrove. 16
Ultimate Findings and Conclusions
In view of the foregoing , and upon consideration of the entire record, the undersigned finds
and concludes that:
1. Tungsten Mining Corporation is engaged in commerce within the meaning of the Act.
2. District 50, United Mine Workers of America ; Tungsten Mining Local of the United
Mine Workers of America , and United Stone and Allied Products Workers of America, Local
Branch 98 are labor organizations within the meaning of the Act.
3. By the conduct enumerated above in the section entitled "conclusions regarding restraint
or coercion ," Respondents and each of them has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A ) of the Act.
4. By engaging in, and inducing or encouraging employees of the Tungsten Mining Corpora-
tion to engage in, a strike where an object thereof was: forcing or requiring the Company to
recognize or bargain with UMW, Respondents engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (C ) of the Act.
5. The aforesaid unfair labor practices occurring in connection with the operations of
Tungsten Mining Corporation , have a close , intimate , and substantial relation to trade , traffic,
and commerce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
[Recommendations omitted from publication.]
APPENDIX A
DISTRICT 50, UNITED MINE WORKERS OF AMERICA
900 15th Street , Northwest
Washington 5, D. C.
October 22, 1952
J. R. Sweet, Vice President and General Manager
Tungsten Mining Corporation
Box 81
Henderson , North Carolina
Dear Sir:
When Representatives of the United Mine Workers , Walter A . Shuey , Lincoln Wood and the
writer of this letter, paid a personal visit to you on Thursday . October 16, 1952, we advised
you that a very substantial majority of the top side and underground production and maintenance
workers of your Tungsten Mining Corporation were members of the United Mine Workers of
America.
15 The undersigned makes no finding that Respondents are responsible for the threat made
to John Eaton , since the undersigned believes the evidence concerning the identity of the
persons who made this threat insufficient to connect Respondents thereto.
16 The undersigned makes no finding that Respondents are responsible for the attack upon
the houses of Robert and Steven Ragland or the attack upon the home of Floyd Boyd . Robert
Ragland and Floyd Boyd were the only witnesses who testified concerning the attacks upon
their houses and they were not able to identify ( even as strikers and/or pickets ) the individuals
involved in these activities . The only evidence in this record that Steven Ragland 's house
was attacked consists of the stipulation that Richardson was convicted of "shooting into
Steven Ragland 's house. " The undersigned believes this insufficient to warrant a finding
herein that Steven Ragland's house was attacked by Richardson.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also told you at that time that the United Mine Workers of America would not use the
facilities of the National Labor Relations Board, for reasons of our own principles, and on
which you voiced nothing but agreement by your silence . We advised you that the State Labor
Department of North Carolina , or various other methods were open to settle this issue by
voluntary means.
You now, by your letter of October 21, 1952, extend the generous offer, and courtesy, to
the United Mine Workers of America, and more directly to your own workers, that you "see
no basis for any conference" and that you "will continue to recognize " the vacilliating, weak
and non -existant union of Sam Scott.
We told you the United Mine Workers bf America and your own workers included; were
asking only for what was their right. Is it not their right to determine what Union they desire?
There is no law, or intent of any law, that procedure before the NLRB is compulsory. What
moral right have you to attempt to decide this issue by arbitrary methods with no alternatives?
If you intend to do what is right by your employees, you would first refuse to recognize
union until this issue is settled. Secondly, you would voluntarily allow a secret vote by the
workers involved thru one of the many methods suggested . This move by you would cause Sam
Scott to first scurry to the all embracing arms of the NLRB to get an election, without our
Organization on the ballot, which is okay by us. The workers could then repudiate the do-
nothing policies of the Stone Workers so-called "Union," and relieve the qualms in your
mind that his is the "certified" Union.
Is it mainly this question that troubles you, or, is it which Union will be the easiest to
deal with? Is it the question that Scott's is the "certified" union or that his union has, and
will allow distorted profits to flow in the direction opposite from the pay checks of the men
who produce the tungsten by their labor?
Obviously, you are not really concerned what Union your men have, or even if they have
onel Your natural worry and concern is the wages , hours and working conditions you have
to extend. You also know that if you have decided to fight against proper pay and other
conditions for your workers you might as well fight on the first line of defense--the one of
recognition , and use Sam Scott as your willing tool.
The United Mine Workers of America knows, and I pray all of our members in your mine
and plant knows , that there is no National Labor Relations Board or other Governmental
Agency that will conduct a vote, or take any other action to see that they automatically get
proper pay and other considerations . It must be done by their own determination of purpose
and economic action, if necessary. If we can never gain recognition and kick out an unwanted
union by our own strength, we might as well acknowledge we will never gain better wages
and conditions of work. The problems and solutions are both one and the same.
The United Mine Workers of America will never retreat from correct principles, or fail
to assist to the fullest any group of workers who ask only for their rights. We believe right
is worth making sacrifices for; we believe right is worth fighting for; and . we believe right
will prevail in the end! We intend to make it so, with the Good Lord willing. It is not the
intent of this letter to cast any aspersions but to speak only the truth as we see it. The doors
of this Union are always open and our time is at your disposal for any fruitful and constructive
purposes towards a proper and ethical settlement.
Very truly yours,
/s/
Robert R. Fohl
APPENDIX B
N-O-T-I-C-E
STATEMENT OF COMPANY POLICY
This Company recognizes the right of its employees or to organize for the purpose of
collective bargaining . We cannot and do not wish to interfere with this right in any way.
The Company stands willing and ready to negotiate and discuss any and all labor problems
with the proper representatives of any duly elected Union certified to us by the National
Labor Relations Board.
However, the Company will not deal with a Union that will not qualify under the National
Labor Relations Board. Certain regulations have been issued and Boards set up by our
DEEP FREEZE APPLIANCE DIVISION 925
National Government under the National Labor Relations Act for the benefit of and protection
of both the employee and the employer. The National Labor Relations Board is recognized
by such unions as the A. F. L., C. L O., etc.
A Union not qualified with the National Labor Relations Board is not entitled to use the
facilities and protection of the Board.
This Company, as it has said before, will cheerfully bargain with any Union that our
employees may choose when it is certified to us by the National Labor Relations Board as
representing the majority of our employees.
On the other hand, we will not do business in any way with any Union which will not qualify
with the National Labor Relations Board and is not properly certified to us by it as the
bargaining agent for our employees.
If any strike is undertaken in an attempt to force us to recognize and negotiate with an
uncertified union we are advised that it would be unlawful and we would make every lawful
effort available to us to continue our operations.
We intend to continue to live up to our contracts and abide by the laws of the United States.
This October 27, 1952
TUNGSTEN MINING CORPORATION
/s/ /s/
James R. Sweet W. Lunsford Long
Vice President and General Manager Vice President and General Manager
DEEP FREEZE APPLIANCE DIVISION, MOTOR PRODUCTS
CORPORATION and DAVID W. OWER. Case No. 13-CA-
1295. August 26, 1953
DECISION AND ORDER
On June 8, 1953, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor prac-
tices alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
The Board' has reviewed the r}ilings 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 Intermediate Report, the General Counsel's
exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, only insofar as theyare consistent with
our decision herein.
The General Counsel excepts to the Trial Examiner's finding
that the discharge of David W. Ower did not violate Section 8
(a) (3) and (1) of the Act. We find merit in this exception.
1Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel[Members Houston, Styles, and Peter-
Son].
106 NLRB No. 150.