United Construction Workers

National Labor Relations Board - Board Decisions

Jun 29, 1951

94 N.L.R.B. 1731 (N.L.R.B. 1951)

UNITED CONSTRUCTION WORKERS, ETC. 1731
UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MINE
WORKERS OF AMERICA; DISTRICT 50, UNITED MINE WORKERS OF
-AMERICA ; AND CHARLES A. NEAL, ELZA JOHNSON AND SHERMAN
BLACKSHIRE, THEIR AGENTS and KANAWHA COAL OPERATORS' Asso-
CrATION. Case No . 9-CC-31. June 29, 1951
Decision and Order
On October 27, 1950, Trial Examiner Allen MacCullen 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 there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respon-
dents filed exceptions to the Intermediate Report and a supporting
brief.' The charging party filed a brief in support of the Inter-
mediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the.hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the.case, and hereby adopts the fmdings,2 conclusions; ,and. recom-
mendations of the Trial Examiner with the following modifications :
. 1. The Respondents except to the Trial Examiner's finding that
Carbon and the Timbermen are engaged in commerce within the
meaning of the Act and that it will effectuate the policies of the Act
I The Respondents also requested oral argument . As the record and briefs in our
opinion , adequately present the issues and the positions of the parties, this request is denied.
2 The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner's ultimate conclusions , or our concurrence in
such conclusions . Accordingly , we make the following corrections : ( 1) The record shows
that the correct name of the general mine foreman of #12 mine is H. T. Henry and
not H. T. Holley as indicated by the Trial Examiner ; ( 2) the Trial Examiner refers to
a statement made by the chairman of the mine committee at #12 mine to the general
mine foremen of that mine to the effect that the miners were not going to work because of
the pickets who had asked them not to work. The Trial Examiner ordered this testimony
stricken from the record at the hearing upon the ground that it was hearsay . Accord-
ingly, we do not rely upon it in making our findings herein ; ( 3) the Trial Examiner states
that not one of the three men produced by the General Counsel in rebuttal testified about
interviewing truck drivers . The record shows that one of them , namely, Starr, did so
testify; .( 4) the Trial Examiner states that a group of men left Cabin. Creek Junction
in four cars, three of them driven by Johnson , Blackshire , and Brown , and the driver of,
the fourth car not being disclosed . The record shows that there were only three cars
and not four ; ( 5) the Trial Examiner indicates that the evidence is clear that Johnson,
Blackshire , and Brown were present at the Junction on May 17, 1950, and May 18, 1950.
The record supports the conclusion that Johnson and Blackshire were present on both
days, but that Brown was there only on May 18 , 1950; ( 6) the Trial Examiner states that
when Saul was stopped , one of the pickets asked Saul where are your stickers , and told
Saul that he would have to join the Association . The Trial Examiner ' s reference to
one of the pickets asking Saul. where his stickers were apparently was taken from an
offer of proof which was rejected . Accordingly, we do not rely on this particular portion
of testimony.
94 NLRB No. 236.
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Board to assert jurisdiction. In the Jamestown decision,-'
which was concerned with the application of the Board's recently an-
nounced jurisdictional standards to secondary boycott cases of the
type here involved, we stated that, while such standards are fully
applicable to these types of cases, we would consider not only the
operations of the primary employers, but also the operations of any
secondary employers, to the extent that the latter are affected by the
conduct involved. Thus, if the business of the primary employer or
that portion of the secondary employer's business which is affected by
the alleged boycott or a combination of both meet the minimum re-
quirements of the Board's current policy, jurisdictionwill be exercised.
The record in the instant case reveals that Carbon-the secondary
employer-has five mines located in West Virginia. The approxi-
mate value of its business is $5,250,000, of which about $2,000,000 in-
volves shipments outside the State of West Virginia. We are satisfied
that all of the operations of Carbon were affected by the secondary
boycott activities found herein 4 We find that Carbon is engaged in
commerce within the meaning of the Act and, as its operations more
than meet the minimum requirements of the Board's current policy,
it will effectuate the policies of the Act to assert. jurisdiction in this
case.
2. We find, as did the Trial Examiner, that the Respondents in-
duced and encouraged the employees of Carbon to engage in a strike
and a concerted refusal in the course of their employment to use or
otherwise handle or work on mine timbers, with the objects of (1)
forcing or requiring Carbon to cease doing business with Timber-
men, s and (2) forcing or requiring Timbermen as employers ' and as
self-employed persons to join Respondent United and the Associa-
tion, 7 all in violation of Section 8 (b) (4) (A) of the Act, and with
the further object of (3) forcing or requiring Timbermen to recognize
and bargain with Respondent United as the representative of the em-
ployees of Timbermen, despite the fact that United had not been
certified as the bargaining representative of such employees, in viola-
tion of Section 8 (b) (4) (B).11
3. The Trial Examiner found that the Respondents violated Sec-
tion 8 (b) (1) (A) in the following respects:
3 Jamestown Builders Exchange, Inc., 93 NLRB 386.
'We have not overlooked the fact that the picketing activity at Carbon occurred at
only three of its mines . However, as all five mines are located within the same general
area, produce the same product , and are operated by one company , we regard each of
the mines to be an integral part of Carbon 's operations . Indeed, giving due consideration
to the nature of mining operations , Carbon's operations are equitable to a single plant
having five entrances , with the result that by picketing less than all the entrances the,
Respondents ' cannot be said to have picketed less than the entire business.
s In view of the above , we find it unnecessary to pass upon the commerce factors with
regard to the operations of the Timbermen-the primary employers.
UNITED CONSTRUCTION WORKERS, ETC. 1733
a. The activities of the Respondents in coercing Timbermen to join
the Association were a clear restraint and coercion on the employees
of Timbermen in the exercise of the rights guaranteed by Section 7
because if the Respondents succeeded in coercing the Timbermen to
join the Association, their employees would be compelled to join
United to retain their jobs and would thus be deprived of their right
to join or refrain from joining a labor organization. We do not agree.
If the Respondents had forced the Timbermen to join the Association,
we would have found that by virtue of the illegal contract between
the Respondent United and the Association which would require the
employees of Timbermen to join United in order to retain their jobs,
that the Respondents had violated Section 8 (b) (1) (A) of the Act.
Here, the Respondents attempted to accomplish such an objective,
but failed and we believe that this attempt, whatever pressure, if any,
might be said to have been exerted thereby against the employees of
Timbermen, is not sufficiently direct to support a finding of a viola-
tion of Section 8 (b) (1) (A).
b. The coercion exercised upon the Timbermen, who were self-
employed truck drivers, to join Respondent United likewise deprived
Timbermen as employees of the rights guaranteed to them by Section
7. We disagree with this finding of the Trial Examiner. 'We do not
believe that self-employed persons are employees within the meaning
of Section 2 (3) of the Act. Therefore they are not entitled to the
protection of Section 7 of the Act.
c. The refusal of the pickets led by Johnson to permit George W.
Bryant to continue with his work of unloading the timber on his
truck because Bryant did not have a sticker on his .truck indicating
union membership, clearly deprived Bryant of his right under Section
6 The Respondents contend that the activities at Carbon were confined to interviewing
the truck drivers . The record supports the Trial Exanriner ' s conclusion that the
Respondents' activities were not so limited. While the signs which the pickets carried
did advertise that the dispute was between the Respondent United and Timbermen, the
record shows that the picketing occurred before the trucks of the Timbermen appeared
and continued after such trucks left and that one of the express purposes of the picketing
was to force Carbon to cease using Timbermen 's products . In these circumstances and
in view of the further fact that the Timbermen 's mills rather than their trucks were the
situses of the labor dispute, the Board regards its holdings in Sterling Beverages, Inc.,
90 NLRB 401 , and Western Inc., 93 NLRB 336, here controlling rather than the Schultz
Refrigerated Service, Inc. case, 87 NLRB 502 , relied upon by the Respon tents.
Inasmuch as the picketing by the Respondents at Carbon and the activities of Black-
shire and Neal on behalf of the Association so clearly establish this unlawful object, we
find it unnecessary to rely also ; as did the Trial Examiner , upon the Cabin Creek Junction
activities . Moreover, in the absence of. exceptions to the Trial Examiner 's recommended
dismissal of the allegation of such activities as a violation of Section 8 (b) (4) (A), we
,do not pass upon his finding of joint responsibility by the Respondents and the Association.
8 This unlawful object is apparent from the fact that the Respondents were seeking to
have Timbernren join the Association which had an association -wide closed -shop contract
with Respondent United. Thus , if the Timbermen had been forced to join the Association,
they would have become parties to the contract automatically and would have been
required under the terms of the contract to recognize and bargain with United as the
representative of their employees.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7 of the Act to join, or refrain from joining , any labor organizations.
We agree with this finding of the Trial Examiner.
In view of the above, we find that the only violation of Section 8
(b) (1) (A) of the Act by the Respondents was their coercive conduct
with respect to Bryant.
4. With respect to the responsibility of the Respondents for the
alleged. unlawful activities involved herein, the Respondents in. their
brief make the following contentions: (1) That there is no basis in
the record for the Trial Examiner's finding of participation by Jay
Brown in the alleged, unlawful activities; (2) that if the findings of
fact, conclusions of law, and recommendations of the Trial Examiner
to which they have excepted are made effective at all, they must be
limited to Region 23, United Construction Workers and Region 23,.
District 50; and, (3) that even if the unfair labor practices alleged
are found against the Respondent United, the complaint should be
dismissed as to Respondent District 50.
Regarding the Respondents' first contention, the participation of
Jay Brown in the unlawful activities hereinafter found is amply
supported by the record. The Respondents' second contention is with-
out merit for the record does not disclose that the regions amount to
more than purely geographic areas of union activity and nowhere
is it suggested that these regions constitute separate entities or inde-
pendent organizations. We find the Respondents' third contention
also without merit in view of the fact that by the agreement of June
5, 1942, Respondent United became a member of, and a division of,
Respondent District 50; that both Respondent Unions maintain the
same office and have the same officers; that Neal's meeting with the
organizers inaugurating the new campaign was apparently held with
all organizers of Respondent United and District 50; and that upon
the record in this case it is not possible to disassociate the activities
of Respondent United from those of Respondent District 56.1
5. The Respondents contend that the Trial Examiner's recom-
mended order is too broad in scope. We agree with the Respondents
to the extent that their contention is directed to the fact that the Trial
Examiner's recommended order as it now stands apparently would
prohibit lawful recognition strikes by the Respondent Unions against
the primary employers. We shall modify the Trial Examiner's
recommendations in this respect .10
9 Although it is true that the picket signs displayed at Carbon referred only to the
Respondent United and not to the Respondent District 50 and the contract of April 17,
1950 , was executed only by the Respondent United and the Association , we do not believe
these facts are sufficient to rebut the very persuasive evidence of dual responsibility of
the Respondent Unions for the activities involved herein.
10 Howland Dry Goods Company, 85 NLRB 1037 ; Western, Inc., 93 NLRB 336; Armco
Drainage and Metal Proudcts, Inc., 93 NLRB 751.
11
UNITED CONSTRUCTION WORKERS, ETC. 1735
Inasmuch as all the unfair labor practice violations found herein
are based upon the use of secondary pressure by the Respondents,,
our order is so limited. However, we do not intend to indicate there-
by that primary as well as secondary action is not proscribed by Sec-
tion 8 (b) (4) (A) where an object thereof is to force or require-
any employer or self-employed person to join any labor or employer
organization. This is an issue not presented to us for determination
in the instant case and therefore we do not pass upon it at this time..
Order
Upon the entire record in the case, and pursuant to Section 10 (c)'
of the. National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, United Construction
Workers, affiliated with United Mine Workers of America, and Dis-
trict 50, United Mine Workers of America, and their officers, repre-
sentatives, successors, assigns, and agents, including the Respondents
Charles A. Neal, Elza Johnson, and Sherman Blackshire, shall:
1. Cease and desist from :
(a) Inducing and encouraging the employees of Carbon Fuel Com-
pany or any employer (other than C. C. Huffman, John J. Lynch,
Clyde Saul, Charles Wesley Foreman, and George T. Wright) to en-
gage in a strike or a concerted refusal in the course of their employ-
ment to use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, or commodities, or to perform any
services for their respective employers, where an object thereof is
(1) to force or require any employer or self-employed person to join
any labor or employer organization; or (2) to force or require Carbon
Fuel Company or any employer (other than C. C. Huffman, John J.
Lynch, Clyde Saul, Charles Wesley Foreman, and George T. Wright)
or other person to cease using, selling, handling, transporting, or other-
wise dealing in the products of C. C. Huffman, John J. Lynch, Clyde
Saul, Charles Wesley Foreman, and George T. Wright; or (3) to force
or require C. C. Huffman, John J. Lynch, Clyde Saul, Charles Wesley
Foreman, and George T. Wright to recognize or bargain with United
Construction Workers, affiliated with United Mine Workers of
America, or District 50, United Mine Workers of America as the rep-
resentative of their employees unless and until such labor organiza-
tion has been certified as the representative of such employees under
the provisions of Section 9 of the Act.
(b) Restraining or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at their business office at Charleston, West Virginia, copies
of the notice attached hereto as Appendix A 1' Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by their official representatives, be posted by
them immediately upon receipt thereof and maintained by them for a
period of sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by said Respondents to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it -alleges
that the Respondents violated Section 8 (b) (4) (A) of the Act by
threatening, instructing, and ordering employees of Huffman, Lynch,
and Saul at Cabin Creek Junction to engage in a strike or concerted
refusal in the course of their employment to transport or otherwise
handle or work on mine timber and other material, an object thereof
being to force and require their employers to join United Construction
Workers, affiliated with United Mine Workers of America or District
50, United Mine Workers of America and Central West Virginia
Lumbermans' Association, and insofar as it alleges violations of Sec-
tion 8 (b) (1) (A) other than the one found herein, be, and it hereby
is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Orders.
Appendix A
NOTICE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT induce or encourage the employees of Carbon
Fuel Company or any employer (other than C. C. Huffman,
John J. Lynch, Clyde Saul, Charles Wesley Foreman, and George
T. Wright) to engage in a strike or a concerted refusal in the
course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, or com-
modities, or to perform any services for their respective em-
u In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted , before the words, "A Decision and Order," the words , "A Decree
of the United States Court of Appeals Enforcing."
UNITED CONSTRUCTION WORKERS, ETC. 1737
ployees, where an object thereof is (a) to force or require any
employer or self-employed person to join any labor or employer
organization; or (b) to force or require Carbon Fuel Company
or any employer (other than C. C. Huffman, John J. Lynch,
Clyde Saul, Charles Wesley Foreman, and George T. Wright) or'
other person to cease using, selling, handling, transporting, or'
otherwise dealing in the products of C. C. Huffman, John J.
Lynch, Clyde Saul, Charles Wesley Foreman, and- George T..
Wright; or (c) to force or require C. C. Huffman, John J. Lynch,.
Clyde Saul, Charles Wesley Foreman, and George T. Wright to,
recognize or bargain with United Construction Workers, affiliated
with United Mine Workers of America, or District 50, United
Mine Workers of America as the representative of their em-
ployees unless and until such labor organization has been certified
as the representative of such employees under the provisions of
Section 9 of the Act.
WE WILL NOT restrain or coerce employees in the exercise of the'
rights guaranteed in Section 7 of the Act.
UNITED CONSTRUCTION WORKERS, affiliated
with UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated---- By --------------------------------------------------
(Title of Officer)
DISTRICT 50, UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated---- By -------------------------------------------------
(Title of Officer)
Dated---- By -------------------------------------------------
(Agent ) ( Charles A. Neal)
Dated---- By -------------------------------------------------
(Agent) ( Elza Johnson)
Dated---- By -------------------------------------------------
(Agent ) ( Sherman Blackshire)
This notice must remain posted for 60. days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. Alan A. Bruckner, for the General Counsel.
Messrs.'Hillis Townsend and M. E. Boiarsky, of Charleston, W. Va., for, the
Respondents.
Messrs. David D. Johnson, Robert G. Kelly, and Frank R. Lyon, Jr., of Jack-
son, Kelly, Morrison and Morley, for Kanawha Coal Operators' Association.
STATEMENT OF THE CASE
Upon charges duly filed by Kanawha Coal Operators' Association , herein
called, Kanawha , the General Counsel of the National Labor Relations Board,
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called, respectively, the General Counsel' and the Board, by the Acting
Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint,
dated July 11, 1950, against United Construction Workers, affiliated with United
Mine Workers of America; District 50, United Mine Workers of America; and
Charles A. Neal, Elza Johnson,' and Sherman Blackshire, their agents, herein
called the Respondents and, on occasion, United, District 50, and Agents, re-
spectively, alleging that the Respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of Section S. (b) (1)
(A), (b) (4) (A), and (b) (4) (B) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. Copies of the complaint, the
charges, and notice of hearing were duly served upon the Respondents and
Kanawha.
With respect to the unfair labor practices the complaint alleged, in substance,
that since November 22, 1949, by demonstrations, statements, and acts consti-
tuting threats of reprisal and force, the Respondents have restrained and coerced
the employees of Carbon Fuel Company, herein referred to as Carbon, and C. C.
Huffman, John J. Lynch, and Clyde Saul, herein referred to as Timbermen, in
the exercise of their rights guaranteed in Section 7 of the Act in order to
compel said employees to join or assist United and District 50; by picketing,
orders, instructions, and related acts, to induce employees of Carbon to engage
in a strike, the objects thereof being to force Carbon to cease using the products
of, and doing business with, the Timbermen, and to force the Timbermen to join
United or District 50 and Central West Virginia Lumberman's Association,
herein referred to as Association; and the further object being to compel Tim-
bermen and other employers to recognize and bargain with United and District
50; and further by picketing public highways used by employees of the Timber-
men and other employers in making deliveries to Carbon, and threatening and
coercing said employees to engage in a strike, an object thereof being to force and
require their employers to join United or District 50, and the Association.
The Respondents duly filed a joint answer in which they denied commission
of any of the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Charleston, West Virginia, on July
31 and August 1, 2, and 3, 1950, before Allen MacCullen, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The General Counsel,
the Respondents, and Kanawha were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded to all parties.
At the opening of the hearing, General Counsel moved to add to the Timbermen
shown in the complaint the names of Charles Wesley Foreman and George T.
Wright, which motion was granted. Respondents moved at the opening of the
hearing and at the conclusion of General Counsel's case-in-chief to dismiss the
complaint, which motion was denied. This motion was renewed at the conclu-
sion of all of the testimony, and action thereon was reserved and is disposed
of herein. At the close of the hearing, General Counsel moved to amend his
answer to the motion for a bill of particulars to add the name of Jay Brown as
agent for United and District 50, in addition to Blackshire, Johnson, and Neal
originally named, which motion was granted over the objection of Respondents,
the latter being afforded the opportunity to request a continuance of the hearing
to present any additional defense by reason of the addition of Jay Brown as one
i The attorney representing the General Counsel at the hearing is also referred to herein
as the General Counsel.
2Elza Johnson was erroneously shown in the complaint as "Ezla Johnson" which was
corrected by counsel at the hearing.
UNITED CONSTRUCTION WORKERS, ETC. 1739
of the agents for Respondents, but Respondents declined to make such request.
General Counsel and Respondents both moved to conform the pleadings to the
proof with respect to typographical errors, dates, etc.,, which motions were
granted. Counsel was afforded opportunity to make oral argument before the
undersigned and to file briefs. No oral argument was made. A brief has since
been filed on behalf of the Respondents which has been carefully considered by
the undersigned.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF CARBON AND TIMBERMEN
Carbon Fuel Company is a West Virginia corporation engaged in mining, pro-
ducing, processing, and selling bituminous coal, with its principal place of busi-
ness in Wevaco, West Virginia. During the year 1949, which is representative
Of other times material hereto, Carbon mined 997,472 tons of bituminous coal,
Of the approximate value of $5,250,000, approximately 55 percent of which was
shipped to points outside the State of West Virginia ; during the first 7 months
of 1950, it mined approximately 700,000 tons of bituminous coal of the value of
about $3,500,000, approximately 55 percent of which was shipped to points out-
side the State of West Virginia. During 1949 the total amount expended for
material and equipment, including additions to capital, amounted to approxi-
mately $1,300,000, about 80 percent of which was manufactured in Pennsylvania,
Ohio, Illinois, New Jersey, and other States, and shipped to West Virginia.
C. C. Huffman owns and operates a sawmill at Big Chimney, West Virginia,
and produces mine timbers, headers, and posts. During the past year he sold
about $9,000 worth of mine timbers ; and employs about five men, and drives one
of his trucks delivering timber.
John J. Lynch owns and operates a sawmill at Klippers Creek, West Virginia,
and produces mine timbers, headers, inch lumber, and ties. During the past
year his gross sales have amounted to approximately $50,000, all to Carbon ;
he purchased a truck manufactured in Michigan, a chain saw, gasoline, grabs,
and other supplies aggregating about $15,000 from local dealers; he employs
12 to 18 men, and at times performs some of the work himself.
Clyde Saul operates a timber business in Lincoln County, West Virginia, and
during the past year has sold about $8,000 worth of mine timbers to Carbon ; he
employs from 10 to 15 men, and drives one of his own trucks.
Charles Wesley Foreman owns and operates a sawmill in Clay County, West
Virginia, and during the past year he sold approximately $15,000 of mine headers
to Carbon.
George T. Wright is engaged in the timber business at Winfield, West Virgina,
and during the past year sold mine posts, valued at about $7,000 to Carbon.
The undersigned finds that Carbon and the Timbermen are engaged in com-
merce within the meaning of the Act. As the shipment of goods by Carbon to
points outside of the State of West Virginia amounted in value to more than
$25,000 per annum, it will effectuate the policies of the Act for the Board to
assert jurisdictions While it may be true .that the operations of the Timber-
men, considered separately, could not be regarded as substantially affecting com-
merce, since Carbon is clearly engaged in commerce and since the alleged
activities of the Respondents were to force Carbon to cease doing business with
Stanislaus Implement & Hardware Company, Limited, 91 NLRB Q18.
1740 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
the Timbermen and to stop the flow of materials necessary to enable Carbon
to continue operations, the activities of the Timbermen as related to Carbon
have a substantial effect on commerce.`
II. THE LABOR ORGANIZATIONS INVOLVED
United Construction Workers, affiliated with United Mine Workers of Amer-
ica, and District 50, United Mine Workers of America, are labor organizations
within the meaning of the Act.
Central West Virginia Lumbermans' Association is an organization of indi-
viduals, partnerships, and corporations operating lumber and timber enterprises
who employ timber and sawmill workers, and is an employer organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background 5
United became affiliated with United Mine Workers of America, and became
a member of District 50 by agreement dated June 5, 1942, which provided, among
other things that :
The United Construction Workers shall retain its name in functioning
as a division of District 50, United Mine Workers of America.
The agreement of June 5, 1942, is still in effect. United, as a division of Dis-
trict 50, and District 50 maintain the same office in Charleston, West Virginia,
have the same officers, and Charles A. Neal, Elza Johnson, Sherman Blackshire;
and Jay Brown are agents for both, Neal being regional director, and Johnson,
Blackshire, and Brown being organizers.
For some time prior to May 1950 the organizers for United and District 50
made efforts to organize the workers in the sawmill and timber industry, but
the evidence disclosed that these efforts met with little success. There were
between 125 and 140 mills operating in the territory covered by District 50.
On April 17, 1950, United entered into an agreement with the Association
providing, among other things, for rates of pay, hours of work, and conditions
of employment of all employees of members of the Association. This agree-
ment also contained the following:
When requested to do so, the union shall make every effort to furnish
a sufficient number of duly qualified workmen to meet the necessary re-
quirements of the employer. The employer may secure from other sources
,such workmen as may be desired, it being understood that such workmen
secured' from other sources shall be eligible and shall immediately comply
with the requirements of membership of the union and thus become parties
to this agreement.
On May 15, 1950, Neal had a meeting with all of the organizers of United
and District 50, at which he inaugurated a campaign to organize the timber
workers.
4 N. L. R. B. v. J. L. Hudson Co., 135 F. 2d 380 (C. A. 6) ; N. L. R. B. v. Local 74,.
United Brotherhood of Carpenters, 181 F. 2d 126 (C. A. 6) ; United Carpenters v. Sperry,
170 F. 2d 863 (C. A. 10), where the court said, "In the exertion of its constitutional
authority to protect interstate commerce, Congress may regulate not only commerce
itself, but matters which affect, interrupt, or stifle interstate commerce. In other words;
Congress may regulate not merely transactions or goods in interstate commerce, but
activities which in isolation might be deemed to be local and yet in the course of the
interlacing of business across state lines affect adversely interstate commerce."
5 These findings are based on G. C. Exhibits 2 and 3, and uncontradicted and credited
testimony of Neal , H. A. Jones, and James L. Perdue.
UNITED CONSTRUCTION WORKERS, ETC. 1741
Carbon's operations are located about 17 miles up Cabin Creek, and about
16 miles from Cabin Creek Junction, herein mentioned, and in the southeast
end of Kanawha County, West Virginia. It operates 5 mines, designated as
numbers 3, 5, 9, 9-X, and 12, all of which are adjacent to each other. Carbon
purchases mine timbers for use in mines 3, 5, and 9-X from between 12 to 15
sawmill operators in 4 different counties adjoining its properties, the average
distance of such mills from the mines being about 55 miles.
There are three roads entering Carbon's property, two being strictly moun-
tain roads, unpaved, and very poorly maintained. The other road, known as
Cabin Creek Junction road, and the scene of some of the activities of the
Respondents, was paved and was the road commonly used by all the trucks
entering Carbon's property.
B. Activities at Cabin Creek Junction e
Picket lines to stop the hauling of timber to Carbon were established at
Cabin Creek Junction during the month of May 1950.7 These picket lines were
maintained through the joint efforts of the Respondents and the Association.
Wright, Saul, and Huffman, while driving their own trucks hauling timber
to Carbon, were stopped by these pickets. One of the pickets made the following
statements to Wright: that they were going to stop scab timber coming in;
that they would not permit the hauling of timber to Carbon unless the driver
belonged to the Union and had a union sticker8 on the windshield of the
truck ; and also that he would have to go to Charleston and join the Union
and the Association.
When Saul was stopped, one of the pickets asked Saul where are your stickers,
and told Saul he would have to join the Association."
A picket, who identified himself as working under District 50, asked Huffman
where are your stickers, and told Huffman that the Association was working
with District 50. This picket also told Huffman to go to Montgomery that
night and join the Association, and that they were setting up picket lines to
stop timber going to Carbon until they could work out an arrangement with
the coal operators.
Wright .and Saul could not identify any of the pickets, but Huffman testified
that one of them was named Campbell."
Clement Burdett and Dewey Burdett, truck drivers for Lynch and Foreman,
respectively, while attempting to deliver timber to Carbon, were stopped by
the pickets at Cabin Creek Junction. A picket told Clement that there was
no use going through because #12 mine was closed by a strike. When Clement
told the picket that the truck belonged -to Lynch, the picket directed Clement
to tell Lynch to get in touch with Blackshire. A picket told Dewey that it
was no use to go to Carbon because the pickets up there would not permit him
to unload his truck. The Burdetts were unable to identify any of the pickets
who-stopped them.
The evidence establishes that both Johnson and Blackshire were at Cabin
Creek Junction on May 17 and 18.11
6 These facts are established by uncontradieted credited testimony of, Wright, Lynch,
Foreman, Saul, Huffman, Clement Burdett, Dewey Burdett, and James L. Perdue.
7 There was evidence that the pickets were at Cabin Creek Junction for some time prior
to May 1950. The evidence, however, did not disclose when they were first established.
bow long they were maintained, and the parties responsible therefor.
8 The Association and United both issued to their members identification stickers to be
placed on the windshields of the trucks.
0 At this time Saul was a member of District 50.
10 Campbell was identified by other witnesses as an officer of the Association.
11 George W. Bryant, truck driver for Huffman, testified that on May 18 he saw piles
of timber on the sides of Cabin Creek Junction road and it looked like the timber had
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Activities of Blackshire and Neal on behalf of Association"
Shortly after the execution of the contract with the Association on April 17,
1950, Blackshire and Neal became active in coercing the Timbermen to join the
Association.
Blackshire called on Lynch at his mill to discuss the organization of his
workers. When Lynch refused to discuss the matter, Blackshire gave Lynch
his home address, and told him he could see him (Blackshire) there when he
wanted to. After several of his trucks had been stopped at Cabin Creek Junction,
and one of the drivers told Lynch that a picket said for Lynch to see Black-
shire, Lynch called at Blackshire's house. Blackshire told Lynch that before he
would be permitted to haul timber to Carbon, he would have to join United and
also the Association, and that his employees would have to join United.
While Foreman was delivering timber to Carbon, Blackshire asked him where
are your stickers, and then told Foreman he must join the Association and
United.
Blackshire called on Huffman at the latter's mill, and told Huffman that he
would not be permitted to deliver timber to Carbon unless he joined United and
the Association; that they had it pretty well organized and were backed by
United Mine Workers.
After his trucks were stopped, Lynch called on 'Neal at Charleston, and Neal
told Lynch that before he would be permitted to haul timber to Carbon, lie
would have to have association stickers, as well as union stickers, on his trucks.
Wright went to Charleston and joined United, and while he was there Neal
told him to go to Montgomery and join the Association.
D. Pickctintl at Carbon and strike at #1.. vinu
Early on the morning of May 18, 1950, Johnson, Blackshire, and Brown met
18 or 20 of Perdue's striking employees at Cabin Creek Junction. Blackshire
distributed picket signs to some of Perdue's men, which read "Timber operators
supplying this mine unfair to organized labor. United Construction Workers
affiliated with United Mine Workers."' Blackshire then told the pickets to go
to the mines and talk to the miners and endeavor to get their support and help,
and to induce the miners to quit using scab timber. The group then 'left Cabin
Creek Junction in 4 cars, 3 of them driven by Johnson, Blackshire, and Brown,
and the driver of the fourth car not being disclosed.
Johnson and the pickets in his car drove to #3 mine where they stopped
the delivery of timber from one truck near the tipple about 6: 45 a. m., and
then went to the hoist where the miners reported for work and set up a 'picket
line.
Blackshire and the pickets with him first went to another mine, not material
here, and from there went to #9 mine at Carbon later in the morning.
Brown and the other car carrying the remaining pickets drove to' #9 and
#12 mines and set up picket lines in front of #9 lamphouse and #12 hoist,
the two points where the employees reported for work.
just been thrown off there . As Bryant was not questioned as to whether this was mine
timber , whether it was new or old, and whether it was at or near Cabin Creek Junction,
it was not properly connected up with any activities of the Respondents , and must be
rejected as bearing upon the issues in this case.
12 These findings are based on credited testimony of Lynch, Foreman , Huffman, and
Wright. Blackshire and Neal denied making the statements attributed to them, but
their denials are not convincing and are not credited.
12 These signs were carried by some of the men on all of the picket lines.
UNITED CONSTRUCTION WORKERS, ETC. 1743
The day shift at Carbon begins at 7 a. m. and the picket lines were established
prior to this time. About 10 a. m. the pickets left Carbon, and did not return
until just prior to 3 p. in. when the afternoon, shift was due to report."
George W. Bryant, driver for Huffman, testified credibly that about 6: 30
a. m. on May 18, he was waiting near the tipple at #3 mine to unload his
timber, and Johnson and several other men refused to permit him to unload the
timber because he did not have stickers on his truck. He saw Johnson and the
men leave the place where timber is unloaded and cross the tracks between the
supply house and the tipple. As they left, Johnson said they were going over
to #3 mine to shut it down, that they were not going to let the mine run on
scab timber.
Don R. McGuire, surveyor for Carbon, testified credibly that about 6: 45 a. m.
on May 18 he saw Johnson and about five men, one of them carrying a picket
sign, picketing at the hoist landing at #3 mine where the employees reported
for work.
Shortly before 7 a. m. on May 18, the chairman of the mine committee at
#12 mine advised H. T. Holley, general mine foreman of this mine, that the
miners were not going to work because of the pickets who had asked them not
to work. These miners on the day shift at #12 mine went on strike and did
not work on May 1811
About 7: 10 a. in., on May 18, one of the pickets at #9 lamphouse asked the
superintendent of #9 mine where is the mine committee. The superintendent
told the picket the men were at work, and the picket then ordered the super-
intendent to get them. When the superintendent refused, the picket left saying
he would report to his boss. About 10 minutes later the picket returned ac-
companied by another picket and talked to some of the employees. Arthur
James, chairman of the mine committee at #0 mine, came up at this time and
ordered the pickets to leave the hill telling them that the miners were not going
to quit work. While James was talking to the pickets Johnson came up and
James told him if he had any grievances to take them up with the management
and not to interfere with the operations of the mine. Johnson then left and
went over and talked with H. A. Jones, general superintendent for Carbon 16
H. A. Jones, general superintendent of Carbon, testified credibly that he was
at #9 cleaning plant and saw about 40 men milling around, and.that Johnson
walked up to him and said that he represented District 50, that he had been
trying for about a year to keep scab timber from coming to Carbon, and wanted
to Know if he could make a deal. Jones told him that he did not think they
were going at it in the right way by picketing and stopping the mines, and
that he did not believe in making a deal under pressure. Johnson replied that
they might give Carbon time to think it over, but they expected to picket the
mines to keep Carbon from using scab timber. Jones further testified credibly
that Johnson returned the next day, accompanied by Blackshire, and talked about
working out a deal. Jones asked Johnson what kind of a deal he would make and
suggested that Johnson write him a letter so he could give it consideration.
Johnson replied that he was afraid if he wrote a letter Jones would turn it over
to the Board.
14 These findings are based on credited testimony of Johnson, Blackshire, Delbert Gillen-
waters, Floyd Starr, Clifford Mitchell, and several of Carbon's employees.
15 These findings are based on credited testimony of H. T. Holley, and were not
contradicted by Respondents.
11 William J. Bottomlee and Arthur James testified credibly to the above findings, and
Respondents did not deny them.
17 Blackshlre was on the witness stand but was not questioned by Respondents ' counsel
about this conference.
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. C. Halstead , timber foreman at #9 mine, testified credibly that he talked
with Johnson on the morning of May 18 at #9 mine, and Johnson said to him
-that #12 mine was striking and he, Johnson , was going to shut #9 mine down,
and was going to stop scab timber from coming in.
Johnson admitted having a talk with Jones , but denied the material parts
.of Jones' testimony herein set forth and also denied the statements attributed
to him by Halstead . Johnson was very evasive and not convincing , and his
.denials of the testimony given by Jones and Halstead are not credited.
On the afternoon of May 18 shortly before -3 o'clock, when the late shifts
reported for work, the pickets reappeared at #9 and #12 mines. The miners
ignored the picket lines and went to work, and shortly thereafter the pickets
left.
Conclusion
Respondents contend that General Counsel has failed to prove that the acts
.of restraint and coercion exercised on the employees of Carbon were committed
by agents of the Respondent Unions. United and District 50 admitted that
Neal, Blackshire , Johnson, and Brown were their authorized agents. Respond-
ents argue, however , that there is no proof that any of these agents were per-
sonally present or participated in the picketing 'of the mines at Carbon, and
cite that the evidence does not show that any of these agents were present
At #12 mine on the morning of May 18 at the time of the strike. It is clear
from the evidence , however , that the pickets at #9 and #12 mines were the
men Blackshire sent there and that they were carrying out Blackshire's orders
to picket the mines and talk to the miners . It was not necessary to show that
Blackshire was acually present. I find no merit in Respondents ' contention
that Johnson and Blackshire did not intend to bring about a strike or interfere
-with the work of the miners. Blackshire might have foreseen that in all 'proba-
hility if he placed a picket line around the place where the miners reported
for work , the union miners would refuse to cross it. I find that Respondents
Are responsible for the action of the pickets in carrying out Blackshire's orders,
and for the consequences of such acts.
The evidence established and I find that Johnson was present and partici-
pated in the 'picketing at #3 and #9 mines . Section 8 (b) (4) .of the. Act
proscribes inducing and encouraging the employees of any employer , to engage
in a strike or a concerted refusal, etc . It is the inducement and encourage-
ment that is prohibited. There is nothing in the Act that says the inducement
or encouragement must be successful . The placing of the pickets at #3 and #9
mines for the purpose of inducing or encouraging the miners to strike or con-
certedly refuse to perform any part of their work is clearly proscribed by
-Section 8 ( b) (4) of the Act.
The evidence convinces me, and I find that on May 18, 1950 , the Respondents
-did induce and encourage the employees of Carbon Fuel Company to engage
in a strike and a concerted refusal in the course of their employment to use or
otherwise handle or work on mine timbers.
We come now to the object, or objects, Respondents were seeking to accom-
plish as a result of their activities.
At the hearing,. Respondents moved to strike the testimony of Jones with
-reference to Johnson 's statements to Jones herein related . The motion was
.denied. Respondents have renewed the motion in their brief , and have also
moved to strike Halstead 's testimoy that Johnson told him he was going to
shut #9 mine down and that he was going to stop scab timber from coming
in. Respondents cite Spokane Building and Trades Council, 89 NLRB 1168,
UNITED CONSTRUCTION WORKERS, ETC. 1745
holding that Section 8 (h) (4) (A) of the Act proscribes only inducements
addressed to employees. I find no merit in Respondents' position. This testi-
mony does not show an inducement to the employer as Respondents contend, but
rather was a threat to the employer-we will picket your mines, or we will
close your mines if you do not make a deal with us, namely, cease dealing in
the products of the Timbermen. Johnson's statement to Jones clearly estab-
lishes the object Respondents had in mind. Johnson attempted to explain "the
deal" lie had in mind, that he had heard that Jones was refusing to receive
timber from members of United. If this was a fact, Respondents produced
no evidence to support it. The evidence on the contrary indicates that Carbon
was in need of mine timbers hs their supply had been materially curtailed by
reason of the activities of the Respondents. The evidence clearly established
that it was the Respondents who were stopping the delivery of timber to Car-
bon, and there was no evidence that Jones ever refused to receive any timber
offered him. Johnson's testimony is not credited, and the evidence satisfies
me, and I find that the only "deal" Johnson had in mind was to induce Jones
to discontinue the use of scab timber delivered by the Timbermen.
The testimony of Jones and Halstead was also admissible to negative Re-
spondents' contention that Blackshire and Johnson came on the property of
Carbon for the sole purpose of interviewing truck drivers. Neal testified that
at the conference with the union organizers in his office on May 15, he directed
the organizers to contact the truck drivers at the place where they delivered
their timber rather than at the mills. Neal gave as his reason for this that:
It is easier to talk to them at the place of their destination instead
of stopping them on the road some place and talking to them, or instead
of going to the mills.
Botn Johnson and Blackshire testified that their only purpose in going to Car-
bon's property on May 18 was to interview the truck drivers.. In their brief,
Respondents have most vigorously urged that Johnson and Blackshire went
to Carbon on May 18 to interview the truck drivers and not to picket the mines.
The testimony of Neal, Johnson, and Blackshire is most unconvincing, and
is not credited because it is palpably false. If as Respondents contend, their
only interest was to organize the timber workers, the logical place to do this
was at the mills and not at the point of delivery of the timber for the reason
that there were 5 or more workers at the mills for every truck driver. Neal's
testimony that they did not want to stop the truck drivers on the road was
contrary to what actually happened, for the evidence is overwhelming that the
trucks were stopped on the road. The credited testimony shows that only 1
truck driver was interviewed at Carbon on May 18, and this was prior to the
time the picket lines were established. There were 18 or 20 of Perdue's em-
ployees who met Blackshire at the Junction on May 18 and.accompanied Black-
shire, Johnson, and Brown to Carbon's property that morning. None of these
men was produced by Respondents to testify as to why they went to Carbon.
General Counsel did produce 3 of these men in rebuttal and not one of them
testified about interviewing truck drivers, nor did they testify that Blackshire
gave them any instructions to interview truck drivers. On the contrary, Black-
shire gave them picket signs and told them to talk to the miners and get their
help, to try to get them to stop using scab timber.
If the only purpose in going to the mines on May 18 was to interview 'the
drivers, why were picket signs necessary? It is hardly probable that nonunion
truck drivers'would be affected by such signs. Why were picket lines establish-
ed at the places where the miners reported for work rather than where the
timber was delivered? Why were these lines established just before the miners
953841-52-vol. 94-111
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported for work at 7 a.m. and 3 p.m. and discontinued shortly after the miners
went to work? Respondents have given no answers to these questions. I find
no merit in Respondents' position.
The evidence convinces me, and I find that one of the objects of Respondents'
activities on Carbon's property on May 18, 1950, was to force or require Carbon
Fuel Company to cease using, handling, or otherwise dealing in the products of
another producer, viz, the mine timbers of Timbermen, and that Respondents
violated Section 8 (b) (4) (A) of the Act.
In determining if the other objects Respondents sought to accomplish by their
activities at Carbon on May 18 were to force or require Timbermen to join
United or the Association, and to recognize or bargain with United as represen-
tative of the employees of Timbermen, it is necessary to consider the conduct
of Johnson, Blackshire, and Neal at Cabin Creek Junction and at other places
prior to May 18. The evidence discloses and I find that Respondents had met
with little success prior to May 18 in stopping the flow of scab timber to Carbon.
If Respondents were to accomplish their purpose to organize the timber work-
ers, drastic action was necessary to stop the flow of this scab timber, and that
such action was taken on May 18 is clear from the evidence.
Neal denied that Respondents were interested in and cooperating with the
Association in seeking to force the Timbermen to become members of the Associa-
tion. His testimony is not credited for the reason that it is clear from all of
the evidence that Respondents were very active in coercing the Timbermen to
join the Association. The contract of April 17, 1950, between United and the
Association clearly establishes that Respondents had a definite interest in the
Association. This contract was decidedly advantageous to Respondents in their
attempt to organize the timber workers. Instead of Respondents having to
contact a large number of workers scattered over a wide area, if the operators,
the Timbermen, could be coerced into joining the Association, Respondents' work
in organizing the workers was complete. Two things were accomplished.
Upon joining the Association and becoming a party to this contract, the Timber-
men immediately recognized United and all bargaining was complete. Finally
when the Timbermen joined the Association they obtained their workmen
from United, or if the employees were secured from other sources by the
Timbermen, such employees must be "eligible and shall immediately comply
with the requirements of membership of the union."
It is clear from all of the evidence that Respondents were interested in and
were cooperating with the Association in coercing the Timbermen to join the
Association.
There was no testimony that Johnson, Blackshire, or Brown actually partic-
ipated in the picketing activities at Cabin Creek Junction, but the evidence is
clear that these three agents were present at the Junction on both of these
days. If the activities at the Junction were being made by the Association
exclusively, as Respondents urge, why did one of the pickets tell Lynch to see
Blackshire? Why did a picket tell Wright that they would not permit the
hauling of timber unless the driver belonged to the Union? Why was Wright
told by one of the pickets that he would have to join the Union and for him to go
to the Charleston office? Why was Huffman told that the Association was
working with District 50? If Respondents were not cooperating with the
Association, why were Johnson and Blackshire present so frequently at Cabin
Creek Junction?
The evidence connecting Respondents with the activities at Cabin Creek
Junction convinces me, and I find that the activities at Cabin Creek Junction
were a joint enterprise by Respondents and the Association to coerce the
UNITED CONSTRUCTION WORKERS, E-TC. 1747
employees to join United and the Timbermen to become members of the Associa-
tion.
Failing to reach the desired objectives by their activities at Cabin Creek
Junction, the Respondents then embarked upon the activities at Carbon. If
Carbon could be forced to cease using timber brought in by the Timbermen, the
latter and their employees would be forced to join the Association and United.
Respondents in their argument have attempted to separate the activities at the
Junction from those at Carbon, or failing in that urge, that the activities at
Carbon were confined to interviewing the truck drivers, and have cited Schultz
Refrigerated Service Inc., 87 NLRB 502, and Denver Building and Construction
Trades Council v. N. L. R. B., 186 F. 2d 326 (C. A. D. C.)
If there were any merit in Respondents' contention that the activities at
Cabin Creek Junction were not a part of the activities at Carbon, or that the
activities at Carbon were confined to picketing the truck drivers, the authorities
cited by Respondents would be in point. For reasons I have indicated, I find no
merit in Respondents' arguments, and it is clear from the evidence and I find
that the activities at Carbon were the climax of the activities at Cabin Creek
Junction and other unsuccessful efforts by Respondents to coerce the em-
ployers, Timbermen, to join United and the Association, and the employees
of Timbermen to join United.
On all of the evidence, I find that the activities of Respondents at Carbon
on May 18 had as their objectives, in addition to forcing Carbon to cease doing
business with the Timbermen, to force or require Timbermen, as employers and
as self-employed persons, to join United and the Association, and the further ob-
ject to force and require Timbermen to recognize and bargain with United as the
representative of the employees of Timberinen when United had not been certified
as the representative of such employees under the provisions of Section 9 of
the Act.18 I find that such activities by Respondents were in violation of Sec-
tion 8 (b) (4) (A) and (B) of the Act.
The complaint charges that the activities at Cabin Creek Junction are a vio-
lation of Section 8 (b) (4) (B) of the Act. It is clear from the allegation in
the complaint that this was an error, and that General Counsel intended to
allege that such activities are a violation of Section 8 (b) (4) (A) of the Act.
General Counsel's motion at the close of the hearing to amend the complaint to
cover obvious errors is sufficient, in my opinion, to cover this amendment, and
I will consider the complaint as so amended.'
The only testimony offered by General Counsel in support of this charge is
that of Clement Burdett and Dewey Burdett. Wright, Saul, and Huffman, who
testified as to matters at Cabin Creek Junction were employers, and not em-
ployees, and it is clear that any inducement or encouragement to them would
fail to establish the first requirement of Section 8 (b) (4), i. e., "to induce or
encourage the employees of any employer." The testimony of the two Burdetts
that a picket told them "there was no use going through because #12 mine
was closed by a strike" and "it was no use to go to Carbon because the pickets.
up there would not permit him to unload his truck" is not sufficient to sustain
the burden of proof that they were induced or encouraged to engage in a strike,.
or concertedly refuse in the course of their employment to transport goods. I
find, therefore, that General Counsel has failed to prove that the activities at
Cabin Creek Junction violated Section 8 (b) (4) (A) of the Act.
3s Respondents stipulated at the hearing that neither United nor District 50 has been.
certified as the representative of the Timbermen ' s employees under the provisions of
Section 9 of the Act.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The activities of the Respondents in coercing the Timbermen to join the
Association as hereinabove related were a clear restraint and coercion on the
employees of Timbermen in the exercise of the rights guaranteed by Section 7
of the Act. If Respondents were successful in their efforts to coerce the Tim-
bermen to join the Association, the employees of Timbermen would be coin-
pelled to join United to retain their jobs, and would thus be deprived of their
right to join the labor organization of their own choosing, or refrain from
joining any labor organization. The coercion exercised upon the Timbermen,
who were self-employed truck drivers, to join United likewise deprived the
Timbermen as employees of the rights guaranteed to them by Section 7. John-
son's refusal to permit George W. Bryant to continue with his work of unload-
ing the timber on his truck because Bryant did not have a sticker on his truck
indicating union membership, clearly deprived Bryant of his right under Section
7 of the Act to join, or refrain from joining, any labor organization. Based on
the above evidence, I find that the Respondents restrained and coerced the
employees of Timbermen in the exercise of the rights guaranteed by Section 7
of the Act, and in violation of Section 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LAI3OR PRACTICE UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of Carbon and the Timbermen, set forth in
Section I, above, have a close, intimate, and substantial relation to trade, traf-
fic, and commerce among the several States, and tend to lead to, and have led
to, labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondents have Violated Section 8 (b) (1) (A), 8
(b) (4) (A), and (B), it will be recommended that they cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. United Construction Workers, affiliated with United Mine Workers of
America, and District 50, United Mine Workers of America, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By inducing and encouraging employees of an employer other than C. C.
Huffman, John J. Lynch, Clyde Saul, Charles Wesley Foreman, and George T.
Wright to engage in a strike and a concerted refusal in the course of their
employment to use or handle mine timbers, or to perform services in connection
therewith, the objects thereof being to force or require an employer and self-
employed person to join a labor organization and an employer association ; to
force or require an employer to cease using or otherwise dealing in the products
of another producer, and to cease doing business with other persons; and forc-
ing or requiring another employer to recognize or bargain with a labor organiza-
tion as the representative of his employees when such labor organization has
not been certified as the representative of such employees under the provisions
of Section 9 of the Act, the Respondents have engaged in unfair labor practices
within the meaning of Section 8 (b) (4) (A) and (B) of the Act.
SAM ZALL MILLING CO. 1749
3. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondents have engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondents have not engaged in any unfair labor practices by threat-
ening, instructing, and ordering employees of Huffman, Lynch, and Saul and
other employers to engage in a strike or concerted refusal in the course of their
employment to transport or otherwise handle or work on mine posts, mine
lumber, and other materials, an object thereof being to force and require their
employers to join United or District 50 and the Association as alleged in the
complaint.
[Recommended Order omitted from publication in this volume.]
SAM ZALL, AN INDIVIDUAL DOING BUSINESS AS SAM ZALL MILLING CO.
and AMERICAN FEDERATION OF GRAIN MILLERS INTERNATIONAL
UNION, A. F. L. Case No. 20-CA-503. June 29, 1951
Decision and Order
On March B, 1951, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (5) of the Act,
and recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.'
1. The Trial Examiner found, and we agree, that the Respondent'
interfered with, restrained, and coerced his employees in the exer-
s The Respondent has excepted to the Trial Examiner's finding that he is engaged in
commerce and business activities which affect commerce, within the meaning of the Act.
The jurisdictional facts, as fully set forth in the Intermediate Report, show that during
the year 1949 the Respondent sold feeds valued in excess of $75,000 to the Vantress
Hatchery and Breeding Parms, an enterprise which shipped eggs and poultry valued
in excess of $60,000 to points outside the State of California during the same calendar
period. On the basis of these facts we find that the Respondent is engaged in commerce,
within the meaning of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction in the case. See Camp Concrete Rock Company, 94 NLRB 296, in
addition to the cases cited by the Trial Examiner.
94 NLRB No. 235.