United Mine Workers of America

National Labor Relations Board - Board Decisions

Jul 25, 1951

95 N.L.R.B. 546 (N.L.R.B. 1951)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
local studio, field, and network traffic, cues, and timings. In addition,
he directs the use of proper fill material in the case of technical
failure, insures that NBC telecast standards are observed, and acts
as production director 6 on programs, usually newscasts, telecast from
a small studio adjacent to the master control room.
The night operations supervisor' is in charge of evening program
operations. This individual works only 5 nights a week. On the
other 2 nights, the operations director working the evening shift is
in charge. Similarly, on the 2 days of the week when the program
director and program operations supervisor are not on duty, the
operations director on the day shift functions in their place. As the
operations directors regularly act as supervisors for substantial periods
of time in the course of their workweek, we find that they are super-
visors and shall exclude them from the unlt.8
We find that all nonperforming employees in the program depart-
ment of Television Station WNBW, Washington, D. C., including
staging services assistants, but excluding program manager, program
operations supervisor, night operations supervisor, operations di-
rectors, film editor, production directors, associate directors, staging
services supervisors, and other supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBERS MURDOCK and STYLES took no part in the consideration
of the above Decision and Direction of Election.
6 Employees classified as production directors are concededly supervisors
4 This is a newly created position to which a former operations director ham been pro-
moted. All parties have agreed that the position is supervi orN
8Trnnessee Coach Company, 88 NLRB 253, The Texas Company, 85 NLRB 1211
UNITED MINE WORKERS OF AMERICA, DISTRICT 31; UN1TIU) MINE
WORKERS OF AMERICA, LOCAL No. 4050; UNITED MINI', W ORKERS OF
AMERICA, LOCAL No. 4060; UNITED MINE WORKERS OF AMERICA,
LOCAL No. 4346; UNITED MINE WORKERS OF AMERICA, LOCAL No.
1379; UNITED MINE WORKERS OF AMERICA, LOCAL No. 6,593; UNI'rED
MINE WORKERS OF AMERICA, LOCAL No. 2338; UNITED MINE WORK-
ERS OF AMERICA, LOCAL No. 4047; and UNITED MINE WORKERS OF
AMERICA, LOCAL No. 4740 and L. E. CLEGIIORN
UNITED MINE WORKERS OF AMERICA, DISTRICT 31, and UNITED MINE
WORKERS OF AMERICA, LOCAL No. 8327 and B. B. SWANEY, 1NC.
Cases Nos. 6-CB-87 and 6-CB--105. July 25, 1951
95 NLRB No. 73
UNITED MINE WORKERS OF AMERICA, DISTRICT 31
Decision and Order
547
On March 5, 1951, Trial Examiner Allen MacCullen issued his In-
termediate Report in this consolidated proceeding, finding that Re-
spondents United Mine Workers of America, District 31, and its
Locals Nos. 4050, 4346, 1379, 2338, 4047, and 8327 have engaged in
and, were engaging in certain unfair labor practices in violation of
Section 8 (b) (1) (A) of the Act and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. He also
found that Respondents United Mine Workers of America, Locals
Nos. 4060, 6593, and 4740 had not engaged in unfair labor practices
alleged in the complaint to be in violation of Section 8 (b) (1) (A)
and recommended that the complaint be dismissed as to them. There-
after, the Respondents filed exceptions and a, supporting brief. The
Respondents also requested oral argument, which request is hereby
denied, because in our opinion, the record and brief adequately
present the issues and the positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.2
With the additional explication set forth below, 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,3 conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications :
1. In their brief, the Respondents renewed their joint and several
motions to dismiss the complaint on the following procedural
,"rounds, among others: (1) An alleged lack of proper service of
copies of the charges, the amended charges, and the complaint; (2)
the refusal by the Examiner to grant the Respondents' motion to
sever the Cleghorn matter from the Swaney matter; (3) the Trial
Examiner's refusal to grant a motion for a more particular bill of
particulars and to treat the limited bill which Was served upon Re-
spondents as defining the scope of litigation; and (4) the Trial Ex-
'Pursuant 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 , Reynolds,
and Styles].
2 The Respondents ' brief contains 22 record citations to comments by the Trial Examiner
which they contend illustrate a "protective attitude " toward the General Counsel's wit-
nesses . We have carefully considered the Trial Examiner's conduct during the hearing and
find that the instances of abruptness and impatience evidence neither bias nor prejudice.
We likewise find no warrant in the record for the contention that the Trial Examiner, by
suggestions , advice, and counseling of witnesses , assisted in the prosecution of the case.
See Pennwoven , Inc., 94 NLRB 175.
Although no exception was taken to the Trial Examiner ' s finding and it does not affect
our order herein , we note that the Trial Examiner erred in finding that the Board would
not assert jurisdiction over Swaney Trucking Company . a business organization which
clearly constituted an integral part of B. H . Swaney's over-all operations . See Somerset
Classics, Inc., et al ., 90 NLRB 1676 ; Metropolitan Life Insurance Company, Parklabrea
Resident Community, 93 NLRB 381 ; Paul W. Speer, Inc., 94 NLRB 317.
.)61974-52-vol. .)5---16
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer's refusal to permit cross-examination on subjects not covered
by direct examination and his refusal to permit the record to be
vouched,4 as to excluded testimony. Like the Trial Examiner, we
find no merit in any of the motions to dismiss the complaint, and all
such motions are hereby denied.
(a) As to the first ground, it is clear that the charges were not
defective because they were addressed to respondent labor organiza-
tions, rather than to officers therein,' or that service was made by the
Board rather than by the charging party. Nor was the service or the
proof of service thereof impaired by the fact that the charges were
not personally served but were delivered to unaddressed persons who
accepted service, signing return receipts as agents for the addressees.6
(b) As to the second, we find no reason to reverse our earlier de-
termination that these cases were properly consolidated, pursuant to
Section 203.33 of the Board's Rules and Regulations, Series 5 (Section
102.33, as recently amended) .7 The Trial Examiner did not consider
evidence pertinent to Case No: 6-CB-87 as applicable to Case No.
6-C.B-105 s
(c) With respect to the third ground, it seems plain that the Re-
spondents were adequately advised by the complaint as to the nature
of the violations. charged, the manner by which they had engaged in
unfair labor practices, and the approximate time and place at which
the illegal acts were committed. - Accordingly, the denial of the mo-
tion for a faller bill of particulars was not prejudicial.' Nor is this
result inconsistent with judicial holdings in relation to Rule 12 (e)
of the Federal Rules of Civil Procedure, upon which the Respondents
rely.'' In addition, the record shows that the facts and issues intro-
duced by the General Counsel were fully litigated and that at no
time during the hearing did the Respondents claim surprise or ask for
a postponement. Accordingly, we find no prejudice in the Trial
Examiner's ruling that the bill of particulars did not define the scope
of litigation."
(d) As to the fourth ground, by requiring in Section 10 (b) of the
Act that U. S. district court rules of evidence be followed in complaint
proceedings "so far as practicable," Congress clearly intended to. leave
4 See Rule 43 ( c) of the Federal Rules of Civil Procedure , which provides for the inclusion
in a record of the evidence excluded by an objection to a question propounded to a witness.
8 N. L. R . B. v. United Mine Workers of America, District 31, 190 F. 2d 251 ( C. A. 4),
enfg. 92 NLRB No. 146.
6 See The Ann Arbor Press, 85 NLRB 58, 60, enfg., 188 F. 2d 917 (C. A. 6) ; Quarles
Manufacturing Company, 83 NLRB 697.
' See Hearst Publications , Incorporated, et a^l ., 39 NLRB 1245 approved 322 U. S. 111,
at 114, fn. 4.
s On November 7, 1950, the Board denied the Respondent 's request for special permission
to appeal to the Board from the Trial Examiner ' s ruling on this matter.
Tower Hosiery Mills, Inc., 81 NLRB 658, 666, enfd. 180 F. 2d 701, cert. den. 340
U. S. 811.
10 See Hummel v. Wells Petroleum Co., 111 F. 2d 883 (C. A. 7).
11 See Premier Worsted Mills, 85 NLRB 985.
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 549
"it largely to the discretion of the Board and the examiner whether
they shall apply the rules of evidence or not." 12 We therefore find
no prejudice in the fact that the Trial Examiner followed Rule 43 (b)
of the Federal Rules of Civil Procedure by limiting cross-examination
to the subject matter of the examination-in-chief,ls although he chose
not to follow Rule 43 (c) by permitting the vouching of the record
for excluded evidence. Moreover, the excluded. evidence was, as the
Trial Examiner ruled, largely immaterial.14
2. We agree with.the Trial Examiner's findings that in Case No.
6-CB-87, District 31, and Locals Nos. 4050, 4346, 1379, 2338, and 4047
violated Section 8 (b) (1) (A) of the Act in that their identified repre-
sentatives, officers, and members directed and participated in the
activities fully described in the Intermediate Report. This conduct
followed the pattern of restraint, coercion, and intimidation found to
have been employed by Respondent District 31 in the Bitner Fuel
Company case 13 and was clearly calculated to restrain and coerce
Cleghorn's nonunion employees in their right to refrain from assisting
in the concerted activities in which the Respondents were then en-
gaged by refusing to work until the end of the United Mine Workers'
strike. For the reasons stated by the Trial Examiner, we find that
District 31 and the afore-mentioned Locals are responsible for this
conduct.
3. We also agree with the Trial Examiner's findings that in Case
No. 6-CB-105, District 31 and Local No. 8327 violated Section 8 (b)
(1) (A) of the Act by similar coercive conduct, designed to coerce
and compel employees of Swaney to assist in the concerted activities in
which they were jointly engaged by refusing to work until Swaney
recognized Local No. 8327 as the representative of the employees
of Swaney Trucking Company.16
District 31 contends that Local No. 8327 was defunct when the
unfair labor practices herein took place and that the present Local
No. 8327, having been reactivated at a different operation involving
different personnel, cannot be charged with responsibility for the acts
of former members of the defunct union. We find no merit in this
contention. Up to and including March 1950, there was a history of
collective bargaining between B. H. Swaney & Sons, Inc., and United
Mine Workers of America, District 31 and its Local 8327. In Janu-
Senator Taft in 93 Daily Cong . Rec. 6676, June 6, 1947.
13 See Jaques Power Saw Co., 85 NLRB 40.
14 E. g. evidence relating to when the title of coal sold to an out-of-State customer passed
(See Intermediate Report , p. 556 ) ; and to possible bad faith on the Swaneys ' part (See
Sunset Line and Twine Company, 79 NLRB 1487).
1s United Mine Workers of America, District 31, et at., 92 NLRB 953 , enfd. 190 F. 2d
251 (C. A. 4).
16 Cf . United Mine Workers of America, et al. ( Union Supply Company), 90 NLRB 436.
550 DECISIONS Or, NATIONAL LABOR RELATIONS BOARD
ary 1950, the individuals employed as truck drivers for B. H. Swaney
& Sons, Inc., including three officers of Local 8327, became the em-
ployees of Swaney Trucking Company, a newly organized partnership,
which was not covered by the contract. Kittle, the president of Local.
8327, called a meeting of Swaney Trucking Company employees in
March 1950 to revitalize the Local and acted as spokesman for the.
group which on April 3 requested a contract recognizing the United
Mine Workers as representative for the drivers. Shear, the record-
ing secretary of Local 8327, issued the strike call for April T. All.
officers, or former officers, of Local 8327 were active participants in
the strike and in the violent conduct which is the subject of the com-
plaint herein. And B. H. Swaney had received no communication
concerning any dissolution of Local 8327. In view of the absence
of evidence that Local 8327 was discontinued with the transfer of
the drivers, we infer and find that it existed at the time the unfair
labor practices took place: 7
. Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, United Mine
Workers of America, District 31, and Locals Nos. 4050, 4346, 1379,
2338, 4047, and 8327, their officers, representatives, agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Restraining and coercing the employees, or any of them, of
L. E. Cleghorn and B. H. Swaney, Inc., or any other employees en-
gaged in mining operations within the' geographical limits of the
jurisdiction of District 31, United Mine Workers of. America, in
the exercise of the rights guaranteed them by Section 7 of the Act,
by exerting force, or committing acts of force and violence against
said employees, or any of them, or by using or threatening to use
force or violence, or by taking or threatening to take punitive action
or economic reprisals against any of said employees, unless said em-
ployees join in the concerted activities or become members of said
District 31 and/or the said Locals, or any of them.
(b) In any manner restraining and coercing said employees or any
of them, in the exercise of their right to refrain from any or all of
the concerted activities guaranteed them by Section 7 of the Act.
17 Cf. International Union, United Mine Workers of America ; and John L . Lewis ( Jones &
Laughlin Steel Corporation ). 83 NLRB 916, footnote S. The Respondent District 31's fur-
ther contention that t he present Local 8327 cannot be charged with responsibility for the
unfair labor practices of a predecessor is likewise without merit . Even if Local 8327 be
viewed as a successor of a now defunct local , our Order will run , as usual , against Local No.
8327 , and its "successors and assigns ." See New . York Shipbuilding Corporation , et al., 89
NLRB 1446, 1454.
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 551
2. Take the following affirmative action, which the Board finds will
'effectuate the policies of the Act :
(a) Post in conspicuous places in the business offices of District 31,
United Mine Workers of America, and in the business offices of Locals
.Nos. 4050, 4346, 1379, 2338, 4047, and 8327 where notices and com-
munications to members are customarily posted, copies of the notice
attached hereto as Appendix A.,,8 Copies of the notice, to be furnished
by the Regional Director for the Sixth Region, shall, after being
signed by official representatives of District 31, United Mine Workers
•of America, and United Mine Workers of America, Locals Nos. 4050,
-4346,1379, 2338, 4047, and 8327, respectively, be posted by said Unions,
as aforesaid, and n-maintained by them for a period of sixty (60) days
thereafter. Reasonable steps shall be taken by Respondents, and each
,of them, to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Sign, as aforesaid, and mail sufficient copies of the said notice,
attached hereto as Appendix A, to the Regional Director for the
Sixth Region, for posting, the employers operating said mines and
tipples being willing, at each of the mines and tipples involved in
this proceeding in the places thereat where notices, bulletins, or
.communications to the employees of said mines and tipples are cus-
tomarily posted. Such copies of the notice shall be furnished Re-
spondents by the said Regional Director.
(c) Sign, as aforesaid, and forward to each local of District 31, of.
United Mine Workers of America, a copy of the notice attached hereto
.as Appendix A, with accompanying instructions directing and order-
ing the proper officers of the local to post and maintain same for a
period of sixty (60) consecutive days thereafter, at the office, head-
quarters, or meeting place or places of said local, in the place thereat
where notices, bulletins,, and communications to members of the local
are customarily posted; or, if the local does not have an office, head-
quarters, or regular place of meeting, or place where communications
to the members are customarily posted, that said notice be communi-
cated to the membership of the local in the manner, and by the means,
in which notices, bulletins, or communications are customarily trans-
mitted to their members. Copies of the notice for such purpose shall
be furnished Respondents by the said Regional Director.
(d) Notify the Regional Director for the Sixth Region in writing ,
within ten (10) days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent Locals 6593, 4060, and 4740
violated Section 8 (b) (1) (A) of the Act, and that Respondents
11 In the event that 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."
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 31 and Locals 4050, 4346, 1379, 2338, 4047, and 8327 violated
Section 8 (b) (1) (A) by restraining and coercing the employees of
Swaney Trucking Company, Howard T. Mitchell, and Paul Crites.
Appendix A
NOTICE
Pursuant to a Decision and Order of the National Labor Relations:
Board, and iii order to effectuate the policies of the National Labor-
Relations Act, as amended, we hereby give notice that :
We, United Mine Workers of America, District 31, and United
Mine Workers of America, Locals Nos. 4050, 4346, 1379, 2338,
.4047, and 8327 and each WILL NOT restrain and coerce the em
ployees, or any of them, working at any of the mines and
tipples operated by L. E. CLEGHORN and B. H. SWANEY, INC., or
any employees engaged in mining operations within the geograph-
ical limits of the jurisdiction of United Mine Workers of America,_
District 31, in the exercise by them of the rights guaranteed to.
them in Section 7 of the National Labor Relations Act, as
amended, by exerting force, or committing acts of force or vio-
lence against said employees, or any of them, or by using or
threatening to use force or violence, or by taking or threatening:
to take punitive action or economic reprisals, against them, or any
of them, unless said employees join in the concerted activities or
become members of said United Mine Workers of America, Dis-
trict 31, and/or United Mine Workers of America, Locals Nos..
4050, 4346, 1379, 2338, 4047, and 8327, or any of them.
FURTHER, WE WILL NOT in any manner restrain and coerce sai&
employees, or any of them, in the exercise of their right to refrain
from any or all of the concerted activities guaranteed to them
by Section 7 of the National Labor Relations Act, as amended.
UNITED MINE WORKERS OF AMERICA,
DISTRICT 31,
Union.
By ---------------------------------------
(Representative ) ( Title)
UNITED MINE WORKERS OF AMERICA,
LOCAL No. 4050,
Union.
By ---------------------------------------
(Representative ) ( Title)
UNITED MINE WORKERS OF AMERICA,
LOCAL No. 4346,
Union.
By ---------------------------------------
(Representative ) ( Title)
UNITED MINE WORKERS OF AMERICA, DISTRICT 31
UNITED MINE WORKERS OF AMERICA,
LOCAL No. 1379,
553
Union.
By ---------------------------------------
(Representative) (Title)
UNITED MINE WORKERS OF AMERICA,
LOCAL No. 2338,
Union.
By ---------------------------------------
(Representative ) ( Title)
UNITED MINE WORKERS OF AMERICA,
LOCAL No. 4047,
Union.
By --
(Representative ) ( Title)
UNITED MINE WORKERS OF AMERICA,
LOCAL No. 8327,
Union.
By ---------------------------------------
(Representative) (Title)
Dated--------------------
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
STATEMENT OF THE CASE
Upon charges duly filed by L. E. Cleghorn , hereinafter called Cleghorn, and
B. H. Swaney , Inc., hereinafter called Swaney , the General Counsel of the
National Labor Relations Board,' by the Regional Director of the . Sixth Region
(Pittsburgh , Pennsylvania ), issued a complaint dated October 13, 1950, against
United Mine Workers of America, District 31 (hereinafter called District 31),
and United Mine Workers of America , Local No. 4050 , Local No. 4050, Local No.
4346, Local No. 1379, Local No. 6593 , Local No. 2338 , Local No. 4047 , Local No.
4740, and Local No. 8327 ( hereinafter called the Locals, and District 31 and the
Locals being hereinafter collectively called Respondents ), alleging that Respond-
ents had engaged and were engaging in unfair labor practices affecting commerce
within the meaning of Sections 8 (b) (1) (A) and 2 ( 6) and ( 7) of the National
Labor Relations Act, as amended ( hereinafter called the Act), 61 Stat. 136.
Copies of the charges, amended charges , the complaint , and a notice of hearing
were duly served upon Respondents , Cleghorn, and Swaney.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondents by their various officers, agents , and representatives engaged
in mass picketing of Cleghorn 's and Swaney 's properties , use of physical force,
threats of bodily injury and force , intimidation , barring of ingress and egress
to Cleghorn 's and Swaney 's premises, damaging of Cleghorn 's and Swaney's
properties , and forcible shutdown of Cleghorn 's and Swaney's operations in order
1 The General Counsel and his representative at the hearing are referred to as the Gen-
eral Counsel. The National Labor Relations Board is herein called the Board.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to compel the employees of Cleghorn and Swaney, and, employees of Swaney
Trucking Company, Howard T. Mitchell, and Paul Crites (hereinafter called
respectively Trucking Company, Mitchell, and Crites), independent contractors
under contract with Swaney, to cease work and join in Respondent's concerted
activities, and by such conduct restrained and coerced the employees of Cleghorn,
Swaney, Trucking Company, Mitchell, and Crites in the exercise of the rights
guaranteed in-Section 7, within the. meaning of.Section 8 (b) (1) (A) of the Act.
Respondents filed a motion to dismiss the complaint alleging, among other
things, that the charges and the complaint were not duly and legally served, that
the several charges are insufficient and do not comply with the Board's Rules
and Regulations, that the complaint was based on alleged unfair labor practices
occurring more than 6 months prior to the filing and service of the charges; and
.a further motion requesting a bill of particulars, which motions were referred
to Trial Examiner J. J. Fitzpatrick, who denied the motion to dismiss the com-
plaint and ordered the General Counsel to furnish a bill of particulars in
certain respects. This was clone. Thereafter, Respondents, reserving all rights,
.filed a joint and several answer denying every allegation of the complaint.
Pursuant to notice, a hearing was held in Clarksburg, West Virginia, from
November 21 to December 15, 1950, before the undersigned, Allen MacCullen,
the Trial Examiner duly designated by. the Chief Trial Examiner. All parties
were represented by counsel, participated in the hearing, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues. At the opening of the hearing, Re-
spondents renewed their motions to dismiss the complaint and for a more
detailed bill of particulars, which motions the undersigned denied.
During the course of the hearing, rulings were reserved upon the admissibility
of the testimony of Charles Plivelich concerning certain transactions he had
with Ken Stalnaker as an organizer for District 31 in July and August 1950, and
the admissibility of General Counsel's Exhibits 17-A, 17-B, and 24. Respondents
moved to strike the testimony of Plivelich for the reason that it related to trans
actions with Stalnaker at least 2 months after the last of the alleged unfair
labor practices with which Respondents are charged, and did not tend to prove
the agency of Stalnaker at that time. There was other testimony that Stalnaker
was an agent for District 31 in 1949 and in the early part of 1950. While the
testimony of Plivelich standing alone does not establish the agency relationship
of Stalnaker prior thereto, taken with the other testimony showing the rela-
tionship as late as April 1950, it does establish that such relationship continued
at least until July and August 1950, and may be considered in determining the
reasons for his activities in April and May 1950 on behalf of Respondents, par-`
ticularly in view of the absence of any proof offered by Respondents that Stal-
naker was not acting in the same representative capacity during April and May
1950. The motion. to strike Plivelich's testimony is denied.
General Counsel offered as Exhibits 17-A and 17-B certificates of the Deputy
Commissioner Department of Motor Vehicles of the State of West Virginia certi-
fying to the ownership of certain automobiles as shown by State registration tags
for the year 1949-50. Respondents objected to the receipt of these exhibits and
reserved the right to present argument in support of their objections in brief
to be submitted after the close of the hearing. As Respondents have not renewed
the objections to the receipt of these exhibits in their brief and have presented
no argument in support thereof, it is assumed they have waived their objections
and the exhibits are received as General Counsel's Exhibits 17-A and 17-B.
General Counsel also offered as General Counsel's Exhibit 24 a certified copy
of an answer filed by certain individuals as members of Local No. 8327, United
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 555
Mine Workers of America, in the Circuit Court of Harrison County, West Vir-
ginia, as an admission that the said Local was a labor organization at that time.
Respondents objected on the grounds that the exhibit was not properly authenti-
cated , and that it was irrelevant and immaterial . The objections are overruled
and the exhibit is received as General Counsel's Exhibit 24.
At the conclusion of the hearing Respondents renewed their motion to dismiss
the complaint for the reasons hereinabove set forth, and for the additional
reason that General Counsel failed to sustain by proper legal evidence the alle -
gations of the complaint and for other reasons not necessary to relate here.
Respondents ' motion to dismiss the complaint as to Locals Nos. 4060, 4740, and
6593 is granted for the reason that General Counsel offered no legal evidence to
sustain the allegations of the complaint as to these three locals. Respondents'
motion to dismiss the complaint and strike the evidence relating to all alleged
unfair labor practices occurring more than 6 months prior to the filing and
service of the charges and amended charges, and Respondents ' motion to dismiss
the complaint as it relates to coercing and interfering with the employees of
Mitchell and Crites , are disposed of by the findings and conclusions hereinafter
made. In all other respects Respondents ' motion is denied. General Counsel's
unopposed motion to conform the pleadings to the proof with respect to minor
variances was granted . General Counsel argued orally , and thereafter , pursu-
ant to leave granted to all parties , the General Counsel and Respondents filed
briefs with the undersigned which have been considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. COMMERCE
A. The business of Cleghorn
During the year from September 1, 1949, to August 30, 1950, L. E . Cleghorn,
as an individual , has been engaged in coal mining in Harrison , Upshur, and
Lewis Counties , in the State of West Virginia , operating 8 strip mines and 4
coal tipples ; he owns and operates 16 coal trucks , and in addition at times uses
60 or 70 trucks operated under contract with independent contractors ; in hauling
coal from his strip mine operations to the tipples where the coal is cleaned and
loaded into railroad cars for shipment , the coal being sold to brokers and shipped
directly to customers . During the period aforesaid , he has purchased over
$500,000 worth of materials and about $175,000 worth of new equipment. He
purchases 80 percent of his materials and equipment locally and 20 percent is
purchased out of the State of West Virginia, and shipped directly to him. Most
of the materials and equipment purchased by him locally is manufactured out of
the State of West Virginia and shipped to local dealers in West Virginia. Dur-
ing the time aforesaid he has mined and shipped over $2,000,000 of coal, 95 per-
cent of which was shipped directly to out-of-State customers.
During the period from October 1, 1949, to September 30, 1950, B. H. Swaney,
Inc., was a West Virginia corporation , engaged in strip mining operations in the
County of Harrison, State of West Virginia, and during the period aforesaid it
purchased materials and equipment locally in West Virginia* to the amount of
$254,706.31 and $22,486.14 out of the State of West Virginia and shipped to it
in West Virginia ; during the said period it mined and shipped $654,195.43 worth
of coal to customers all located out of the State of West Virginia.
Respondents contended that Cleghorn and Swaney were. not engaged in inter-
state commerce , primarily because of a contractual arrangement whereby Cleg-
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
horn and Swaney sold their coal to a brokerage company, which in turn sold
this coal to the various out-of-State customers. By cross-examining General
Counsel's witnesses, Respondents sought to establish when title to the coal
passed . General Counsel objected to the questions as ilnmaterial and irrelevant
and the objection was sustained. The determination of this question was not
material. As the Supreme Court said in N. L. R. B. v. Fainblatt, 306 U. S. 601
(1939), "It was not any the less interstate commerce because the transportation
did not begin or end with the transfer of title of the merchandise transported." 2
I find that Cleghorn and Swaney were engaged in commerce within the meaning
of the Act.
B. The businesses of Trucking Company, Mitchell, and Crites
Swaney Trucking Company was a partnership engaged in operating a fleet of
trucks hauling coal for Swaney and others in the State of West Virginia. During
the time material to this hearing, the total amount of services rendered by the
Trucking Company amounted to $25,272.74, all of which was for local hauling.
Howard T. Mitchell was a contract carrier operating two trucks engaged in
hauling coal in the State of West Virginia for Swaney and others. His total
business for the period from October 1, 1949, to September 30, 1950, amounted to
$7,500.
Paul Crites owns and operates three trucks engaged in hauling coal in the
State of West Virginia for Swaney and others. During the year from October
1949 to October 1950, his total business amounted to $9,000.
Following the policy of the Board that it would not effectuate the purposes
of the Act to assert jurisdiction over local enterprises which furnish goods or
services valued at less than $50,000 a year to employers who are engaged in
interstate commerce, I shall recommend that the complaint be dismissed insofar
as it alleges that the Respondents restrained and coerced the employees of
Trucking Company, Mitchell, and Crites .3
II. THE ORGANIZATIONS INVOLVED
General Counsel offered no proof that Local No. 6593 and Local No. 4060 were
labor organizations, and I shall recommend that the complaint be dismissed as
to these two locals. I find that all of the other Respondents are labor organiza-
tions within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The events pertinent to the issues in this hearing involved two separate and
distinct courses of activities by District 31 and the various Locals and will be
treated separately in this Report. One involved the operations of Cleghorn at
times when the members of United Mine Workers were on a 3-day week and
during the period of their total strike, and sought to restrain Cleghorn's em-
ployees from working during this period; and the other involved the operations
of Swaney and affiliated companies following the settlement of the total strike
of the members of United Mine Workers, and sought to organize the employees
of Swaney and its Sffiliated companies.
Cleghorn's employees had never been organized and he always operated inde-
pendently of any contractual relations with Respondents, or any of them. The
z See also Bitner Fuel Company, 92 NLRB 953.
8 Hollow Tree Lumber Company, 91 NLRB 635; Bitner Fuel Company, supra.
• UNITED MINE WORKERS OF AMERICA, DISTRICT 31 557
,Events alleged as unfair labor practices occurred on September 19, October 22,
and December 1, 1949, and January 17 and 30, and February 1, 8, and 10, 1950, and
bad as their object the closing of Cleghorn's operations during the period the
United Mine Workers were striking, and thus raised the issue whether such
-activities restrained and coerced Cleghorn's employees in the exercise of rights
.guaranteed by Section 7 of the Act in violation of Section 8 (b) (1) (A) thereof.
The situation involving Swaney's operations was somewhat more complicated.
In 1949, Swaney & Sons, Inc., a company affiliated with Swaney, was operating
,certain mining properties in West Virginia. Its employees were organized as
Local No. 8327, and Swaney & Sons, Inc., was under contract with District 31. In
-early 1950, Swaney & Sons, Inc., ceased active operations, and its employees
were offered positions with other Swaney companies. Several of its truck drivers
applied to the Swaney Trucking Company, another affiliate of Swaney, for posi-
tions and were employed by that company early in 1950. At the time these truck
drivers transferred to the Trucking Company they were members of Local No.
8327.
The record discloses no union activity by these truck drivers during the strike
.of the mine workers in the early part of 1950, but about the time of the signing
of the National Bituminous Coal Wage Agreement between United Mine Workers
..of America and various operators and coal associations, they became active and
called a meeting of Local 8327 sometime in March 1950 and sought to induce
other employees of the Trucking Company to become members of their union.
,On April 3, 1950, Paul Keener and Howard Kittle, two of the truck drivers,
purporting to represent the Trucking Company employees, had a meeting with
P. S. Hill and other officers of the Trucking Company. Keener and Kittle told
Bill the employees wanted United Mine Workers of America to represent them,
.and Hill informed Keener and Kittle he would be glad to meet with the union
representatives if they could show that they represented the majority of the
,employees, and Keener informed Hill that they would have a representative of
United Mine Workers contact Hill. This meeting with representatives of the
United Mine Workers on behalf of the Trucking Company employees was never
held.
About this same time, representatives of District 31 sought to induce Swaney
to recognize that organization as the representative of its employees. In March
-1950, Swaney received two letters, one dated March 7 and the other dated March
23, purporting to be signed by C. J. Urbaniak, president of District 31, advising
.Swaney of the signing of the National Bituminous Coal Wage Agreement, and
that as an independent operator Swaney would be required to sign a separate
,contract, and directing Swaney to call at the Fairmont, West Virginia, office of
District 31 and sign the 1950 agreement. Shortly after the receipt of these two
letters, B. H. Swaney , president of Swaney, met Ken Stalnaker, an organizer
and representative of District 31, on the. highway, and Stalnaker suggested to
:Swaney a meeting with representatives of District 31 for the purpose of signing
.a contract with that District. A meeting was arranged , and on March 30, 1950,
Harry Bennett, secretary-treasurer of District 31, and Ken Stalnaker called at
Swaney's Charleston office and a meeting was held with B. H. Swaney and P. S.
Hill, representing Swaney. Bennett and Stalnaker requested Swaney to sign
a contract with. District 31 as the representative of the employees of Swaney and
:Swaney & Sons, Inc. No mention was made by either Bennett or Stalnaker of
the Trucking Company. Hill informed Bennett and Stalnaker that Swaney &
Sons, Inc., was discontinuing its operations, and that he, Hill, had serious doubts
if District 31 represented the employees of Swaney, and asked Bennett and
Stalnaker to produce some evidence of the fact that District 31 represented the
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
employees, and suggested a Board election. Bennett informed Hill that in such
an election District 31 could not appear on the ballot. The meeting then ad-
journed until the following week, April 6, 1950.
On April 6, 1950, Bennett and Stalnaker again met with Hill. Hill asked
Bennett and Stalnaker whom they, represented, and'Bennett said that their only
purpose in coming to the meeting was to get Swaney to sign a contract with
District 31, and that if Swaney did not sign' the contract right then, its em-
ployees would not work the next morning. Again no mention was made by
either Bennett or Stalnaker that they were seeking a contract for the Trucking
Company employees.
Following this meeting the truck drivers of the Trucking Company, who were
members of Local 8327, refused.to work on the morning of April 7, 1950; unless
the Trucking Company signed a contract with United Mine Workers of America.
All of the remaining employees of the Trucking Company who were not mem-
bers of Local 8327, and all of Swaney's employees continued to work. Begin-
ning on the morning of April 7, 1950, and continuing for some time thereafter
the striking truck drivers and representatives and members of District 31 set up
picket lines adjacent to Swaney's tipple and on the highway leading from the
tipple to the strip mine operated by Swaney and engaged in activities which
General Counsel contends violated Section 8 (a) (1) (A) of the Act.
Respondents called no witnesses and 'offered no evidence. By vigorous. and
lengthy cross-examination of General Counsel's witnesses, Respondents sought
to confuse the witnesses as to dates and events occurring on particular days in
an apparent attempt to secure contradictions from the witness of testimony
given by other witnesses. On the whole this met with little . success, and the
testimony of General Counsel's witnesses stands uncontroverted. Officers of the
Locals failed to appear and produce records as called for by subpoenas duly
served upon them by General Counsel.
In their brief, Respondents have made no argument on the merits, but rely-
principally upon technical matters, all of which are disposed of herein.
13. Restraint and coercion of Cleghorn's employees
Cleghorn tipple, the scene of much of the activities of Respondents, is located
on a narrow strip of land immediately adjacent to, and running parallel with
and on the left of a public highway extending from Lost Creek to Clarksburg,
West Virginia. There is a private road on the property extending along the
entire operation and parallel with the public highway. Trucks enter this private
road at the point nearest Lost Creek and pass a gas pump first, then the scales
and scale house and office, where the trucks are weighed. The trucks then drive
up a ramp and dump their coal at the top of the ramp into a bin, and descend
the other side of the ramp back onto the private road, and leave from the other
end of the property onto the public highway. The coal dumped by the trucks
into the bin is conveyed to the top of the tipple where it is crushed and cleaned,,
and is then dumped into railroad coal cars on a side track running under the
tipple and 10 or 12 feet below the level of the public highway and the surround-
ing property. The coal is hauled over public highways from what is known as.
the Daugherty strip mine about 41/2 to 5 miles from the tipple. There are
usually about 14 employees working at the tipple.
.1. September 19, 1949
On September 19, 1949, operations started at the tipple between 6: 30 and 7
o'clock in the morning. About 10: 30 o'clock that morning about 30 to 40 auto-
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 559
mobiles drove up to the property on the public highway and stopped opposite the
property blocking entrances thereto from the highway. About 125 men' got out
of these cars and came on to the tipple property cursing and threatening the em-
ployees and forcing them to discontinue their work. The pickets forced several
of the truck drivers then waiting to have their coal weighed to dump the coal
from their trucks at or near the scales and on both sides of the ramp completely
blocking the scales and both sides of the ramp. Some of the pickets said they
were United Mine Workers, and told the employees to "shut down until the
strike is over" and "why don't you quit and be with us and we will get this
thing settled." Tony Sirianni and Patsy Sirianni (also named in the transcript
as Cyrianni) and Lee Allatwat, members of Locals Nos. 1379 and 4050, were iden-
tified as among the pickets. As a result of the activities of the pickets, Cleghorn
was compelled to suspend further operations."
2. October 22, 1949
On the morning of October 22, 1949, Cleghorn again attempted to resume
operations at his tipple and about 3 or 4 hours after operations had started a
calvacade of automobiles, estimated by the employees at from 30 to 75, drove up
on the public highway and parked opposite the tipple completely blocking en-
trances to the tipple property . Between 100 and 200 pickets left the cars and
stood on the edge of the property shouting profane names at the. employees and
forcing the drivers of 4 or 5 trucks to dump their coal on the private road leading
to the scales, and between the scales and the ramp blocking the entrance to the
property. Ken Stalnaker, organizer for District 31, was in the automobile lead-
ing the pickets , and after he left his automobile he had the following . conversa -
tion with Cleghorn within hearing of the employees :
STALNAKER. I see you loaded some coal this morning.
CLEGHORN . We did.
STALNAKER. I want you to shut down.
CLEOHORN. Why?
STALNAKER. There is a strike on and we want you to shut down. We
want everybody to shut down until this strike is over. If you don ' t shut,
down , these boys are liable to get pretty rough with you.
On cross -examination of Mrs. Starcher by Respondents' attorney concerning
the conversation between Stalnaker and Cleghorn, the-following additional con-
versation between the two was developed :
Q. And what did Mr. Cleghorn say then if you remember?
A: Well, he said that he did not feel that the pickets had a right to shut
him down because there were other non-union mines working in that region,
and none of the pickets had even approached some of them.
Q. Then what did Mr. Stalnaker do?
A. Well, Mr. Stalnaker said that they eventually would get around to all
of them, and after a few more words to that effect, that before the.thing was
over everyone would be shut down.
In addition to Ken Stalnaker, representing District 31, Lee Allawat, member of
Local No. 1379, Ralph Migialolo (otherwise called Frank Mike), president of
' The testimony of the different witnesses varied in their estimates of the number of
pickets from 75 to 200.
5 Although General Counsel did not seek to prove that Cleghorn 's operations were shut
down after September 19. it was clear from the testimony that each time Cleghorn sought
to resume operations, pickets would appear and force hint to suspend operations.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 4346, and Tony and Patsy Sirianni, members of Local No. 4050, were
among the pickets present and participating in the activities on October 22, 1949_
When Cleghorn finally agreed to shut down operations of the tipple, the pickets.
left the property.
3. December 1, 1949
On December 1, 1949, when Cleghorn again attempted to operate his tipple,.
between 100 and 150 pickets drove down the highway, parked their automobiles
opposite the tipple blocking the entrances, and then proceeded completely to
overrun the property, throwing rocks at and cursing the employees and chasing:
them from the property. One of the employees was struck on the leg by a rock
and was lame for several days thereafter. Mrs. Starcher, a clerk employed in the
scale house, attempted to record the license numbers of some of the pickets'
automobiles. Several of the pickets assaulted her, took her notes from her, and
threw her against the screen door leading to the scale house, breaking the door.
She was then forced into the scale house where she was imprisoned by the
pickets. Cleghorn attempted to go to her rescue and about 15 or 20 pickets
assaulted him, striking him on the head and face, knocking off his eyeglasses,
beat him to the ground, and then kicked him, and finally rolled him down an
embankment onto the railroad siding about 75 feet from where the assault began.
At the time of the hearing, about a year after the assault, there was still a small
lump on his back where he was kicked by the pickets.
Afton Hyre, one of the tipple employees, started to the assistance of Cleghorn,
and a number of pickets assaulted him and he was severely beaten and his
clothes partially torn from him. Another tipple employee was present in the
scale house and observed these brutal assaults. Ken Stalnaker, previously
identified, led the pickets this day. He was the only picket identified. Further
operation of the tipple was impossible due to the physical condition of Cleghorn
and some of his employees, and the further fact that the employees were fear-
ful for their safety if they attempted to work.
4. January 30, 1950
On January 30, 1950, while Cleghorn's tipple was operating, a small group of
pickets drove up in the vicinity of the tipple, parked their automobiles, and
walked back to the tipple but remained on the public highway and from that
point talked to the tipple employees requesting them to discontinue operations.
Joseph Cromisco (sometimes spelled Kosmicas in the transcript), a member of
Local No. 1379, was in the group of pickets. The pickets did not remain at the
tipple very long, but went back up the highway and within view of employees
working at the tipple rocked Cleghorn's coal trucks as they passed breaking the
windshield of at least one ,truck and shattering the glass in one of the doors.
They stopped some of Cleghorn's trucks, and trucks of independent contractors
employed by Cleghorn to haul coal, and dumped the coal from the trucks along
the public highway.
5. February 1, 1950
On February 1, 1950, between 100 and 150 pickets drove their automobiles to-
the vicinity of Cleghorn's tipple, parked their cars, and marched down the high-
way to the tipple property. The pickets did not come onto the property, but
remained on the public highway 6 and called the employees vile names, and
e Apparently the reason the pickets did not enter on the property at this time, and oc
January 30 , was an injunction issued by the State court. The record was not clear as to,
this fact , but there was some testimony on the subject.
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 561
among other things said to the employees, "We cannot come on your property,
but we will stay out here until you come off and then we will get you." Meline
Serdich, president of Local No. 4047, one of the leaders of the pickets, asked for
permission to come onto the property and talk to Cleghorn. Cleghorn.gave him
permission, and in the presence of some of the employees Serdich told Cleghorn,
"We are fighting for a full-day week. They are tired of working three days a
week and couldn't make a living out of it. If you go along with us, and shut
down, the thing will be over that much quicker and we will get a full week"
Cleghorn then told Serdich, "I hate to shut down but apparently we have to shut
down." Cleghorn testified that this was because the majority of the employees
had left the tipple upon the approach of the pickets, that after the violent as-
saults on December 1, 1949, his tipple employees "just flew like a bunch of
chickens, most of them, whenever a group came back." Cleghorn then agreed
with Serdich that he would shut down the tipple if the pickets would not molest
8 or 10 loaded trucks then on the road and would permit these trucks to come in
and unload at the tipple. In addition to Serdich, the following were among the
pickets at the tipple this day : Meline Davich, Herbert Warnick, James Sabintino,
Edward Jarvis, Louis Summers, members of Local No. 4047; Tony Sirianni and
Patsy Sirianni, members of Local No. 4050; Lee Allawat, mine committeeman,
and Joseph Cromisco and William Kacinec, members of Local No. 1379.'
6. February 8, 1950
On February 8, 1950, Harry Glover, a truck driver employed by Cleghorn,
was hauling coal from the "Strawberry" mine to the tipple on Hackers Creek
Road in Upshur County, West Virginia, another Cleghorn operation, when two
automobiles passed him and then stopped blocking the road. When Glover
stopped he observed a large number of automobiles occupied by pickets back
of him on the highway. Meline Serdich, mine committeeman of Local No. 4047,
was in one of the automobiles that passed Glover. Serdich got out of the auto-
mobile and came back to Glover's truck. By this time a number of pickets from
the other automobiles had gathered around Glover's truck. Serdich asked
Glover what he was doing, and Glover replied that he was hauling coal for
Cleghorn, and Serdich replied that he "did not think I was" The pickets then
cursed and threatened Glover, and forced him to dump the coal from his truck
into the ditch off the highway. One of the pickets, Louis Summers, opened the
tail gate of Glover's truck. Glover then drove his truck away, and about a
half a mile up the road saw Kenneth Patterson, another truck driver employed
by Cleghorn, who had stopped his truck along the highway.
Kenneth Patterson, who was also hauling coal for Cleghorn from the "Straw-
berry" job, had stopped his truck to tighten some bolts on a rear wheel. Some-
one passing down the highway warned him that the pickets were down the road
dumping Glover's truck, and he went to a nearby house and called the State
police. As he came out of the house, Glover drove by and told him to run. As
he started to return to his truck, the pickets drove'up and stopped. Patterson
stopped on an embankment by the side of the road near his truck, and Meline
Serdich came up and asked Patterson "whose god-damn truck is this," and
Patterson replied that it was Cleghorn's truck. Serdich then told Patterson
4 General Counsel offered testimony that on February 1, 1950 , about the same time the
pickets were at the tipple , pickets forced drivers of two of Cleghorn's trucks to dump the
coal from their trucks on a narrow private road leading from the public highway to the
Daugherty strip mine , completely blocking ingress and egress to the mine. As none of the
pickets engaged in this activity could be identified , the evidence is not sufficient to warrant
a finding that the Respondents , or any of them , were liable.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to dump the truck, and Patterson advised Serdich that the operation of the
truck was protected. by a State injunction. Serdich then told Patterson, "To
hell with the injunction, and you too, that I am going to kick the hell out of
you." Louis Summers, another of the pickets nearby, then said that he knew
where Patterson lived and that he would cripple Patterson's family and kill
Patterson. About this time the other pickets arrived and some of them started
up the embankment toward Patterson. Patterson recognized one of them as Sam
Ventura, a member of Local No. 4050, and he told Ventura that all he, Patterson,
wanted to do was to take his truck to the tipple and dump the coal, and Ventura
replied that he would kill Patterson first.
About this time the State police and the sheriff of Upshur County arrived.
The State police informed the pickets that the operation of the truck was
protected by a State court injunction, and one of the pickets then said to the
police, "To hell with the injunction," and the police then informed the pickets
they were all under arrest. With the assistance of other State police who
arrived on the scene, the pickets were all escorted to the county courthouse
and charged with "breach of the peace and violation of a circuit court injunc-
tion." After the pickets arrived at the county courthouse they identified them-
selves to the police as Meline Serdich, mine committeeman, and 47 members of
Local No. 4047; Frank Barberio, recording secretary and mine committeeman,
Joe Dottelis, mine committeeman, and 25 members of Local No. 4050; Joe
Scotchie, treasurer, and 25 members of Local No. 1379; and Edward Czeck,
financial secretary, and 7 members of Local No. 2338.
7. February 10, 1950
On the morning of February 10, 1950, about 8: 30 o'clock, a caravan of 23
automobiles parked in the vicinity of Cleghorn tipple and about 1.00 pickets got
out of the automobiles and came to the tipple property. Some of them said
they were looking for Kenneth Patterson. One of the pickets said, "I want to
find him [Patterson]. I will kill the son of a bitch." The pickets were told
that Patterson was not there, although Patterson was at the time in the scale
house. When told that Patterson was not there, one of the pickets said, "It is a
good thing he ain't here because we are looking for him and we are going to
find him." After Cleghorn's tipple was shut down on February 1, as herein
related, it had not reopened for operations and was closed on February 10.
A number of the employees were present at the time the pickets were there,
having called for their wages. The following pickets were identified : Meline
Serdich, mine committeeman of Local No. 4047; Tony and Patsy Sirianni of
Local No. 4050; and Louis Summers of Local No. 4047.
C. Restraint and coercion of S'waney's employees
During the period material to this proceeding, Swaney was operating a strip
mine located in what is known as the Brushy Fork section (herein referred to
as the Brushy Fork mine).. The mining operations were about 2,000 feet off
the public highway and connected with the latter by a private road. From the
intersection of the private road with the public highway, trucks traveled about
5 miles over the highway to the tipple then being operated by Swaney, known as
Erie No. 2 or Oral Lake tipple (herein called Oral Lake tipple). The tipple
operations were conducted on a tract of about 45 acres of land generally trian-
gular in shape, bounded on one side by the public highway, on another side by
a creek (known as Simpson's creek), and on the third side by the main line of
the Baltimore & Ohio Railroad. Extending from the main line of the railroad
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 563
there is a railroad siding on the property back of and beneath the tipple build-
Ing and running approximately parallel with the creek to the corner of the
property where the public highway crosses the creek over a bridge (the scene
of much of the picketing activities herein related and herein referred to as
the bridge). Trucks hauling coal to the tipple enter the property from the
public highway at a point approximately 100 feet from the bridge and travel
over a private road on the property approximately 800 feet to a group of
buildings, including a garage, storage house, repair shops, gas pumps, and the
scale house, all located near the center of the property. After being weighed at
the scale house, the trucks back to the tipple building located at one side,of the
property immediately adjacent to the railroad siding. After dumping the coal
in the bin at the tipple building, the trucks return to the vicinity of the scale
house and leave the property over a private road running approximately at
right angle to the entrance road and pass a tool shed and the offices ( desig-
nated on General Counsel's Exhibit No. 23 as a two-story frame dwelling)
adjacent to the intersection of the private road with the public highway.
1. April 7, 1950
On the morning of April 7, 1950, the truck drivers employed by Swaney
Trucking Company reported at the Oral Lake tipple, where their trucks were
stored overnight, but refused to go to work unless the Trucking Company would
sign a contract with United Mine Workers. Robert T. Hutchinson, superin-
tendent at the tipple, endeavored to get the truck drivers to continue their work
and negotiate their differences. Wally Shear, one of the truck drivers, told
Hutchinson they would have to get orders before they could go to work and
asked permission to call Fairmont, West Virginia, on the telephone. He men-
tioned the names of Ken Stalnaker and Harry Bennettt, two of the officials of
District 31 at Fairmont. Shear called Fairmont on the telephone and Hutchin-
son heard him say, "We have Swaney' s job shut down, and they want us to nego-
tiate and for us to continue to work. What do you want us to do?" After the
telephone conversation, Shear told Hutchinson, "They say nothing doing." After
this, the truck drivers left the tipple property, and as they were leaving one of
them said to Hutchinson, "There will be no coal hauled here to-day. We will see
to that." The drivers then set up picket lines at the bridge on the highway near
the entrance to the tipple property. Sometime during the morning Stalnaker
and Bennett arrived at the scene of the picketing and talked with the pickets for
a short while, and then left. Shortly after Stalnacker and Bennett left, the
pickets placed a log across the highway blocking the passage of the coal trucks.
Several trucks hauling coal from the mine to the tipple were blocked by this log
for some time. About an hour after the placing of the log the State police ar-
rived and required the pickets to remove the log. The pickets forced some of the
trucks hauling coal to the tipple to dump the coal by the side of the highway.
There were about 25 pickets at the bridge this day, composed largely of the
striking truck drivers. All of the activities of the pickets at the bridge were
plainly visible to Swaney's employees working at the tipple.
2. April 10, 1950
On April 10, 1950, the picketing at the bridge continued. The number of pick-
ets was increased, about 25 strangers joining with the striking truck drivers,
and the activities of the pickets became more violent. Ken Stalnaker was with
the pickets at the bridge and stopped B. H. Swaney, president of Swaney, about
6: 30 in the morning. Stalnaker requested Swaney to sign a contract covering the
961974-52-voi. 95-B7
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck drivers, and said that it would be "pretty rough " around there for Swaney
if he did not sign, and that "if the Scott's Run boys come over , it would really be
rough."
Scott Tanner, one of the tipple employees , while on his way to work was stopped
at the bridge by the pickets and some of them told Tanner, "You are not working
to-day. Go on back home ." One of the pickets handed Tanner an application
for the United Mine Workers and told Tanner, "Here , you are going to sign one of
these," Tanner turned his car around and drove away from the tipple. He met
some other employees on the way to work , and informed them of the occurrences
at the bridge. Tanner and the other employees then drove on another road back
of the tipple, parked their automobiles , and completed the journey to the tipple on
foot arriving late for work. O. Delaney , another tipple employee , was stopped by
the pickets at the bridge and was told to sign an application for the United Mine
Workers. Delaney was permitted to continue to the tipple.
The log was again placed across the road blocking the passage of the trucks
hauling coal to the tipple . At one time the pickets partially removed the log to
permit the passage of an automobile , and three or four trucks which had been
blocked sought to drive through to the tipple. As they passed through the pick-
ets rocked the trucks , breaking the windshields of two of the trucks; one of the
rocks about the size of an average fist breaking through the windshield and strik-
ing the seat next to the driver.8
3. April 11, 1950
On April 11, 1950, the striking truck drivers, and about 75 or 100 other pickets
who had joined them, patrolled the highway between the mine and the tipple,
stopping the trucks hauling coal for Swaney, forcing some of the drivers to dump
the coal along the highway, threatening the drivers, and running some of the
trucks into the ditch along the highway.
One of Swaney's employees who had driven up the highway observed the activi-
ties of the pickets at a point a short distance from the entrance to the mine prop-
erty. He testified that the pickets were scattered over the roadway for a distance
of at least a quarter of a mile, and a large group of the pickets was gathered
around one of the trucks which had just been run into the ditch. As this em-
ployee passed the pickets threw rocks at him. When this employee turned from
the highway onto the private road leading to the mine, he observed 3 trucks com-
ing down the private road from the mine. He stopped these trucks and warned
them of the activities of the pickets. About this time approximately 15 or 20
automobiles drove up to the entrance road leading to the mine property and
parked, completely blocking the entrance. A number of pickets got out of these
cars, and joined by other pickets who had walked up the highway, walked up the
private road to where the 3 trucks were parked. Two of these trucks were
owned and operated by independent contractors hauling for Swaney, and the
third was being driven by one of Swaney's employees. Some of the striking
truck drivers were with the pickets, and led by Ken Stalnaker the pickets dumped
the coal from 2 of the trucks, and started the third truck fully loaded down a
grade and over an embankment into a creek or marsh materially damaging the
truck.
g There was testimony that the pickets shouted vile and profane names at the truck
drivers as they passed. As all of these drivers were employees of independent contractors
and were not employed by Swaney, and this was out of hearing of the -Swaney employees,
it does not establish restraint and coercion of Swaney's employees.
11
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 565
4. May 23, 1950
On May 23, 1950, Howard Mitchell, one of the independent contractors hauling
coal for Swaney, was stopped on the highway near the bridge and in full view
of the employees at the tipple. This was done by the pickets in about 25 or 30
automobiles. One of the pickets opened the door of the truck and: endeavored to
drag Mitchell from the seat. Mitchell resisted and succeeded in starting his
truck and the picket jumped off the running board of the truck. Another picket,
whom Mitchell recognized as J. Dodd, one of the striking truck drivers and a
member of Local No. 8327, got on the running board of the truck and beat Mitchell
over the head and neck with his fist. Mitchell opened the door of his truck forc-
ing Dodd to get off. Mitchell then continued onto the tipple. '
5. May 26, 1950
On the morning of May 26, 1950, between 10 and 11 o'clock, Oakle Delaney,
one of Swaney's employees, was sitting in a chair in the scale house weighing
coal. Delaney is crippled in one of his legs. Two men walked into the scale
house and swore at Delaney and one of them, said, "I thought we.told you fel-
lows to shut this place down." One of the men then grabbed Delaney by the
collar and pulled him backwards off his chair and dragged him out of the scale
house where other pickets joined the first two, and they severely beat Delaney,
jumped on his crippled leg, tore his shirt and undershirt from him. Delaney
finally got away from the pickets, but could not walk and had to drag himself
away from the tipple up an embankment. The exact number of pickets was
estimated at about 60, but the testimony was that they were all over the tipple
grounds, throwing rocks, slate, and coal at the employees, cursing them, and
running them from their work. One employee in attempting to escape the
pickets fell down and a group of pickets severely beat him, knocking him to the
ground, kicking him in the stomach and also in the., mouth, knocking out 2 of
his teeth. The pickets tore the telephone from the wall and rammed the door of
a storage house, tearing the door from its hinges. A number of the striking
truck drivers, members of Local 8327, were among the pickets.
Shortly after the occurrences on May 26, 1950, Swaney had a meeting with
C. J. Urbanick, president of District 31, and an agreement was signed with Dis-
trict 31 covering the employees at Erie No. 1 tipple, another property owned by
Swaney and leased to another operator. At this meeting Urbanick agreed that'
if this contract was signed there would be no further picketing or violence
at Oral Lake tipple, and after May 26, 1950, the picketing at Oral Lake tipple
ceased.
D. Findings as to restraint and coercion
The facts as found clearly establish that the, employees of Cleghorn and
Swaney were restrained and coerced in the exercise of their rights as guaran-
teed by Section 7 of the Act. In the Cleghorn matter, the employees were
restrained and coerced in the exercise of their right to refrain from engaging
in Respondents' concerted activity, namely, the 3-day workweek or full strike ;
and in the Swaney matter, the employees were restrained and coerced in
the exercise of their right to refrain from engaging in the concerted activities
of Local No. 8327 and District 31. At the hearing Respondents by their cross-
examination sought to establish that there was no restraint and coercion of
the employees, and that Cleghorn had secured permits to carry firearms thus
provoking the vicious assaults of the pickets. Respondents, however, presented
no argument at the conclusion of the hearing, nor have they advanced any
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument in their brief on these points, possibly reaching the same conclusion
as the undersigned has reached, that there is no merit in any of these argu-
ments. It would be difficult to imagine more positive evidence of restraint and
coercion of the employees than the evidence in this case shows, and this is
particularly true with respect to Cleghorn's employees. Absent the occur-
rences of May 26, 1950, the activities of the pickets involving Swaney's em-
ployees was more indirect, involving as it did the employees of the independent
contractors. The activities on May 26, 1950, however, were sufficient standing
alone to justify my findings of restraint and coercion of the Swaney employees.
The picture presented in both of these cases was not one of peaceful and lawful
picketing, but one of mob violence, destruction of private property, and a total
disregard for the welfare and safety of other employees designed, as the evi-
dence clearly establishes, to intimidate and coerce the employees of both Cleg-
horn and Swaney. As Cleghorn so aptly testified, at the word "pickets" his
employees just ran away from the tipple, and refused to return to work fearing
for their safety.
Having found that the activities of the Respondents on the various dates
herein mentioned restrained and coerced the employees of Cleghorn and Swaney
in the exercise of the rights of such employees guaranteed in Section 7 of the
Act, there remains the question of the responsibility of the respective Respond-
ents for such acts. I have found that General Counsel offered no evidence that
Locals Nos. 6593 and 4060 were 'labor organizations. Added to this is the
further fact that no evidence was offered disclosing that any member or repre-
sentative of these two locals, and of Local No. 4740, participated in the activities
herein set forth. For this reason, I shall recommend that the, complaint be dis-
missed as to Locals Nos. 6593, 4060, and 4740.
The record shows that the original charge filed in Case No. 6-CB-87 by Cleg-
born did not name Locals Nos. 2338, 4047, and 4740 as respondents. These three
locals were first named as respondents when the first amended charge was filed
on June 19, 1950. Local No. 4740 has already been disposed of and will not be
referred to further. The first time Locals Nos. 2338 and 4047 were advised
that there was any unfair labor practice charged to them was on June 22 and
20, 1950, respectively, when the first amended .charge was served on them. The
evidence establishes clearly that members and officers of these two locals partici-
pated in the activities of the pickets on and after January 30, 1950, and my find-
ings as to violations by these two locals are based entirely on activities of and
after December 22 and 20, 1950, respectively, or 6 months prior to the service
on these locals of the first amended charge s
General Counsel relied upon evidence that automobiles registered in West
Virginia as owned by certain members of some of the locals established the
fact that such owners were present at Cleghorn's tipple on January 30, 1950, and
as identification of certain pickets who damaged the truck of Mary Pickens on
the same date, and also of certain pickets seen on the highway on February
1, 1950. The fact that the individual automobile may have been at the scene
does not establish that the owner was present, nor can it logically be con-
tended that the presence of the owner may be inferred therefrom. Such evi-
dence standing alone must be rejected as establishing that the owner was
present 10 General Counsel has relied upon Blashfield, Cyclopedia of Auto-
mobile Law and Practice, Permanent Edition, Vol. 9, Part 2, pages 258, 370
for his position that "It is a well established rule that when the identity of
a driver of an automobile at the time of an accident is an issue, that proof of
° Luzerne Hide & Tallow Company, 89 NLRB 989.
10 Bitner Fuel Company, supra.
UNITED MINE WORKERS OF AMERICA, DISTRICT 31 567
defendant's ownership of the vehicle raises- a presumption that the automobile
was in the defendant's possession." (Emphasis supplied.) This authority,
however, is not in point, as it is based upon the recognized responsibility attach-
ing to the ownership of an automobile for the results of the operation of the
automobile. There was other evidence, however, that the owners of some of
these automobiles were actually present, driving the same automobiles, and par-
ticipating in the activities of the pickets at or about the same time. In the
absence of any proof from Respondents that these parties were not present
on January 30 and February 1, 1950, it is reasonable to assume that . having
been identified on other occasions at or about the same time, and engaging in
similar activities, they continued such activities and were present on these
two dates.
The evidence clearly establishes that the activities against Cleghorn's em-
ployees were directed and participated in by representatives, officers, and mem-
bers of District 31, and Locals Nos. 4050, 4346, 1379, 2338 and 4047. Stalnaker
held a position of organizer and representative of District 31. As such, he
engaged in the adjustment and settlement of grievances and in concerted activities
in behalf of District 31 and its Locals. Meline Serdich of Local 4047 held the
elected position of mine committeeman and as such engaged in collective bargain-
ing in behalf of that Local. Edward Czeck held an elected position as an officer
of Local No. 2338. Ralph Migialolo (also known as Frank Mike) was chairman
of the mine committee of Local No. 4346 and as such engaged in collective
bargaining in behalf of that Local. Frank Barberio and Joe Dottellis held the
elected positions of president and mine committeeman, respectively, of Local No.
4050, and as such engaged in collective bargaining on behalf of that Local. Lee
Allawatt and Joe Scotchie were mine committeeman and treasurer, respectively,
of Local No. 1379, and engaged in collective bargaining on behalf of that Local.
The presence of these representatives and officers of District 31 and of the said
Locals, as well as the presence of a large number of the members of the different
Locals, clearly establishes that the pickets were acting as agents of District 31
and of the respective Locals, and that District 31 and the respective Locals are
responsible for the acts and conduct which occurred.
It is also clear from the evidence that the activities against Swaney's employees
were directed by Stalnaker and also by Harry Bennett, secretary-treasurer of
District 31, and were known to, if not directed by, C. J. Urbanick, president
of District 31, and by the officers and members of Local No. 8327, and that Dis-
trict 31 and Local No. 8327 are responsible for the acts and conduct of the
pickets.
Accordingly, I find from the uncontroverted evidence that District 31, and
Locals No. 4050, 4346, 1379, 2338, 4047, and 8327 by the conduct herein found
restrained and coerced the employees of Cleghorn and Swaney in the exercise of
the rights guaranteed in Section 7 of the Act.
I further find no substantial, reliable, or probative evidence, that Locals
Nos. 4060, 6593, and 4740, or any of -them, restrained or coerced the employees
of Cleghorn and Swaney within the meaning of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of District 31 and of Locals Nos. 4050, 4346, 1379, 2338, 4047, and
8327 set forth in Section III, above, occurring in connection with the operations
of Cleghorn and Swaney described in Section I, hereof, 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.
568. - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that District 31 and Locals Nos. 4050, 4346, 1379, 2338, 4047,
and .8327 have engaged in certain unfair labor practices, I shall recommend
that they, and each of them, cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
I have found that District 31 and Locals Nos. 4050, 4346, 1379, 2338, 4047,
and 8327 restrained and coerced the employees of Cleghorn and Swaney in the
exercise of their rights guaranteed by Section 7 of the Act, by the activities as
herein described. I shall accordingly recommend that District 31 and the said
Locals cease and desist from such, or any like or related, conduct. In view of
the nature of the conduct and the express threats of District 31 and the said
locals to resort in the future to like or similar acts of force and violence, I am
persuaded that the unfair labor practices committed evidence a purpose to
defeat the rights guaranteed by the Act and a danger of the commission in the
future of other unfair labor practices proscribed. Accordingly, in order to make
effective the interdependent guarantees of Section 7 and thus effectuate the
policies of the Act, I shall recommend that District 31 and the said locals cease
and desist from in any manner restraining or coercing the employees of Cleghorn
and Swaney in the exercise of their rights guaranteed in the Act.
General Counsel has urged a broad cease-and-desist order enjoining District
31 from restraining and coercing any employee within its territorial jurisdic-
tion, not limited to the particular employees involved herein. In Bitner Fuel
Company, supra, the Board found against General Counsel in a similar conten-
tion, saying, "We are not satisfied on the record before us that District 31's
conduct, confined so far as the evidence shows to Bitner's operations, warrants
so broad an order here." (Emphasis supplied.) In the present case, however,
the record discloses a repetition in the Cleghorn case of the conduct in the Bitner
case immediately following the occurrences in the latter case and continuing
over a period of about 6 months, and a continuation in the Swaney case of the
violent character of such conduct immediately following the Cleghorn matter.
In addition, the record discloses the threat made by Stalnaker that "eventually
they would get around to all of them (non-union mines)," and that "before the
thing was over everyone would be shut down." That this threat was not idle
is evidenced by the conduct of District 31 in the Swaney case, and convinces me
that all of this is but a part of a planned program' to apply the same techniques
to all the nonunion mines within the organizing jurisdiction of District 31. To
limit the order to the employees of the, two charging parties in this case "would
be to disregard not only the danger of future commissions of unlawful acts to
he anticipated from the course of conduct in the past, but the openly expressed
threat of the extension of those violations to other employees." " Accordingly, -
I shall recommend that the order be broadened to cover the territorial juris-
diction of District 31, but limiting the order to the restraint and coercion of
employees engaged in mining operations.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. District 31 and Locals Nos. 4050, 4346, 1379, 2338, 4047, and 8327 are labor
organizations within the meaning of Section 2 (5) of the Act.
2. Cleghorn and Swaney are engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
21 We8t Kentucky Coal Company, 92 NLRB 916.
THE OCALA STAR BANNER 569
3. By restraining and coercing the employees of Cleghorn and Swaney in the
exercise of the rights guaranteed in Section 7 of the Act, District 31 and Locals
Nos. 4050, 4346, 1379, 2338, 4047, and 8327 have engaged and are engaging 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. Locals Nos. 6593, 4060, and 4740 have not restrained or coerced the em-
ployees of Cleghorn and Swaney within the meaning of the Act, as alleged in
the complaint.
[Recommended Order omitted from publication in this volume.]
THE OCALA STAR BANNER and INTERNATIONAL PRINTING PRESSMEN &
ASSISTANTS' UNION OF NORTH AMERICA, A. F. OF L., PETITIONER.
Case No. 10-RC-1365. July 25, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Paul L. Harper, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pusuant 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 [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer publishes and prints a newspaper . The Peti-
tioner ' seeks a unit .of pressmen and stereotypers in the Employer's
pressroom. The Employer takes no issue with the unit described in
the petition. However, it contends that the unit is inappropriate
asserting that there is only one full-time nonsupervisory employee
involved. Of the three employees contemplated by the petition, the
Employer contends that two should not be included in the unit, one
because he is a supervisor, and the other because he works less than
,50 percent of his time in the pressroom, the rest of his time being
spent in other departments of the employer.
95 NLRB No. 74.