United Mine Workers of America

National Labor Relations Board - Board Decisions

Nov 13, 1951

96 N.L.R.B. 1389 (N.L.R.B. 1951)

UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1389
UNITED MINE WORKERS OF AMERICA, DISTRICT 2; CLARENCE MOSIER;
OWEN SLAGLE;AND JOSEPH FEIST and MERCURY MINING AND CON-
STRUCTION CORP,O^1ATION
UNITED MINE W&KERS OF AMERICA, DISTRICT 2; AND CLARENCE
MOSIER and JOHN ZIROS, D/B/A ZIROS COMPANY
UNITED MINE WORKERS OF AMERICA, DISTRICT 2; CLARENCE MOSIER;
AND JOHN KOSIK and R. H. GAISER
UNITED MINE WORKERS OF AMERICA, DISTRICT 2; CLARENCE MOSIER;
AND JOHN KOSIK and ALFRED MCCULLOUGH, RICHARD E. JAMIESON
AND DONALD B. COVEN, PARTNERS, D/B/A PINE HILL COAL COMPANY.
Cases Nos. 6-CB-129 (Post 6-CC-56), 6-CB-1926 (Post 6-CC-592),
6-CB-127 (Post 6-CC-53), and 6-CB-128 (Post 6-CC-55). No-
vember 13, 1951
Decision and Order
On June 4, 1951, Trial Examiner Reeves R. Hilton issued his'Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents 1 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, exceptions to the
Intermediate Report and supporting briefs were filed on behalf of the
General Counsel and the Respondents 2
The Board 3 has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and'the briefs, and the entire record in the cases, and hereby adopts
1 By administrative order dated October 4, 1951, Case No. 20-CA-383, against Mercury
Mining and Construction Corporation , has been duly severed from the consolidated pro-
ceeding herein following full compliance by the Respondent Company with the Trial Exam.
iner's recommended order.
2 The Respondents' request for oral argument is denied , as the record and the briefs, in
our opinion , adequately present the issues and the positions of the parties.
3 Pursuant to the provisions of Section 8 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and Mem-
bers Murdock and Styles].
96 NLRB No. 216.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner's findings, conclusions, and recommendations,
with the following additions and modifications : 4
1. We agree with the Trial Examiner that Rid hard H. Gaiser is
engaged in commerce within the meaning of the Act. We rely, how-
ever, upon the following commerce data established in the record to
satisfy the Board's policy standards for the assertion of jurisdiction: 5
(a) Gaiser's services as a trucking contractor in hauling coal for a
total of 13 strip mine operators had a gross value of $67,000 in the
year 1950. (b) Of this sum, $56,000, in the aggregate,6 was received
by Gaiser for trucking services rendered to 4 of these strip mine oper-
ators, each of whom in the year 1950 sold coal valued at over $85,000,
of which over 92 percent was shipped to points outside the Common-
wealth of Pennsylvania.7
2. The Respondents contend that the Board's jurisdictional stand-
ards were not met in the Pine Hill Coal Company case by reason of
the fact that the Company's annual period of business relied upon by
the Trial Examiner covered the calendar year of 1950 rather than an
annual period preceding the alleged unfair labor practices which first
occurred in July 1950. We find this contention without merit. As
has already been established in numerous decisions, the Board' s juris-
dictional criteria expressed in terms of annual dollar volume of busi-
ness do not literally require evidentiary data respecting any certain
4 Certain minor clarifications and corrections of the Intermediate Report are noted as
follows: ( 1) On September S. 1950 , Slagle, not Mosier, parked his car on the scale at the
Mercury Tipple. ( 2) On or about August 9 and 12 (not August 10) and September 8,
1950 , the Respondent Union and its agents engaged and directed a mass invasion of Mer-
cury's property , as detailed in the Intermediate Report . ( 3) In the Mercury case, "the
Respondent Union and its agents , Mosier and Slagle" ; and in the Pine Hill case, "the
Respondent Union and its agents Mosier and Slagle and Feist" engaged in the unlawful
conduct specifically described in the Intermediate Report ( delete the term "and/or" used by
the Trial Examiner). ( 4) In adopting the conclusion of the Trial Examiner that on
August 12 the Respondents threatened and attempted to assault or assaulted law enforce-
ment officers with bodily injury in the presence of Pine Hill employees , we rely specifically
upon credible evidence that one of the pickets shouted "let's throw them all over the hill,"
following which a "general melee" ensued between the police officers and the pickets lasting
about 3 minutes. Respecting the Taylor incident , while there is no evidence that Taylor,
dressed as he was in plain clothes, was known to be a police officer by the unidentified
picket with whom he was fighting , or by any of the other pickets or the Respondents ' agents
at the scene , we find , nonetheless, that this exhibition of force and violence presumptively
flowing from the whole illegal undertaking by the Respondents , had a coercive effect upon
the employees of Pine Hill, who were exposed to the incident . ( 5) We agree with the
Trial Examiner 's conclusion in the Pine 11111 case that the picketing at the Baylor Ramp
on August 12 was coercive under all the circumstances . See Cory Corporation, 84 NLRB
972; The Northern Electric Manufacturing Co., 84 NLRB 136. However , we do not adopt
the Trial Examiner's characterization of the Respondents ' conduct in this instance as a
"mass invasion" and "mass picketing." The other situations described herein as "mass
invasion" are clearly distinguishable on the facts.
' Hollow Tree Lumber Company, 91 NLRB 635.
Cf. Rowalt Coal Company, 92 NLRB 58.
Testimony of Robert C. Hogan , coal broker for these four companies.
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1391
12-month period of operations, but may be satisfied, for example, by
projecting or estimating commerce data for an appropriate annual
period.8
The Remedy
The General Counsel excepts to the Trial Examiner's failure to rec-
ommend that the Board issue against the Respondents a broad cease
and resist order, i. e., that they be enjoined from restraining or coercing
employees engaged in mining operations everywhere within the terri-
torial jurisdiction of District 2, United Mine Workers of America.
The Trial Examiner considered and rejected this contention of the
General Counsel. Distinguishing West Kentucky Coal Company,9
and relying directly upon Bitner Fuel Company,10 he found that in
the present case the evidence failed "clearly" to establish any planned
program on the part of the Respondents to apply their unlawful tech-
niques to all nonunion mine operators within the jurisdiction of Dis-
trict 2. We do not agree with the Trial Examiner.
In the Bitner Fuel case, the record revealed only that District 31's
unlawful conduct was directed against employees of the single com-
pany there involved. Here, however, as we have found, District 2
and its agents engaged in mass invasions of the separate mining facili-
ties of three unrelated companies, and committed specific acts of
coercion against the employees of these companies, as well as against
those of a fourth company, trucking contractor Gaiser, for the purpose
of compelling such employees to become members of the Union or assist
the Respondents in their unlawful deeds. Furthermore, admissions
in the record by responsible officials of District 2, and credible evidence
as to statements made by such officials, clearly indicate (a) that the
unlawful organizational methods of District 2 and its agents were
"not unusual," and (b) that the companies involved in the present
case "were not singled out" but were approached as part of a general
campaign begun in July 1950 to organize nonunion mines. Contrary
to the apparent holding of the Trial Examiner, to justify the issuance
of a broad cease and desist order in this case, it is not necessary that
we determine that the evidence here established, precisely as it did in
the West Kentucky Coal case, the existence of a "planned program"
by the Respondents to extend their unlawful techniques to all other
nonunion mines in the jurisdiction of District 2. It is sufficient, and
it is clear upon all the facts before us, that the coercive practices held
8 See, e . g., Fairmont Construction Company, 95 NLRB 969 ; Samuel A . Fllsburg Com-
pany, 95 NLRB 276 ; General Seat and Back Manufacturing Corporation, 91 NLRB 1511;
New London Mills, Incorporated, 91 NLRB 1003.
9 92 NLRB 916.
10 92 NLRB 953.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein to be unlawful have been typical methods and techniques re-
cently utilized by the Respondents in their organizational activities
and that a real danger of future commission by the Respondents of
the same unlawful acts may reasonably be anticipated, not only as to
the employees of the four companies involved in this proceeding but
as to employees engaged in mining operations everywhere within the
organizing jurisdiction of District 2. In order that the policies of
the Act may best be effectuated, the Board's cease and desist order
should, in our opinion, be coextensive with this threat?1 We shall
therefore issue the broad order against the Respondents requested by
the General Counsel.
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 Respondent, United Mine Workers
of America, District 2, its officers, representatives, and agents, and
specifically its agents, Respondents Clarence Mosier, Owen Slagle,
Joseph Feist, and John Kosik, and each of them, shall :
1. Cease and desist from restraining and coercing the employees of
Ziros Company, Mercury Mining and Construction Corporation, at
its tipple or other property located at Kaylor, Pennsylvania; Pine
Hill Coal Company; and R. H. Gaiser, or any other employees en-
gaged in mining operations within the territorial jurisdiction of Dis-
trict 2, United Mine Workers of America, in the exercise of the rights
guaranteed them by Section 7 of the Act, by using or threatening
them with force or violence, barring their ingress and egress to and
from work, physically preventing them from working, threatening
punitive action or reprisal against them unless they become members
of the United Mine Workers of America, or in any other manner re-
straining or coercing them in the exercise of their right to self-organ-
ization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their owri choosing, to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, and to refrain from any and all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
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
2, United Mine Workers of America, and in all places where notices
n See May Department Stores V. N. L. B. B., 326 U. S. 376 ; N. L. R. B. v. Express Pub-
lishing Company, 312 U. S. 426.
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1393
to employees are customarily posted, copies of the notice attached
hereto marked "Appendix A." 12 Copies of said notice, to be furnished
by the Regional Director for the Sixth Region, shall, after being
signed by an officer of District 2, be posted by District 2 immediately
and maintained by it for sixty (60) consecutive days thereafter.
Reasonable steps should be taken by District 2 to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Sixth Region signed
copies of said notice for posting, Ziros Company, Mercury Mining
and Construction Company, Pine Hill Coal Company, and R. H.
Gaiser being willing, on bulletin boards where notices to employees
are customarily posted.
(c) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
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, as amended, we hereby give notice that :
WE, United Mine Workers of America, District 2, and Clarence
Mosier, Owen Slagle, Joseph Feist, and John Kosik, as agents of
United Mine Workers of America, District 2, and each WILL
NOT restrain and coerce the employees, or any of them, engaged
in any of the mining operations of ZIRos COMPANY, MERCURY
MINING AND CONSTRUCTION CORPORATION, and PINE HILL COAL
COMPANY, and in the trucking operations of R. H. Gaiser, or any
other employees engaged in mining operations, within the terri-
torial jurisdiction of District 2, United Mine Workers of America,
in the exercise by them of the rights guaranteed to them in Sec-
tion 7 of the National Labor Relations Act, by using or threat-
ening them with force or violence, barring their ingress and
egress to and from work, physically preventing them from work-
ing, threatening punitive action or reprisal against them unless
they become members of the United Mine Workers of America,
or in any other manner restraining or coercing them in the exer-
cise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
It In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words, "A Decision and Order," the words,
"A Decree of the United States Court of Appeals Enforcing."
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protection , and to refrain from any and all such activities , except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment , as authorized in Section 8 (a) (3) of the Act.
UNITED MINE WORKERS OF AMERICA,
DISTRICT 2,
Union.
By --------------------------- ------------
(Representative ) ( Title)
CLARENCE MOSIER,
OWEN SLAGLE,
JOSEPH FEIST,
JOHN KosIK.
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 and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed with the Regional Director for the Sixth Region (Pitts-
burgh, Pennsylvania), on November 13, 1950, by William K. Cramer, an indi-
vidual, the General Counsel of the National Labor Relations Board,' by the
Regional Director issued a complaint, dated March 2, 1951, against Mercury
Mining and Construction Company, herein called Mercury, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act. A copy of the charge
and complaint, with notice of hearing, were duly served upon the Respondent.
Upon separate charges' filed with the Regional Director on January 8, 1951,
by John Ziros, d/b/a Ziros Company, R. H. Gaiser, and Alfred McCullough,
" Richard E. Jamieson , and Donald B. Coven , partners , d/b/a Pine Hill Coal
Company, and on January 12, 1951, by Mercury, herein called the Companies,
the General Counsel by the Regional Director, in accordance with an order
consolidating the four cases, issued a consolidated complaint, dated March 2,
1951, against United Mine Workers of America, District 2, herein called the
Union or District 2, Clarence Mosier, John Kosik, Owen Slagle, and Joseph
Feist, agents of District 2, alleging that the Respondents and each of them, had
engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (b) (1) (A) of the Act. Copies of the charge
1 The term General Counsel includes counsel appearing at the hearing on behalf of and
representing the General Counsel. The National Labor Relations Board is herein referred
to as the Board.
2 As appears in the caption of the case , each of the Companies filed prior charges with
the Regional Director. The records of the statistical section of the Board disclose that
these charges were directed against the Union and designated agents alleging violation of
Section 8 (b) (1) (A), (4) ( A) and (B) of the Act, and were filed by Ziros and Gasser on
September 5, 1950 , and by Pine Hill and Mercury on September 22 and October 2, 1950,
respectively. No formal proceedings were initiated under the charges and they were with-
drawn on January 12, 1951.
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1395
and complaint, with notice of hearing, were duly served upon each of the
Respondents.
On March 2, 1951, the Regional Director entered an order consolidating all
five cases and duly served a copy of said order upon each of the Respondents.
With respect to the unfair labor practices, the complaint against Mercury
alleges in substance that the Respondent on or about July 1, 1950, interrogated
its employees concerning their union membership and activities, threatened them
with economic reprisals, including a shutdown of operations, if they joined or
remained members of the Union, solicited employees to return to work during a
strike, and offered economic benefits if they would withdraw from the Union,
and did thereby interfere with, restrain, and coerce its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1)
thereof.
The Respondent filed its answer, dated March 22, 1951, wherein it admits
certain allegations of the complaint but denies the commission of any unfair labor
practices.
The consolidated complaint alleges in substance that about July 28, 1950, and
at various times thereafter, the Respondents conducted a mass invasion of the
mines, tipples, and ramps owned, leased, or used by the Companies, forcibly shut
down operations of the Companies, threatened employees with bodily injury if
they refused to cease work and joined in concerted activities in which the Re-
spondents were engaged and to compel the employees to join the Union, barred
ingress and egress of employees to and from various mines and tipples, damaged
or destroyed mine property, and threatened and assaulted law enforcement offi-
cers in the presence of employees, and by such acts and conduct did thereby re-
strain and coerce the employees of the Companies in the exercise of the rights
guaranteed in Section 7 of the Act; in violation of Section 8 (b) (1) (A) thereof.
The Respondents filed their answer, dated March 12,1951, which admits certain
allegations of the complaint but denies the commission of any unfair labor
practices. On March 20, 1951, the Respondents filed a motion to dismiss the
complaint and a motion for a bill of particulars with the Regional Director, who,
by order dated March 20, 1951, referred the said motions to the Chief Trial
Examiner. Thereafter, the motions were duly referred to Eugene F. Frey,
Trial Examiner, who, on March 22, 1951, issued a telegraphic order denying
the motion to dismiss and granting the motion for bill of particulars to the extent
that the General Counsel furnish the Respondents the approximate dates and
places where specified acts alleged in the complaint were committed. On March
26, 1951, the General Counsel served the Respondents with a bill of particulars
as required by the above order.
Pursuant to notice a hearing was held in Kittanning, Pennsylvania, on April
2, 3, 4, 5, and 6, 1951, before the undersigned duly designated Trial Examiner.
The General Counsel, the Respondent Mercury, the Respondent Union and its
agents, and the Companies were represented by counsel. All participated in the
hearing and were afforded an opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence pertaining to the issues. Counsel
for the Respondent Union and its agents moved to dismiss the complaint on
jurisdictional grounds and for lack of proof, which motions were denied by the
undersigned. Respondent Mercury at the conclusion of the General Counsel's
case-in-chief moved to dismiss the complaint for lack of proof, which motion was
taken under advisement by the undersigned. This motion, for the reasons set
forth below, is now denied. At the conclusion of the hearing counsel for the
parties presented oral argument before the undersigned. The parties were
1396 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
advised of their right to file briefs and thereafter counsel for the Companies
filed a brief with the undersigned.
Upon the entire record in the case and from the observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. COMMERCE
Mercury Mining and Construction Corporation, a Pennsylvania corporation,
maintains its office in Pittsburgh, Pennsylvania, and is, and was at all material
times, engaged in mining, producing, processing, and selling coal at strip mines
leased by it, located in the State of Pennsylvania. Mercury also owns and
operates a tipple located at Kaylor, Pennsylvania, herein referred to as the
Kaylor Tipple. During the year 1950, Mercury mined or sold approximately
134,000 tons of coal valued at approximately $448,000, of which about $391,000,
or about 88 percent, represents shipments to customers located outside the
State of Pennsylvania.
John Ziros, an individual doing business as Ziros Company, maintains an
office in East Brady, Pennsylvania, and is, and was at all material times, engaged
in mining, producing, and selling coal at three strip mines leased by him, lo-
cated in the State of Pennsylvania. In the conduct of his business Ziros sells
his coal to other companies and hauls the same, in leased trucks, from his
mines to tipples or ramps operated by companies situated in the State of
Pennsylvania. Admittedly these companies obtain title to the coal when it is
delivered at their respective tipples. During the year 1950, Ziros sold about
, 58,800 tons of coal, valued in excess of $161,000, of which amount the Respondent
Mercury purchased about 4,400 tons, West Freedom Mining Company, about
2,400 tons, and Hareliff Coal Company about 52,000 tons. As appears above
Mercury shipped about 88 percent of the coal it mined or purchased to customers
outside the State of Pennsylvania. Henry Lillemoen, a representative of Harcliff
Coal Company, produced records showing that of the 52,000 tons of coal it
purchased from Ziros approximately 45,000 tons, or about 87 percent, were
shipped to customers located in places other than the State of Pennsylvania.
Pine Hill Coal Company was, at all times material herein, a partnership
composed of Alfred McCullough, Richard E. Jamieson, and Donald B. Coven,
and was duly formed and registered under the laws of the State of Pennsylvania.
Pine Hill maintains its principal place of business at the home of Coven, in
Cowansville, Pennsylvania, and operates two strip mines located in that area.
During 1950, Pine Hill mined and sold about 30,000 tons of coal valued at ap-
proximately $80,000, practically all of which was sold to Robert C. Hogan,
a coal broker, at East Brady, Pennsylvania. Hogan testified that during 1950,
he sold about 28,400 tons of coal "on behalf" of Pine Hill, valued at $3 to $3.50
per ton, of which approximately 93 percent was shipped to customers outside
the State of Pennsylvania.
Richard H. Gaiser, Butler, Pennsylvania, is, and was at all material times, a
trucking contractor engaged primarily in the hauling of coal on a tonnage basis
for about 12 strip mine operators, including the Companies herein, all situated
in the State of Pennsylvania. Gaiser owned 2 trucks, 1 of which was used for
hauling coal and the other for general local hauling. In addition, Gaiser hired
other trucks on a tonnage basis, usually owned and operated by individuals
in the area, in his coal transport business. The number of contract trucks
varied with Gaiser's daily hauling commitments and at times in 1950 he op-
erated as many as 45 trucks per day and averaged about 20 trucks daily during
that period. In these operations the coal is dug and loaded into the trucks
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1397
at the mine and hauled directly to the tipple from which it is dumped into
railroad cars for shipment. During the year 1950, Gaiser's coal hauling opera-
tions grossed about $67,000, of which about $11,800 was received from Pine
Hill, $677 from Ziros, and $174 from Mercury.
At the hearing counsel for the Respondents moved at various times to dismiss
the complaint insofar as it alleges the commission of unfair labor practices
directed against Ziros, Pine Hill, and Gaiser for the reason they were not engaged
in commerce within the meaning of the Act. These motions were denied by the
undersigned.
The undersigned finds that Mercury, Ziros, Pine Hill, and Gaiser are engaged
in commerce within the meaning of the Act a
II. THE ORGANIZATION INVOLVED
In accordance with the admissions in Respondents' answer, and upon the
evidence relating to that phase of the case, the undersigned finds that the Union
is a labor organization within the meaning of Section 2 (5) of the Act, admitting
to membership employees of the Companies. For the same reasons the under-
signed further finds that Clarence Mosier, John Kosik, Owen Slagle, and Joseph
Feist were, at all times material, agents of the Union.
M. THE UNFAIR LABOR PRACTICES
A. Background
District 2 is one of about 31 districts existing by virtue of the constitution
of the International Union, United Mine Workers of America,4 and embraces
17 counties in western' Pennsylvania, excluding the Pittsburgh area. District 2
has about 35,000 members and is autonomous to the extent that its executive
board members, international board members, and vice president are elected by
the membership and provisional to the extent that its president, secretary, treas-
urer, and field representatives are appointed by the international president, sub-
ject to the approval of the executive board. According to Owen Slagle, a member
of the executive board and field representative for District 2, the union mines
produce annually about 25,000,000 tons of coal and the nonunion mines about
7,000,000 tons. Both Slagle and James Mark, president of District 2, stated
that the Union is continuously seeking to organize the nonunion mines in the
area, and during the summer of 1950 it did attempt to organize the employees
of the Companies but that the efforts thus made were neither unusual nor
exceptional.
B. Interference, restraint, and coercion on the part of Mercury
In July 1950,' Mercury had six employees exclusive of supervisors at its Kaylor
Tipple, including William K. Cramer and Ralph Bailey. These individuals were
first employed about March and were hired by Foreman Clarence Sebring, whom
the Company concedes to be a supervisory employee.
Cramer related that about July 23, while working at the tipple, Sebring told
him that a group of "pickets" were at the Harcliff Tipple, located about one-half
mile distant, and as the pickets would probably come to the Kaylor Tipple it
would be better to shut down operations "until this thing blows over." The
record fails to disclose whether the tipple was actually shut down that day, or
assuming that it was shut down how long it remained down. Again, there is no
8 Bitner Fuel Company, 92 NLRB 724.
See West Kentucky Coal Company , 92 NLRB 916.
s All dates refer to 1950, unless otherwise stated.
974176-52-vol. 96-89
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
evidence indicating that the pickets visited the tipple that day. In fact Clarence
Mosier, field representative of the Union, stated that he first went to the tipple
on July 28, as set forth below.
Mosier testified that on the morning of July 28, accompanied by about 25 mem-
bers of the Union, he went to the Kaylor Tipple and, after obtaining permission
from Sebring, spoke to 5 of the 6 individuals employed by Mercury. Mosier
outlined the benefits to be derived from membership in the Union and solicited
the employees to join his organization, which they agreed to do. Mosier and the
employees then went to Mosier's car which was parked a short distance from'tlie
tipple where they signed cards for membership in the Union. Following this
action Mosier and the employees came back to the tipple and the men returned to
work. Cramer and Bailey testified substantially to the same effect. Mosier then
informed Sebring that he wished to talk to an official of the Company in regard to
union recognition and contract terms and Sebring replied that he had no authority
in such matters and suggested that Mosier contact James Leedy, who was in
charge of operations at the tipple. Apparently, Mosier then left the Baylor
Tipple. The same afternoon Sebring asked Cramer if he had joined the Union
and when Cramer admitted that he had done so, Sebring "shook his head."
Bailey stated that Sebring asked all the men if they had joined the Union and
when they answered they had signed cards, Sebring said "you just signed your-
selves out of a job." Cramer also stated that at quitting time the same day,
Sebring told the men he did not know whether they would work the next day,
which was Saturday, but in any event the employees worked the following week.
On August 2, Mosier went to the tipple and met Leedy. Mosier informed Leedy
that the employees had joined the Union and requested a meeting with the
Company. Leedy told Mosier that he was simply a field representative of the
Company and had no authority to deal with the Union. He further stated that
John Porea, president of the Company, handled such matters and that he would
get in touch with Porea who in turn would contact the Union no later than
August 4. .
Neither Porea nor Leedy communicated with Mosier, so on the evening of
August 4, Mosier held a meeting with Cramer, Bailey, and two other employees at
his home, and advised the group since the Company had refused to meet with the
Union, they would strike the tipple the following Monday, August 7. Cramer
said the men worked Saturday, August 5.
On Sunday morning, August 6, Sebring called a meeting of all the employees at
the tipple. At this meeting George Heiles, assistant to Leedy,' in the presence of
Sebring asked the employees why they had joined the Union, and if it was only a
question of a pay increase or insurance benefits the Company might be willing to
grant these concessions. Cramer remarked that the Company would "probably
give us a fifty-cent raise and take fifty-one off." John Whited, another employee,
stated that the Company had promised an increase in the past but "we never got
it yet." Sebring also asked why the employees joined the Union. The employees
decided to talk over the matter themselves so they went into the weigh house and
after discussing the subject reached the conclusion that they would "stick with
the Union." The group then informed Heiles and Sebring of their decision and
Sebring answered, "If that is the way you want it-there will be no work until
further notice." The meeting thereupon concluded. The same evening Sebring
told Bailey the tipple would operate Monday and all of the employees reported for
work that day.
On Monday, August 7, Mosier and Slagle came to the Kaylor Tipple with
about 25 members of the Union. Mosier, in the presence of the group, told
9 Cramer stated Heiles was a truck contractor . However, F. Thomas Eberlein, secretary-
treasurer of the Company, said he was assistant to Leedy. --- . ' . ---`c - - ' 7 11
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1399
Leedy that Porea had failed to meet with the Union so Mosier was "forced to
ask the men to cease work until such time as Mr. Porea met with us." Leedy
did not engage in any discussion with Mosier. Mosier then advised the employees
that the Company had refused to meet with him so the employees, as related
by Cramer, "shut the tipple down and joined the picket line."
Several days later Sebring and S. E. Emhoff, who was engaged in the business
of leasing and purchasing coal for various coal operators, visited Bailey at
the river where he was painting his boat. Sebring told Bailey there would-
be no further work until "they got things straightened up." Emhoff state
"they" had $45,000 to run the Union out and to establish one of their own.
Sebring or Emhoff, or both, advised Bailey that a new crew had already been
hired at the Kaylor Tipple. Bailey was questioned as to his reasons for-
joining the Union and he said efforts were made to have him state that he was
forced to join under threats of a physical beating. Emhoff wrote out a state-
ment which he requested Bailey to sign but he refused because it was inaccurate
in certain respects.' About the same time, Sebring and Emhoff called upon
Cramer at his home and showed bun the statement alleged to have been given
by Bailey. They then requested Cramer to give them a statement and asked
if he desired to return to work. Cramer told them he would not give any
statement and apparently desired additional time to consider their offer of
reemployment.
It seems clear that Cramer, Bailey, and the striking employees were not
reemployed, that they were replaced with new employees, and that the Union
maintained pickets at the tipple from about August 9 to September S, during
which time the Company continued to operate on a part-time basis x As set
forth below, union representatives discussed or attempted to discuss the so-called
issues with company officials but these efforts failed to resolve the dispute.
The record does not reveal any final determination of the issues, or the positions
of the parties, other than the Union ceased'picketing on September 9.
The Respondent Mercury called no witnesses and offered no evidence in
this case. Counsel for the Company moved to dismiss the complaint on the
grounds that the evidence adduced by the General Counsel failed to sustain
the allegations in the complaint, which motion was taken under advisement
by the undersigned. For the reasons hereafter stated the motion is now
denied.
Conclusions and Findings
As the testimony of Cramer and Bailey was not contradicted or denied, nor
impaired upon cross-examination, it is accepted and credited by the undersigned.
The evidence thus adduced by the General -Counsel discloses that Foreman
Sebring, on July 28, questioned all of the employees concerning their membership
in the Union and when advised that they had joined the Union, he remarked that
they just signed themselves out of their jobs. The undersigned further concludes
that on or about August 9, Sebring and Emhoff questioned Bailey in regard to
his membership in the Union and his reasons for becoming a member thereof.
Interrogation of this character followed by an unqualified threat of mass dis-
charge because of the employees' membership in the Union clearly constitutes a
violation of the Act. (Supreme Bedding & Furniture Company, 93 NLRB 1660.)
Thereafter on August 6, subsequent to the Company's refusal to meet with the
4 The so-called statement was received in evidence at the hearing and although it is
rather incoherent, the gist of it seems to be that if the employees themselves had not shut
down the tipple, the Union would have done so, and that the employees were' satisfiecc
with their jobs before the pickets "bothered" them
8 As the complaint does not'allege a violation of Section 8 (a) (3), the question of rein-
statement is not discussed.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union which had been designated by the employees as their collective bargaining
representative, Sebring called a meeting of the employees and inquired as to
the reasons for their joining the Union. At the same time Heiles made like
inquiry, and stated that the Company might be willing to grant wage increases
and insurance benefits, if such matters were the only issues involved. When,
after discussion, the employees rejected the proposal both Sebring and Heiles
warned that there would be no work until further notice. Although Heiles'
proposal may have been couched in veiled language, the plain import considering
the circumstances under which it was uttered, was that the Company was willing
to grant economic concessions for the purpose of discouraging its employees from
becoming or remaining members of the Union, or from engaging in activities on
its behalf." Moreover, any doubt concerning the nature and purpose of the
proposed concessions is fully eliminated by the conduct of Sebring and Heiles,
who, upon being advised the men rejected the offer and decided to remain with
the Union, declared that there would be no work until further notice. It is true
that the employees did work the following day but, in the opinion of the under-
signed, this action neither justifies nor condones the threats previously made.
The undersigned therefore concludes that the Company, on August 6, unlawfully
offered to grant economic benefits to its employees and, when this offer was
refused, threatened its employees with economic reprisals, namely, the loss of
their jobs. (Intertown Corporation (Michigan), 90 NLRB 1145.)
By engaging in the foregoing conduct and action, the undersigned concludes
and finds that the Company interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act and thereby
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
C. The union unfair labor practices
1. The Ziros case
a. The events of July 26
In July Ziros was operating the Hays Pit, located near Sherett, Pennsylvania,
on a 2-shift basis and employed 3 men on each shift. On July 26, about 8: 30
in the morning, Ziros and 2 employees were in the pit, which was 25 or 30 feet
deep, repairing the shovel. Lawrence G. McCall, who was "chauffeuring" for
Ziros, was with the group, although not working on the repair job. Joe You-
house was also at the mine seeking employment but apparently he was not down
in the pit. While thus working, McCall told Ziros there were some fellows on
the highwall who wanted to see him and when Ziros looked up he saw Mosier and
Slagle leading a group of men. Mosier told Ziros to come out of the pit and as
Ziros started to walk up someone called to the employees "to come up too, we're
not going to hurt you." Upon reaching the highwall Ziros observed that Mosier
and Slagle had about 200 men 10 with them and at least 25 cars were parked in
the area blocking the entrance to the pit. When Ziros approached Mosier, be
inquired, "What's up?" and Mosier told him, "We're here to see you sign a con-
tract." Slagle then went to his car, secured a contract from his briefcase, re-
-turned to Ziros and said, "You sign these and your men will sign them after you."
Ziros told Slagle he would not be the first operator to sign and Slagle answered
"Someone has got to be the first," and that the Union was going to sign all the
operators in the area. Mosier and Slagle talked to Ziros in regard to signing
9 The Company did not contend or argue at the hearing that this conduct was protected
by virtue of Section 8 (c) of the Act.
10 Counsel for the Union moved for a bill of particulars giving the names or descriptions
of these men which motion was denied by the undersigned.
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1401
the agreement and pointed out that Ziros and the nonunion operators "were de-
stroying the Industry and everything else." At that time the men with Mosier
and Slagle , who were "right in front of" Ziros and his men , started "to move
around" and someone shouted, "Throw the son of a bitch over the wall," and
"He won't load any more coal, we'll blow up his machinery." Ziros complained
to Slagle that, "This is a hell of a way to come up here," and he answered, "Well,
its better for me to come up this way and not let this gang go." Ziros was anxious
to get out of "the mess" without being hurt, so he told Mosier that he had to
consult with other persons in his company, which he admitted was not true, and
that he would contact Mosier later. Mosier asked Ziros when he would contact
him and Ziros replied about 4 o'clock that afternoon. Mosier offered to meet
at that hour but Ziros refused, stating he would telephone him. Mosier , Slagle,
and the group then left and it required about 45 minutes for all of the automobiles
to leave the property. Ziros stated that although he did not see anyone damage
his property or equipment, he found that his compressor truck had a broken wind-
shield and the mirrors torn off. Ziros did not call Mosier or Slagle that evening
because, as he stated to McCall, "I had no business with him."
In substance, McCall testified to the same effect as Ziros . McCall also stated
that while Ziros, with his 3 employees, was talking to Mosier and Slagle, they
were encircled by about 200 men who were standing so close that "you could
reach out and touch any of them," and that they remained at the mine about 1
hour.
Mosier stated that during the summer or fall of 1949, he had organized the
employees of Ziros at several of his mines but before he could even talk to Ziros
these employees would be replaced with new employees." For this reason, as
well as other unstated reasons, Mosier and Slagle went to the Hays Pit II on
July 26, accompanied by 25 to 50 men. Upon arriving at the mine Mosier called
Ziros, who was working in the pit, to come up to the highwall which he did.
Two of Ziros' employees came with him. Slagle testified that when Ziros
approached him, he made the remark that he had "fixed" Slagle , who had
caused Ziros to pay overtime rates under the wage-hour law, by reducing the
hourly rate of his employees by 25 cents. Slagle stated that the Union had signed
up his employees on several occasions but that Ziros had discharged the em-
ployees, or forced them to quit because of "miserable" working conditions.
Slagle further informed Ziros that he and his type of employer were destroying
the industry and "you have been here long enough that the Mine Workers will
have to do something about this in some manner." Ziros replied that persons
other than himself were interested in the Company and agreed to meet with
Slagle or call him that evening. This concluded the meeting and the men left
the mine. Ziros did not contact Slagle that evening as he had promised. Mosier's
version of the discussion between Ziros and Slagle is substantially the same
as related by the latter. Both Mosier and Slagle denied that any threats were
directed against Ziros or his employees or that any damage was inflicted upon
mine property or equipment.
Ziros, on rebuttal, denied that he made any statement to Slagle in regard to
overtime rates or that he had cut wages 25 cents per hour. However, he did
admit the hourly wage reduction but stated that this action was prompted
" During this period Mosier said he signed up four employees as members of the Union,
William DeCorte, Max Shearer, Lester Young, and Adley Davis. He further stated that
he signed up four other employees working at the Hays Pit on July 29 and August 7.
Ziros, testifying in rebuttal , admitted the above-named individuals were at various times
employed by him from about June 1949 to early 1950. He admitted that he discharged
DeCorte in July 1949 because he overturned the shovel , and that the remaining employees
quit their employment with him.
12 Mosier referred to this mine as Beaver Dam.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through economic conditions. Ziros further testified that he had no knowledge
that any of his employees joined the Union, or that the Union, prior to July 26,
made any demand upon him for recognition or requested any meeting for the
purposes of collective bargaining.
b. The events of July 29
Mosier admitted that on July 29 he went to the "same job ... near the
Sherett area.""' However, Mosier was not questioned concerning the circum-
stances of this visit nor the events that transpired after arrival at the mine.
Ziros was not present at the mine on this occasion. Sergeant Chester P. Hoover
and Corporal Joseph L. Young, of the Pennsylvania State Police, testified that
on one occasion they went to the Hays Pit, or Beaver Dam, pursuant to a radio
call that pickets were at the mine but when they arrived they found no pickets.
Hoover and Young did meet a "Mr. Youhouse" on the public road that leads to
the property, who identified himself as mine superintendent, and reported that
pickets had been to the mine and that half a barrel of oil had been tipped over.
Hoover believed the incident occurred on July 26, while Young placed the date as
July 29.
The bill of particulars furnished by the General Counsel alleges that the
activities on this date occurred at Ziros' Wally Farm 14 mine located near
Queenstown.
c. The events of August 5
Clyde L. Miller stated that he was employed by Ziros as shovel operator at
the Tom Wally mine near Queenstown. On the morning of August 5, Miller
with 2 welders, who were not employees of Ziros, were in the pit repairing the
shovel when Mosier, Slagle, "Frazier" (evidently Feist), and about 75 men
came upon the property. Mosier and Slagle, and apparently some of the men,
came to the shovel and Mosier asked Miller if he was the operator and he replied
that he was. Mosier explained that he came to the mine for the purpose of
having Miller join the Union and Miller told him that he would not join any
union. Mosier stated that some of Ziros' men had joined the Union which state-
ment was questioned by Miller. Miller further related that he was performing
his work and it was his own business whether he became or refused to become
a member of the Union and if the rest of the employees joined he could quit
or do whatever he wished. Mosier then informed Miller if he wanted to work
for Ziros he would have to join the Union. Miller said he "didn't think so"
and they then engaged in a brief general discussion of organization. Mosier
said it was no use talking to Miller and asked him if there were any other
employees at the mine. Miller said there was a bulldozer operator who had
just left. Mosier stated he had talked to this man who told them he was not
employed by Ziros. Mosier and the group of men declared that they would
"kill him for lying to us." They then left the property. Miller said that the
entire incident lasted about 15 minutes and while talking to Mosier he observed
1 or 2 men in the group throwing stones. After the group left Miller found
that a window in the shovel had been broken, a drum of motor oil was turned
over, and the bulldozer was slightly damaged.
Feist testified that he, Mosier, Kosik, and several other men went to the
Wally Pit on August 5. He could not recall how many men accompanied them
other than they came in about seven cars nor could he recall how many pas-
sengers were in each car. Feist said that Miller refused to sign a union card
' Ziros also operated a mine at the McKee Farm about 3 miles north of Sherett.
14 In the transcript the name appears as Wally Farm.
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1403
because "this is my coal he [Ziros] is stripping and . . . I got this job as shovel
operator which gives me quite a nice compensation." Feist and Mosier talked
to Miller about the benefits of belonging to the Union and as they were leaving
the pit Miller evidently told one of the men in the group that he wished to see
Mosier that night or the following night. Feist denied that the group damaged
any property or equipment, or that he saw any of the men throwing stones.
From the foregoing evidence it is clear that Mosier, Slagle, and Feist leading
a large group of pickets came to the properties of Ziros on July 26 and August
5, for the purpose of obtaining an agreement from Ziros and compelling his
employees to become members of the Union. Mosier admitted that he "as-
sembled" from 25 to 50 members of the Union, who were under his "control,"
to accompany him to the mine on July 26. Mosier explained that in order to
protect himself he was accompanied "sometimes" by a large group of union
members and on this particular occasion he obtained protection because of his
fear of Ziros. However, Mosier was unable to cite any action or conduct on
the part of Ziros occurring prior to July 26, or even thereafter, which might
afford any reasonable grounds to support his assertion that he was in fear of
Ziros. Similarly Slagle sought to justify the large number of pickets on this
occasion on the grounds that protection was necessary but, like Mosier, he was
unable to relate any incidents even remotely connected with Ziros, taking place
before or after July 26, which might reasonably serve as a basis for his con-
tention that protection was necessary. The undersigned accordingly rejects
the above explanations by Mosier and Slagle as being without merit or substance.
Again, the Respondents' version of the events that transpired at the mine after
their arrival on July 26 and the bare assertion that no threats were directed
against Ziros or his employees or, the denial that any mine equipment was
damaged is not persuasive. It seems unlikely to the undersigned that consid-
ering the purpose of their going to the mine, Mosier and Slagle simply discussed
conditions generally in the nonunion mines and informed Ziros that the Union
would "have to do something" in regard to these conditions. The undersigned is
of the same opinion concerning the visit of August 5. Further, assuming that
Mosier and Slagle may not have observed any members of the group engage in
any unlawful conduct, nevertheless, the result would be the same since Mosier
and Slagle engaged in , directed, and controlled the mass invasions of Ziros'
mines, hence it is immaterial that there is no affirmative showing that particular
contemporaneous coercive acts were specifically authorized by the Union or its
agents. (Bitner Fuel Company, supra.)
The undersigned therefore accepts and credil s the testimony of the witnesses
for the General Counsel in respect to the above incidents and on all the evidence
concludes and finds that the Respondent Union and its agents Mosier, Slagle,
Feist, and Kosik: (1) On or about July 26, engaged in and directed a mass
invasion of Ziros' mine which caused a cessation of operations; (2) on August 5,
engaged in a similar mass invasion of Ziros' mine ; (3) threatened Ziros, in
the presence of his employees, with bodily injury unless he signed an agreement
with the Union; (4) threatened and intimidated the employees of Ziros to compel
them to become members of the Union; (5) threatened and warned the em-
ployees that they would not be permitted to continue work unless they became
members of the Union; and (6) damaged mine equipment and threatened to
destroy mine property in order to compel the employees of Ziros to join the
Union. By reason of the foregoing conduct, the undersigned concludes and
finds that the Respondent Union and its agents, Mosier, Slagle, Feist, and
Kosik, restrained and coerced the employees of Ziros in the exercise of the
rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence is insufficient to warrant any conclusion or finding that the
Union and its agents engaged in any unfair labor practices on July 29.
2. The Mercury case
Raleigh G. Kelly stated that he was first employed by Mercury on August 2
as a watchman , and on August 8 was transferred to the picking table, a phase
of the tipple operation. Kelly averaged 2 or 3 days per week and worked at
the tipple until it closed down on some undisclosed date but he continued to
work for Mercury at another operation until about October 15, when he left
its employment . Kelly was on the 4 p. m. to midnight crew, at least up to
August 8, and on two occasions he worked with Cramer and Bailey, obviously
on a part-time basis as these men were employed on the day shift. However,
he was not present when the day shift ceased working on August 7. Kelly
was never asked to join the Union, although he did become a member in February
1951 while employed by another company.
Kelly said that on the morning of August 9, Mosier , Slagle , and an undis-
closed number of pickets came to the tipple "stayed around there for a while
and eventually left." Sebring shut down the tipple, the record is not clear
whether this action was taken before or after the arrival of the pickets, and
the employees went home.
About noon the following Saturday, August 12, Slagle with about 75 pickets,
came to the tipple and told Kelly "to get off those premises and stay off," so he
closed down and went home.
Kelly further said that during one of the visits by Mosier, Slagle, and a group
of men, apparently about August 12, he observed an unidentified man park his
car near the approach of a bridge and let the air out of one of the tires. The
car remained at this point for about 30 minutes until it was moved by police
officers. During this interval the trucks were prevented from crossing the
bridge and entering the road leading to the tipple. Sergeant Hoover testified
that on one occasion, he did not give the approximate date, when Mosier and a
group of men were at the tipple, a car with a flat tire was parked in such a
manner so as to block entrance upon the road leading to the tipple. Hoover
said the car was parked for about 5 minutes, barring the ingress of two loaded
trucks to the tipple road , and that he and other officers had to push the car
out of the way.
On Friday, September 1, Kelly stated that the tipple was operating but shut
down when Slagle and about 50 pickets arrived. Kelly and 4 or 5 employees
were seated in a car parked near the tipple when some of the pickets told them
to get out as they were going to shove the car over the hill. Kelly did not
testify further concerning this threat.
On Saturday, September 2, Kelly went to the tipple for his pay and there
met Sebring and 5 of the employees . Kelly and the employees were in or about
the scale house when Slagle and about 50 pickets came upon the property.
Slagle told Kelly and the employees to leave the premises and to "go home until
everything was settled ." Kelly replied that he was not in charge so when
Sebring came out of the scale house Slagle repeated his remarks , whereupon
Sebring sent the employees home without giving them their pay.
On September 8, Kelly said Mosier, Slagle , and about 75 pickets came to the
tipple and told the employees they "shouldn 't be there . . . and things like
that." This time Mosier and his group were preceded by about 12 women
pickets who called the employees "scabs" and other names. During the day
a car was parked and locked on the scale , which prevented the trucks from
using the tipple , and eventually the tipple shut down. The pickets did not
return after this date.
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1405
William Platz testified he was first employed at the Kaylor Tipple about
August 9 as a watchman, and on August 11 or 12 was put on the picking table.
He quit his employment about October 15. Platz stated that while the tipple
did not operate every day nearly "every time we ran" pickets were present and
be estimated that between August 9 and September 8, they came on about four
or five occasions.
Platz fixed the number of pickets on August 9 at about 75, but stated no one
said anything to him. Concerning the incident of September 1, Platz said he
was seated in his car parked on top of the tipple when someone shouted to
shove the car over the hill and still another picket threatened to pull him out
of the ear and beat him. Platz related that the following day, September 2,
he and other employees of Mercury were at the tool house waiting for their
pay when Slagle and about 50 men came upon the property. Slagle told the
employees to "get off," that they should not be on the property and when the
employees explained that they were waiting for their pay checks, which were
at the company store, he said to go to the store and get them. Platt stated
that the employees in order to avoid any argument left for their homes without
obtaining their checks. In other respects Platz testified to substantially the
same effect as Kelly, except that he was not questioned concerning the visit
of Slagle on August 12.
Richard H. Gaiser stated that on September 8, his truck as well as the con-
tract trucks were hauling coal from the Pennboro Coal Company mine to the
Kaylor Tipple. Early that morning a number of cars parked on the road at
the foot of the hill leading to the tipple where the occupants alighted and re-
mained for about 30 minutes. Approximately 10 or 12 women then went to
the tipple and about 10 minutes later Mosier, Slagle, Feist, Kosik, and about
200 pickets followed them onto the property. On this haul the trucks first drove
onto the scale where the coal was weighed then backed up the ramp and dumped
the coal into a bin at the tipple where it went over the picking table. Although
the number of pickets made it difficult for the trucks to operate they continued
to unload during the morning. However, at noon Slagle parked his car on the
scale, followed by a second car parked immediately behind Slagle's, which barred
the trucks from using the scale and as a result 14 trucks were prevented from
unloading that day. Gaiser, at Leedy's suggestion, called a wrecker truck to
remove the cars but when it arrived the women pickets "flung themselves over
the cars," so Captain Hanna of the State police said not to attempt to move
them because someone might be injured. The trucks remained at the tipple
until about 4: 30 that afternoon and finally unloaded at other tipples some
distance from Kaylor.
During the morning it became necessary for the trucks to empty the "bony
bin" " but the pickets had the usual entrance blocked with their cars, which they
refused to move, so the trucks were required to back over the railroad tracks in
order to reach the bin.
Donald Harbison, employed by Gaiser as truck driver, stated that he made
three or four trips during the morning from Pennboro to the Mercury Tipple
and was able to unload despite the presence of a large number of pickets at the
tipple. In the afternoon Slagle parked his car on the scale which prevented the
trucks from weighing in °ad resulted in the tie-up of a number of trucks. Har-
bison said he waited ab ,t 3 or 4 hours at the tipple and finally unloaded at
Carbon Center, another tipple located about 20 miles from Kaylor.
PS In running over the picking table, the impurities, dirt and slatelike material, are re-
moved from the coal and thrown into a bin. It is, of course, necessary to empty the bin
to continue operations.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emhoff and Hogan testified concerning the presence of pickets at the tipple
and that Slagle prevented the trucks from unloading by parking his car on the
scale. In substance, they further testified that in the afternoon Leedy left the
tipple and returned with the sheriff and Golden, attorney for the Union. Shortly
thereafter, the sheriff, Leedy, Golden, Slagle, Feist, and others left the mine.
Slagle and Feist came back to the tipple after about 2 hours. Hogan remained
at the tipple until about 4: 30 that afternoon , and when he left Slagle's car
was still parked on the scale.
As set forth above (supra, pp. 1998-1399), Mosier on July 28 signed up five of the
six employees at the Kaylor Tipple and when efforts to meet with the Company
proved unsuccessful, the Union on August 7 ordered the employees to cease
work and placed pickets at the tipple.
On the morning of August 10, Mosier and Kosik met with Sebring, at the Tat-
ter's request, at the tipple. There, Sebring, in the presence of Sergeant Hoover,
,stated that representatives of the Company wished to meet with the Union that
afternoon at the office of its attorney, Charles Harrington, in Kittanning. Mosier
inquired if the Company would be represented by someone in authority and
Sebring replied in the affirmative. Mosier repeated that he wanted to be certain
that such a representative would be present because from his past experience
with companies there were times when this was notatrue and Sebring again
assured Mosier that the company official would have authority to deal with the
Union and further promised that the tipple would not operate any more that
day. Mosier thereupon agreed to attend the meeting and the discussion con-
cluded. Kosik and Sergeant Hoover testified substantially the same as Mosier.
That afternoon Mosier with a union committee composed of Slagle, Kosik,
Feist, Luther Beynon, and Attorney Golden, went to Harrington's office for the
meeting but were advised that it would be held in a local bank building. The
union committee then went to the bank building where they found about 25 per-
sons representing various nonunion mine operators, including Mercury, Ziros,
and Pine Hi11. Seemingly, Slagle opened the meeting by asking the company
representatives if they had authority to negotiate agreements with the Union
and a few of the representatives, including Leedy and Emhoff, admitted they had
no authority to do so while the rest of the representatives remained silent. In
view of this situation Golden, according to Beynon, inquired as to the purpose
of the meeting whereupon Harrington stated that it had been called for a "good
purpose" and that the merits of the existing controversy in the mines should be
discussed. Harrington then declared that "this is the wrong time for an organi-
zational movement" and suggested that Slagle agree to discontinue efforts to
unionize the mines. The union representatives observed that Emhoff was taking
notes, which they objected to, and the parties then engaged in "sort of a gen-
eral discussion." At sometime during the meeting, probably toward the con-
clusion thereof, Slagle declared the union committee came to the meeting for the
purpose of negotiating an agreement with Mercury and since the representatives
of Mercury and the other operators had no authority to negotiate, he could see
no reason for continuing the meeting. Slagle finally advised the company repre.
sentatives that the Union was ready at all times to meet with them for the pur-
poses of negotiating an agreement. The meeting, which lasted about 15 min-
utes, then adjourned and there is no evidence to indicate any meetings were
held thereafter.
Slagle arrived at the property about 10:30 the morning of September 8, when
the Union had about 30 pickets present, parked his car near the store and walked
up to the tipple. Slagle talked to Leedy in regard to contract negotiations and
getting the employees back to work but Leedy replied that he had no authority
in such matters and as Porea was sick he did not know what could be accom-
UNITED MINE WORKERS OF- AMERICA,--DISTRICT :2_ - 1407=--
plished. Apparently, that terminated the conversation but Slagle remained at
the tipple until about noon. During this interval Slagle stated there were no
trucks unloading at the tipple. Slagle had sandwiches for the pickets, which
were in his car, so at noon he drove from the store to the tipple and parked on
the scale. A second car belonging to one of the union members, also containing
sandwiches, was parked on the scale. While thus parked, the pickets gathered
about the cars and the sandwiches were distributed. At this time Sheriff Tom
Hutchison, with Attorney Golden, arrived and advised Slagle and the union
representatives that they were under arrest and to return to Kittanning at once.
Slagle and his group then drove to Kittanning where they appeared before Squire
Carl Watts and were released on bail. Slagle returned to the tipple about 3: 30
and informed the pickets what had occurred. At Slagle's suggestion the pickets,
as well as himself, then left the tipple. Slagle denied that he intended to park
his car on the scale for an indefinite period and denied that he locked the same.
Conclusions and Findings
The facts in the Mercury case are substantially undisputed. The testimony of
Kelly and Platz concerning the incidents of August 9 and 12 and September 1
and 2 is undenied and is accredited by the undersigned. With respect to the
occurrences on September 8, Mosier admitted that his car as well as another
were parked on the scale but denied that the coal trucks were unloading at the
time and further declared that he was prevented from moving his car as he was
arrested and required to leave the property during the afternoon. While it
may be true that the trucks were not using the scale at the precise time when
he parked thereon, the testimony of witnesses for the General Counsel con-
clusively shows that the trucks were unloading that morning, although with
difficulty because of the pickets, and continued to do so until Mosier's action
barred their using the scale resulting in 14 trucks being unable to unload at the
tipple. Nor is the undersigned impressed with the contention that Mosier did
not move his car because of his arrest. In the first place Mosier had no right to
park on company property without its permission, much less on the scale, where,
by so doing, he knew from past experience that this action would effectively
prevent the trucks from unloading their coal. Again, it seems plain that Mosier
maintained his car on the scale for quite some period of time prior to the arrival
of the sheriff and when he was forced to leave for Kittanning, there is nothing
in the record to indicate that he offered to move his car prior to his departure
from the tipple. The Respondent Union and its agents seek to justify their
course of action against the Company because of the latter's refusal to recognize
the Union as the bargaining representative of its employees and to engage in
bargaining negotiations. The undersigned is convinced that the Company, from
the time its employees first joined the Union, July 28, did consistently refuse to,
grant recognition or to engage in genuine collective bargaining negotiations with
it. In such circumstances, Congress afforded an adequate remedy under the
Act to labor organizations willing to comply with the requirements of the pro-
visions thereof. Even apart from this statutory remedy the Union had the
unqualified right to enforce its demands through lawful economic means, in-
cluding the right to engage in strike action or to picket the Company's opera-
tions, at least at the scene of the dispute. Here, the Union and its agents did
not limit their activities to a lawful picket line but, as found below, engaged in
conduct which cannot be justified or excused under the guise of protected con-
certed action. Accordingly, on all the evidence, the undersigned concludes and
finds that the Respondent Union and its agents, Mosier and/or Slagle: (1) En-
gaged in and directed a mass invasion of Mercury's property on or about August
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 and 10 and September 8, respectively, which caused a cessation of operations ;
(2) engaged in and directed a mass invasion of Mercury's property on or about
September 1 and 2; (3) on or about September 8, prevented the employees of
Mercury and Gaiser from using the scale at the mine; (4) on or about the above
dates threatened the employees of Mercury with bodily injury if they did not
cease work and join in the concerted activities with the Union; and (5) intimi-
dated the employees of Mercury and Gaiser in order to compel the employees to
cease work and engage in concerted activities with the Union. By reason of
the foregoing conduct, the undersigned concludes and finds that the Respondent
Union and its agents Mosier and Slagle, restrained and coerced the employees of
Mercury and Gaiser in the exercise of the rights guaranteed in Section 7 of the
Act and thereby engaged in unfair labor practices within the meaning of Sec-
tion 8 (b) (1) (A) of the Act.
3. The Pine Hill case
a. The union visit of July 29
Donald D. Coven stated that in July, Pine Hill was operating a strip mine on
property owned by Mrs. Dena F. Coven, Sugar Creek Township, located about 1%
miles from Sherett. The coal was hauled by Gaiser's trucks from the mine to
a ramp which was owned by the Western Alleghany Railroad Company, located
at Baylor, herein called the Kaylor Ramp, about 9 miles distant from the pit.
At this point the coal was dumped on the ramp and loaded into railroad cars.
On Saturday, July 29, Coven and Gaiser were standing in front of the tool
house on the ridge of the property when Coven observed a number of cars
entering the road leading to one of Ziros' mines situated about three-quarters of
a mile distant. After about 30 minutes Coven and Gaiser saw the cars leave
the Ziros' mine and enter the road leading to the Pine Hill mine. Coven and
Richard E. Jamieson, who was also present, assumed that they were repre-
sentatives of the Union or pickets and were coming to the pit, so they shut down
operations. About 10 minutes later the cars, numbering about 25, arrived at
the pit. The cars remained in line with the lead car being parked near the tool
house and the remainder on the pit road, which was wide enough for only 1
car or truck. Mosier, who was in the lead car, approached Coven, Gaiser, and
3 of the employees, introduced himself as being a representative of the Union,
and stated that he was there for the purpose of attempting to organize the job.
Mosier was accompanied by approximately 150 men who stood in a semicircle
around and very close to Coven, Jamieson, Gaiser, and the employees. James
Swank, an employee of Pine Hill, suggested that Mosier meet with the employees,
whereupon Coven, Jamieson, and the pickets moved about 100 feet away, in
order that Mosier might discuss the Union with the workers. Mosier outlined
the history of the Union to the employees, the benefits of organization, and re-
quested them to become members. Mosier warned the employees they should
join, otherwise the Union would not permit the Company to operate. The em-
ployees, according to Swank, told Mosier that the Company had 2 shifts of
employees and that he should talk to both crews in respect to organization
and recommended that a meeting be held the following Monday. This was
agreeable to Mosier and the discussion terminated. Mosier then asked Coven
if he could meet with the men on Monday and he replied that it was satisfactory
to him . Mosier and the pickets then left and loading operations were resumed.
Harbison testified that he was hauling for Pine Hill on the above date and
stated that approximately 30 or 40 cars carrying between 150 and 200 pickets
came to the mine.
UNITED MINE WORKERS OF AMERICA, 'DISTRICT 2 1409
Gaiser testified that Mosier first asked Coven and Jamieson if they would join
the Union and they stated that they had no authority in this respect and "would
have to see their other partner." Mosier then held a meeting with the employees
but seemingly, Gaiser, unlike the company officials and the pickets, did not
move away from this group for he testified concerning the meeting to the same
effect as Swank. At the conclusion of the meeting Gaiser introduced himself
to Mosier and asked him if he might finish out the day as he had but one more
coal car to load. Mosier replied that as far as he was concerned "it would be-
all right but he couldn't guarantee anything." Gaiser then went into the pit
where he had three trucks and told the drivers to start loading. Gaiser rode
with the first truck to leave the mine and as they entered upon the county
road, from the pit road, he saw eight of his trucks parked there and "a car withs
two pickets in it." Gaiser stopped and one of the pickets got out of the can,
came to the truck and told Gaiser, "you feel pretty chicky hauling coal just after
the pickets left there . . . We'll see that you get stopped." At that time a State
policeman came and told Gaiser to "get going . . . don't sit around talking
to them guys," so Gaiser left.
Mosier said that he went to the mine with about 25 men and when he saw
State police on the property he remarked to Jamieson that if the Company did
not want him there the police would see that he and the men left the premises.
Jamieson said there was no reason to leave and Mosier then asked for permission
to talk to the employees. Jamieson said this was agreeable to him but suggested
that Mosier wait until he could talk to all the employees, as well as Alfred
McCullough the other partner, and Mosier agreed to return the following Monday,
July 31. Mosier stated there was "no difficulty of any kind" on this occasion-
b. The meeting on July 31
Coven said that Mosier returned to the mine the following Monday unac-
companied by either union representative or pickets. When Mosier saw sev-
'eral State policemen he complained of their presence to Coven who re-
quested them to leave, which they did." Mosier then held a meeting with the
employees, apparently attended by seven full-time workers and one part-time
employee. After this meeting, Mosier told Coven that the Company "had a
loyal bunch of boys" whose thinking was along company lines, and that they were
not interested in joining the Union. Mosier thereupon left the property and
did not thereafter contact or make any demands upon the Company. Pine Hill
ceased operations at the Coven mine on August 1 and commenced operations at
another mine on the property of Eugene Jordan, near Queenstown.
Mosier stated that there were seven or eight police officers at the mine and
after complaining of their presence to McCullough and Jamieson, as well as
threatening to call off the meeting, the officers left the property. Mosier then
met with the employees and asked them to, join the Union. About three or four
of the employees said there was no use in their becoming members as they were
going into military service or quitting the Company. The employees then held
a "caucus" after which they advised Mosier they did not wish to join the
Union. Mosier informed McCullough and Jamieson that the employees were "not
in sympathy" with the Union. In response to their inquiry if this action would
lead to "any trouble," Mosier said as far as he was concerned it did not mean
anything, that he had simply performed his duty. He then left the property-
and did not thereafter return.
38 Covell denied he had requested the police to be present . He stated that one of the
officers was on duty on July 29 and heard Mosier say he would return on Monday so, for
that reason , the police voluntarily came to the mine.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Events at the Saylor Ramp on August 12
On August 12, Pine Hill was operating the Queenstown mine and hauling the
coal in Gaiser's trucks to the Baylor Ramp about 5 miles from the mine. On
the above date Coven and Swank were working on the ramp loading or handling
the coal. Gaiser, who was using 12 trucks on this haul, was also at the ramp.
He described the ramp as a plank platform , similar to a wooden bridge, level
with the public highway, and about 12 feet from the edge thereof, running back
to a chute which leads into the railroad cars. In unloading, the trucks backed
up the ramp to the chute which was directed into the railroad car.
Sergeant Raymond A . Blyth of the State police testified he was in command
of a detail of 9 officers on duty at the Kaylor Ramp on August 12. Blyth stated
that about 9 o'clock that morning approximately 100 pickets arrived in cars
which they parked a short distance from the ramp. Mosier and Feist led 1
group of pickets up the highway towards the ramp while another group used
the railroad tracks. Blyth approached Mosier and asked him to get the pickets
off the railroad tracks as they were on private property but Mosier said he
could do nothing and told Blyth to get them off himself. Blyth and several
officers went to this group and told them to move oft the tracks, which, ap-
parently, they did.
Coven stated Kosik came to the ramp and, after introducing himself as an
official of the Union, asked Coven if he had authority to order the cessation of
coal-loading that day and he replied he did not "because it involved too many
different people." Kosik also told Coven it would be advantageous to the Com-
pany if it belonged to the Union . Mosier and Feist joined Kosik, and Mosier
also requested Coven to cease his loading operations, which he refused to do.
Mosier told Coven if he did not stop loading that he would obtain more pickets
from Reimersburg where the Union was holding a picnic . Mosier and the union
officials left Coven and he continued his loading operations.
Swank was working on the railroad cars that morning when from 50 to 75
pickets came along the tracks and called him "scab" and "one thing and another."
Swank stated that the pickets left the railroad tracks when ordered off by
police officers, but they "were all over the ramp ," making it necessary for the
officers to clear a path so that the trucks could unload.
Gaiser said that during the morning about 25 or 30 pickets , including Mosier,
Feist , and Kosik , gathered immediately in front of the ramp entrance so that
it was necessary for the police to clear a path in order that the trucks might
use the ramp . As the trucks backed up the ramp the pickets called the opera-
tors "scabs" and shouted directions calculated to confuse the operators and
cause them to miss the ramp . About noon Mosier asked Gaiser to stop his
hauling operations and Gaiser agreed to do so, in order to find out how many
trucks were still working . The record fails to disclose what steps were taken
by Gaiser to stop his operations , but in any event he stated that he had but 8
trucks available and these were parked on the highway seemingly in the vicinity
of the ramp . Gaiser and the truckers were in a group waiting "for somebody"
to make up a decision when 10 or 12 pickets came over and "tried to talk them
into not hauling coal ." The truckers and pickets became involved in an argu-
ment and several of the pickets made remarks about wrecking the trucks.
When one of the truckers said he did not consider it "very nice" to wreck a piece
of equipment worth $5,000, one of the pickets answered "well, he wouldn't wreck
the truck , just pull the driver out and beat the hell out of him ." Kosik joined
in the discussion and asked the truckers to join the Union . When .they told
Kosik they worked for Gaiser , he asked him to consider joining the Union
but Gaiser refused , stating that he was not in the coal business . Kosik argued
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1411
that if the truckers became members and refused to haul coal the tipples could
not operate and would be forced to join the Union. Gaiser told the truckers
that it appeared that no decision could be reached so "we'll make one more
round we'll load that last car . . . [then] go home and let these guys fight their
own battles." The truckers agreed to Gaiser 's suggestion , and went to the pit
for another load. After the trucks left Gaiser went to the ramp where he was
met by Mosier and a number of pickets. Mosier told Gaiser that sending the
trucks back to the pit was the "saddest mistake" he ever made and he would
see that the trucks "didn't get dumped." Gaiser "argued around" with Mosier
and the pickets until Kosik shouted to the pickets to stop the argument and
Gaiser then left the group . As he was leaving one of the police officers told
him to get in his car and "stay out of the way," which he did. Gaiser remained
in the car until the first truck'returned to the ramp, a matter of a few minutes.
As the truck pulled into the ramp, Gaiser stated that the pickets made a "mad
rush for it" and it became necessary for the police "to prod" the pickets with
their clubs so that the truck could unload. After 3 or 4 trucks had unloaded
under similar circumstances, the railroad car could not be moved which pre-
vented at least 2 other trucks from unloading.
Harbison testified that he was hauling coal from Queenstown to the Kaylor
Ramp on August 12 and, like Gaiser, stated that pickets were stationed in
front of the ramp and he had difficulty in backing up to unload. He further
stated that Kosik , as well as 12 pickets who were with him, asked Harbison
and the truckers to join the Union. Harbison told Kosik he was "getting
along good enough without the Union" and refused to sign up. The pickets
then declared they would wreck the trucks and when Harbison said that
"wasn't very nice," they replied they simply "beat the hell out of us."
When the trucks appeared on the last haul for that afternoon pickets we
still stationed at the ramp and by this time their number in area had increased
to about 200. Coven said as one truck was unloading he heard a picket shout,
"Let's push him over the ramp." Several minutes later Coven heard the same
picket again shout, "Shove the son of a bitch over the hill," and he then saw
Corporal Taylor, who was not in uniform, and 2 men go down an embankment.
Another police officer in the crowd swung his club and 1 picket suffered a cut
head. Mosier, according to Coven, was 10 or 15 feet away from Taylor when
he went over the embankment. Gaiser heard someone yell, "Shove them over
the hill" and saw Taylor "struggling" with 4 or 5 pickets ; he stated all of
them went down the embankment. Gaiser also saw the police use their clubs
and heard Mosier shouting "stop." Gaiser said the incident lasted but several
minutes. Shortly thereafter all of the trucks unloaded and left the ramp.
Sergeant Blyth stated that he, Sergeant Hoover, and Private Barger, were
standing near the ramp, while the trucks were at the pit, when one of the
pickets stepped forward from the group and remarked, "Let's see how brave
these fellows are." Barger then pushed the picket back into the group. At
that time a convoy of nine loaded trucks arrived at the ramp and after several
had unloaded Blyth observed a "commotion" where the trucks were parked off
the highway. When Blyth arrived at the scene he found Taylor, Mosier, and
the picket who had made the above remark, down an embankment about 40
feet high, leading to railroad tracks. Blyth helped Taylor up the embankment
and when they reached the level Mosier came to him and asked "who is this
man," referring to Taylor. Blyth said he was a State policeman and told
Mosier to disburse the pickets. Mosier insisted that Blyth identify Taylor
and he again told Mosier to get the pickets away from there and that he would
identify every man in his detail. Someone in the crowd yelled, "Let's push
them all over the bank" and when Blyth turned around he saw Kosik, whom
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had met that morning, standing in the group. Blyth told Kosik to "get
these men back out of here" but he threw his hands in the air and said, "They're
out of my control, I can't do anything with them." Blyth then began shoving
.the pickets back with his baton and when one of the men grabbed the baton
another officer, Private Lynhart, struck him over the head and a melee ensued,
which lasted about 3 minutes. At this time Blyth again told Mosier to "dis-
burse these men," whereupon Mosier instructed the pickets to go back to their
cars, which they did. Blyth then identified Taylor and Lynhart to Mosier,
who in turn gave Blyth the names of some of the-men who were present.
Sergeant Hoover testified that when Barger pushed back the picket at the
ramp, Kosik said, "that's all right, he has a right to talk." Concerning the
Taylor incident, Hoover said that Mosier came up the embankment while Taylor
and the pickets were in a "scuffle" below and pointing to Taylor, told Hoover to
"arrest that man." In other respects, Hoover testified substantially the same
as Blyth.
Corporal Taylor did not testify at the bearing.
Mosier testified that he arrived at the Kaylor Ramp about 9 o'clock in the
morning and remained there until about 2 o'clock that afternoon. He also
stated that Kosik, Feist, and Beynon were there at different times during the
day. In addition there were several State police officers and "several pickets."
Mosier could not approximate the number of pickets because they "were coming
and going" but at times "there were more" than several present. Mosier ad-
mitted the pickets were all union members. In explanation of the presence of
the pickets, Mosier stated that the Union had been picketing the Mercury Tipple,
located about 1,000 yards from the Kaylor Ramp, because the Company was
employing "strikebreakers" and the pickets were "there together" at both places.
4osier did not know what company was operating the Kaylor Ramp on August 12.
While he knew Mercury was operating its own tipple, it "appeared" to Mosier
that "the same trucks were coming into all places . . . they went to the Mercury-
Tipple on coming to the ramps and dumping. I could see them dumping on
whatever ramp it was handy to dump on." Mosier stated that he was not
picketing the Kaylor Ramp and while some pickets were at the ramp, it was a
"general picket line" established by the men themselves but, other than being
present, he did not direct the picketing or do "anything." Mosier could not
"recall" that he made any attempt to find out whose coal was being loaded on
the Kaylor Ramp although he believed he saw Coven at the ramp and may have
talked to him. In regard to the occurrences that day, Mosier said he saw a
man "dressed in Kahaki clothing" pushing an "old man" towards an embank-
ment, and that somebody went over the same but he was not certain whether
it was these two men. Mosier also stated that State police officers, including
Blyth,struck three or four of the pickets.
Kosik was at the Kaylor Ramp on August 12, and as early as the previous
evening he knew he would be at the ramp. Kosik did not know what company
was operating the ramp but he saw some Mercury employees, who apparently
had replaced union members, in the vicinity and "we were there picketing for
their jobs " In the early afternoon pickets were present while the trucks were
unloading when someone shouted, "let that man alone." Kosik saw a man,
later identified as Taylor, "pushing one of our old pensioners over the hill,"
so the pickets immediately rushed to Taylor and a "free-for-all" ensued in which
the police used clubs and several pickets went down the hill. Kosik and Mosier
shouted, "Stop it" and in a few minutes the affair ended.
Beynon said the Union was picketing at the'Mercury Tipple that day, which
was not working, and he did believe that the pickets intended to go to the
Kaylor Ramp. However, Beynon said he saw one Mercury employee (the
UNITED MINE WORKERS OF AMERICA , DISTRICT 2 1413
parties stipulated that from his description he was referring to Platz) going
towards the ramp with a car jack, indicating perhaps that he was working on
the railroad cars. As the trucks were unloading that morning , the pickets
remarked that they were the same trucks that hauled for Mercury, and that a
Mercury employee was working there, so the pickets moved over to the ramp.
There the pickets were "milling around" and, as there "wasn't too much room,"
it was necessary for the police officers to direct traffic as the trucks backed into
the ramp. Like Mosier and Kosik , Beynon testified he saw Taylor, who was
not in uniform , grab and push an old man , a union member , which resulted in
a "melee" that lasted for several minutes.
The undersigned , on the evidence set forth above, finds that on July 29,
Mosier and approximately 150 pickets came to the mine for the purpose of
compelling the employees to join the Union. Mosier led a caravan of about 25
cars carrying the pickets which were parked on the mine road preventing the
use thereof. Although there is no evidence indicating that Mosier or the pickets
,threatened the employees with physical injury or damaged any property, the
absence of such conduct does not condone the mass invasion of the mine. Under
the circumstances , it seems clear to the undersigned , and it is so found, that
this conduct had a coercive tendency upon the employees of Pine Hill , especially
when it is considered that there were but 3 employees facing about 150 pickets.
Moreover , Mosier, in the course of his meeting with the employees , warned them
that the Company would not be permitted to operate unless they became members
of the Union . In finding that the Union and Mosier engaged in unlawful con-
duct on July 29, the undersigned has not based the same upon the conversation
between Gaiser and the 2 pickets on the county road for the reason that, apart
from the questionable coerciveness of the statements alleged to have been made
by the pickets , there is no showing that it was made in the presence of the
employees of either Gaiser or Pine Hill.
The evidence bearing upon the events of August 12, plainly demonstrates that
the Union and its agents engaged in a mass invasion of the Kaylor Ramp while
Pine Hill was unloading its coal. It is equally clear to the undersigned that
this display of force was staged for the purpose of forcing Pine Hill and Gaiser
to sign agreements with the Union and to compel their employees to become
members of the Union and to join with the Union in its activities . The evidence
adduced by the General Counsel depicting the actions and conduct of the pickets
and the union agents was not seriously contested , except for the Taylor incident
discussed below, and in fact received full corroboration from Sergeant Blyth
and Sergeant Hoover , witnesses for the Respondent Union. The testimony of
the above-mentioned witnesses is accordingly credited by the undersigned. The
Union 's contention , as related by Mosier , was that it was merely picketing at
the Mercury Tipple and not at the Kaylor Ramp , although a "general picket line"
was established by the pickets themselves at the ramp . Further , Mosier could
not recall that he made any effort to determine what company was operating at
the ramp but admitted he saw Coven and may have talked to him. Again, while
Mosier admitted the pickets were members of the Union , he could not estimate
their number , except that there were more than several present. The above
testimony of Mosier is neither convincing nor persuasive and is rejected by the
undersigned . The witnesses uniformly testified that Taylor and one, or perhaps
more, pickets became involved in an affray which resulted in a general melee,
lasting but a few minutes , between the pickets and the police officers . The par-
ticipants were not called as witnesses at the hearing and although much time
was devoted to this incident the record is still barren as to the cause of the
affair . The undersigned does not consider the incident too important in the
determination of the issues in this case . However, Kosik stated that when he
974176-52-vol 96-90
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Mosier shouted "Stop it" the melee ceased , and Blyth related that when
Mosier instructed the pickets to return to their cars they immediately left the
property . The quick compliance with the orders of Mosier and Kosik demon-
strates that the pickets were under the direction and control of Mosier and
Kosik.
The undersigned therefore concludes and finds that the Respondent and its
agents, Mosier, and/or Slagle, and/or Feist: ( 1) Engaged in and directed a mass
invasion of Pine Hill 's property on or about July 29, which caused a cessation
of operations ; ( 2) on or about the above date intimidated and coerced the
employees of Pine Hill and Gaiser , in order to compel them to join the Union and
to engage in concerted activities with the Union; ( 3) on or about the above date
threatened the employeess with economic reprisals unless they became members
of the Union ; ( 4) on or about the above date barred ingress and egress upon
the road leading to the mine ; ( 5) on or about August 12, engaged in mass picket-
ing at the Kaylor Ramp ; ( 6) on or about the above date threatened the em-
ployees of Pine Hill and Gaiser with physical injury in order to force the
employees to become members of the Union and to join in concerted activities
with it; ( 7) on or about the above date threatened law enforcement officers
with bodily injury in the presence of the employees of Pine Hill and Gaiser ;
(8) on or about the same date assaulted or attempted to assault law enforcement
officers in the presence of the employees of Pine Hill and Gaiser ; and (9) on
or about the same date attempted to bar ingress and egress of trucks using the
ramp. By reason of the foregoing conduct, the undersigned concludes and finds
that the Respondent Union and its agents Mosier, Slagle , and Feist , restrained
and coerced the employees of Pine Hill and Gaiser in the exercise of the rights
guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A ) of the Act.
4. The Gaiser case
The evidence and findings thereon in respect to the unfair labor practices
directed against the employees of Gaiser are set forth in the Mercury and Pine
Hill cases, supra.
Conclusions
The Board , in the West Kentucky Coal Company and Bitner Fuel Company
cases, supra, held that conduct on the part of the Union similar in nature and
character as found herein to be violative of the Act. Nor is there any question
as to the responsibility of Mosier , Slagle, Feist, and Kosik as agents of the
Respondent Union. The answer of the Respondents admits that they are, and
were, agents of the Union and the evidence adduced at the hearing fully sup-
ports this conclusion . The record unmistakably shows that each of these
individuals actively participated at various times in the mass invasions of
the mines and the Kaylor Ramp . Mosier admitted that he "assembled" the
pickets for the purpose of these invasions and that all of the pickets were
members of the Union . It seems clear therefore that, in the light of the Union's
determination to organize the employees of the charging parties, Mosier, Slagle,
Feist, and Kosik in pursuance of this plan were acting within the scope of their
authority as agents for the Union, and under the circumstances herein the
Union is responsible for the acts and conduct of this group and the pickets,
,who were under their direction and control , while engaged in implementation
and furtherance of the organizational plan.
From the foregoing , the undersigned concludes and finds that the Respondent
Union by and through its agents , Mosier, Slagle, Feist, and Kosik and others
UNITED MINE WORKERS OF AMERICA, DISTRICT 2 1415
.restrained and coerced the employees of the charging parties in the exercise
of the rights guaranteed them by Section 7 of the Act, in violation of Section
8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Mercury and the Respondent Union and
its agents set forth in Section III, above, occurring in connection with the
mining operations of Ziros, Mercury, and Pine Hill, and trucking operations
of Gaiser, set forth in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend
to lead, and have led, to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
The General Counsel urges that the facts in this case warrant and justify
the recommendation by the undersigned of a cease and desist order prohibiting
the Respondent Union and its agents from engaging in unfair labor practices,
as found herein, everywhere within its geographical jurisdiction. In the West
Kentucky Coal Company case, supra, the Board, after finding that the Union
had engaged in mass invasions of six mines within the space of 2 days and the
fact that the Union planned to apply the same techniques to all nonunion mines
within its organizing jurisdiction, declared that "to limit the order to the
employees of the 6 charging parties would be to disregard not only the danger
of future commissions of unlawful acts to be anticipated . . . but the openly
expressed threat of the eirtension of these violations to other employees." (Em-
phasis supplied.) Accordingly, the Board enlarged the scope of the usual
cease and desist order so that it applied to all employees engaged in mining
operations in the area subject to the Union's organizing jurisdiction. However,
in a subsequent case, Bitner Fuel Company, supra, the Board refused to enter
a similar order against a sister district because the Union's illegal activities
were limited to a single mine operator and there was no evidence to indicate
that it planned to apply the same measures to all nonunion mines within its
jurisdiction. While, as found above, the Union and its agents did engage in
mass invasions of the mines operated by the charging parties and interfere
with the trucking operations of Gaiser, the evidence fails to clearly establish
any planned program to apply these techniques to all nonunion operators within
its territorial jurisdiction. The undersigned therefore concludes that the evi-
dence herein does warrant the entry of an order in the terms as urged by the
General Counsel, and it so recommended.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Mine Workers, District 2, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. Mercury Mining and Construction Corporation, John Ziros, doing business
as Ziros Company, Alfred McCullough, Richard E. Jamieson, and Donald D.
Coven, partners, doing business as Pine Hill Coal Company, and R. H. Gaiser
are engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
3. The Respondent, Mercury Mining and Construction Corporation, by inter-
fering with , restraining, and coercing its employees in the exercise of the
0
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed in Section 7 of the Act, has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The Respondent, United Mine Workers of America, District 2, and Re-
spondents Clarence Mosier, Owen Slagle, Joseph Feist, and John Kosik, as
agents of the Respondent Union, by restraining and coercing the employees
of Mercury, Ziros, Pine Hill, and Gaiser in the exercise of the rights guaranteed
in Section 7 of the Act, have engaged in, and are engaging in, unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
VALLEY MOTOR COMPANY and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS, LOCAL LODGE 1506, AFL, PETITIONER. Case No. 36-RC-
640. November 13, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Patrick H. Walker,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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-mem-
ber panel [Chairman Herzog and Members Reynolds and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer corporation is engaged in Salem, Oregon, in the
business of buying and selling Ford automobiles, trucks parts, ac-
cessories, and equipment. It operates under a franchise agreement
with the Ford Motor Company designating the Employer as the ex-
clusive Ford dealer in the Salem area. The Employer's business also
embraces the repair and servicing of new and used automobiles and
trucks. During the last fiscal year, the Employer's purchases ex-
ceeded one million dollars, of which approximately 90 percent was
shipped to the Employer from points outside the State of Oregon. In
the same period, the Employer's sales also exceeded $1,000,000 of
which $50,000 represented sales and deliveries to persons outside
Oregon. Upon these facts we find that the Employer is engaged
in commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction in this case.'
2. The labor organizations involved claim to represent certain en1-
ployees of the Employer.2
'Barter Bros., 91 NLRB 1480; Stanislaus Implement and Hardware Co., Ltd., 91 NLRR
618.
' General Teamsters , Local 324, AFL, hereinafter called the Intervenor, was permitted
to intervene at the hearing.
96 NLRB No. 217.