NLRB v. United Mine Workers of America

• Decision Date: 13 July 1970
• Docket Number: No. 18056.,18056.
• Citation: 429 F.2d 141
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED MINE WORKERS OF AMERICA, United Mine Workers of America, District 2, and United Mine Workers of America, Local 6796, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

429 F.2d 141 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED MINE WORKERS OF AMERICA, United Mine Workers of America, District 2, and United Mine Workers of America, Local 6796, Respondents.

No. 18056.

United States Court of Appeals, Third Circuit.

Argued February 19, 1970.

Decided July 13, 1970.

Douglas Leslie, Atty., N.L.R.B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul J. Spielberg, Atty., N.L.R.B., Washington, D. C., on the brief) for petitioner.

Francis J. Leahey, Jr., Englehart, Creany, Englehart & Leahey, Ebensburg, Pa. (Eugene A. Creaney, Ebensburg, Pa., on the brief) for respondents.

Before KALODNER and VAN DUSEN, Circuit Judges, and FULLAM, District Judge.

OPINION OF THE COURT

KALODNER, Circuit Judge.

The National Labor Relations Board ("Board"), pursuant to Section 10(e) of the National Labor Relations Act, 29 U. S.C. § 160(e), seeks enforcement of its November 8, 1968, Order¹ issued against respondents United Mine Workers of America ("UMW"), United Mine Workers of America, District 2 ("District 2"), and United Mine Workers of America, Local 6796 ("Local 6796").² The Board found that respondents UMW, District 2 and Local 6796 had violated Section 8(b) (1) (A) of the Act, 29 U.S.C. § 158(b) (1) (A), by restraining and coercing with acts and threats of violence, members of the Southern Labor Union ("SLU") in Home, Pennsylvania, on December 17, 1967. The Board further found that respondents UMW and District 2 had violated Section 8(b) (1) (A) of the Act by restraining and coercing with acts and threats of violence, employees of the Mears Coal Company at its plant in Dixonville, Pennsylvania, on January 30, 1968.

The facts critical to our disposition are as follows:

The area membership of the SLU is comprised of seven local unions which have collective bargaining agreements with the Mears Coal Company, and six other area coal companies.³ SLU called a membership meeting for Sunday, December 17, 1967, at the Consolidated School building in Home, Pennsylvania. On that day, respondent Local 6796 held a Christmas party in Clymer, Pennsylvania. Yackuboskey, a member of Local 6796, later testified at the Board hearing⁴ that Simpson, president of Local 6796, made a motion during the course of the party to go to the Consolidated School "to talk to men who were non-members of the SLU * * *." The motion was seconded and approved, and Yackuboskey estimated that "around 30 and maybe a few more than that" of the members then left for the school.

When Plavi, vice president of SLU Local 253, arrived at the Consolidated School just prior to the meeting to ready the building, he observed, "around 100 cars, and between approximately 400 and 500 United Mine Workers" collected about the school grounds. Plavi entered the school, but soon became apprehensive and left to contact another SLU official. While at the school, Plavi recognized Simpson and Yackuboskey among the men gathered. As he was leaving Kanapic, whom Plavi understood to be a UMW Local president, told him, "Joe, you better not have this meeting."⁵ When Plavi replied that he intended to hold the meeting, someone in the group responded, "God-damned if you will."

Following Plavi's departure, other members of the SLU began to arrive, among them Rice, president of SLU Local 245. While Rice waited in his automobile for Plavi to open the school door, he was approached by two men whom he recognized as District 2 organizers. They told him that the UMW was going to be the only union in the area.

When Plavi returned to the school a short time later, some 20 SLU members had arrived. Plavi left his automobile, taking with him a tape recorder, and ascended the steps leading to the school entrance. As he did so, Simpson shouted, "We will run you back to Tennessee with the rest of the bunch." Several UMW members standing at the foot of the steps said, "Don't let them go in;" then, "Oh, let them go in they aren't going to have a meeting anyhow." Others in the crowd shouted "scab." Plavi unlocked the school door, and eight or nine SLU members entered. Plavi, however, remained at the top of the steps with the tape recorder, and said, "If anyone here wants to make a statement, I have a tape recorder here. I will be glad to take your statement."

Present at this time were DeGretto, an international representative of the UMW and director of organization of District 2, Telk, a representative of District 2, and Simpson.⁶ DeGretto stood several steps below Plavi on the stairway.

Some 12 or more men began crowding and "pawing" Plavi, and one unplugged the tape recorder. Two men then seized Plavi and held him while a third struck him violently on the back of his head, knocking him to the ground. No one attempted to prevent or discourage the assault, nor was any effort made to disperse the crowd at that time. Following the assault, the man who struck Plavi said to the SLU members who remained inside the school, "There is your follower. Does anybody want to step out and take it?"

When Plavi was able to stand, he told the SLU members to leave, and that no meeting would be held. Thereupon, Plavi and the other members of the SLU left the school. Plavi was hospitalized for a total of 16 days as a result of the assault.

The events surrounding the January 30, 1968, Mears Coal Company incident are substantially the following. The Mears Company operates a coal processing plant in Dixonville, Pennsylvania. Trucks delivering coal to it must travel on State Route 223 to its intersection with Township Road. The Mears Company scale house, used in weighing the incoming coal, is located on Township Road, about 100 feet from its intersection with Route 223. On Route 223, about 150 feet from the intersection, is an abandoned office building, which had been damaged two weeks before by a dynamite explosion.

Mears Company management had received warnings from the State Police to expect "an accumulation" of men around the Mears Company plant on January 29 or 30. Shortly after 8 a. m. on January 30, a crowd of between 75 and 100 men gathered at the intersection of Route 223 and Township Road, and then advanced along Township Road, effectively blocking it. Among the crowd was Telk, a representative and agent of respondent District 2. Those in the crowd shouted: "You sons-of-bitches brought the Southern Labor Union in and we are going to send them back to Tennessee;" "We will blow the place off the map;" and "You will either become United Mine Workers or we will get even." Some of the crowd eventually entered upon Mears Company property, and approximately 25 of its number "surrounded" the scale house.

Charles Mears and Earl Bence, partners in the Mears Company, approached the crowd, and Mears asked to talk with a spokesman. The crowd selected Telk, and Mears, Bence, Telk and two other men whom Telk introduced as UMW Local presidents, went into the scale house.

Mears began by asking what the men wanted, to which Telk replied by questioning what Mears was going to do about the SLU. When Mears explained that his company had a contract with the SLU, Telk said, "You hear those men out there hollering. This is not going to satisfy them. They want you to get rid of the Southern Labor Union." Demanding that the Mears Company become "members" of the UMW, Telk added: "These men are old style coal miners." One of the UMW Local presidents stated that they would resort to any means to send the SLU back to Tennessee, and that: "You are not going to shut down temporarily, you are going to shut down permanently until you become a member of the United Mine Workers." Two employees of the Mears Company were in the small scale house at this time and presumably could overhear the conversation.

The discussion ended, and as the men left the scale house, someone noticed a rifle in the back seat of Mears' automobile, which was parked in front of the scale house. Some of the crowd rocked the car and tried to pry open its doors. A sheriff who was present dispersed them. Someone then called attention to the armed guards maintained by the Mears Company since January 17, 1968, when its old office building was dynamited. Some in the crowd shouted that they would get guns and come back to fight. Telk then ordered the men to leave and they complied. Mears directed the approximately 15 employees at the plant to leave the property, which they did. Mears also notified suppliers of coal to the Company not to attempt deliveries that day.

When Bence, Mears' partner, returned to their plant less than two hours later, he observed approximately 400 men standing on both sides of Route 223, as well as approximately 50 to 75 people standing on Township Road, again blocking it. Bence's progress along Route 223 was impeded by the crowd. As he drove past the plant, he noticed some of the crowd setting fire to the dynamited office building.

Section 8(b) (1) (A) of the Act, upon which the Board relies, provides:

"(b) It shall be an unfair labor practice for a labor organization or its agents —

"(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7. * * *"

In material part, Section 7 of the Act states:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, and shall also have the right to refrain from any or all such activities. * * *"

The record affords ample evidence that all three respondents had violated Section 8(b) (1) (A) with respect to the SLU meeting scheduled for December 17, 1967, and that respondents UMW and District 2 had further acted in violation of the Act with respect to the mass picketing and other incidents at the Mears Company on January 30,...