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Progressive Mine Workers of America v. National Labor Relations Board.

decided.: January 31, 1951.


Author: Major

Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit Judges.

MAJOR, Chief Judge.

Petitioners are here to review and set aside an order of the respondent National Labor Relations Board (hereinafter referred to as the Board), issued on May 22, 1950, pursuant to Sec. 10(c) of the National Labor Relations Act as amended, 61 Stat. 136, 29 U.S.C.A. ยง 151 et seq., hereinafter called the Act. The Board in its answer has requested enforcement of its order.

Petitioner Progressive Mine Workers of America is an international Union, divided into a number of districts, the largest of which is petitioner District No. 1. In this district is included petitioner Local Union No. 13, which is the labor organization directly involved in this proceeding. (All of such petitioners will sometimes be referred to as the Unions.) Petitioner Randolph Corporation (hereinafter referred to as the company) was on March 24 and 25, 1948, the dates mainly material to this proceeding, engaged in the mining of coal at Tilden, Illinois. Its employees were members of Local No. 13, which had been designated as the bargaining agent and with which the company had a contract due to expire June 30, 1948. Respondents are the Board and two of the company's employees, Charles Chandler and George W. Smith, who were members of Local No. 13. The unfair labor practices alleged and found against the Unions and the company relate to these two individuals.

The Trial Examiner, after hearing, in his intermediate report concluded that the Unions by restraining and coercing employees Chandler and Smith had engaged in unfair labor practices within the meaning of Sec. 8(b)(1)(A) of the Act. The Examiner concluded that the company had not engaged in unfair labor practices within the meaning of Sec. 8(a)(3) and (1) of the Act, and consequently that the Unions had not engaged in unfair practices within the meaning of Sec. 8(b)(2). The Examiner recommended that the complaint be dismissed as to the company, and the Unions exonerated as to the 8(b)(2) violation.

Upon exceptions to the Examiner's report, the Board made its findings and concluded, contrary to the Trial Examiner, that the "Respondent Company constructively discharged employees Chandler and Smith, in violation of Section 8(a)(3) and, derivatively, 8(a)(1) of the Act." And as to the Unions, the Board concluded, "As the conduct of the Respondent Unions impelled the discriminatory discharges effected by the Employer, it is clear, and we find, that the Respondent Unions thereby violated Section 8(b)(2) and 8(b)(1)(A) of the Act." The Board also found, as did the Examiner, that the Unions violated Sec. 8(b)(1)(A), and consequently Sec. 7, because of certain threats attributable to the Unions or their agents calculated to restrain and coerce the two employees, Chandler and Smith. Of the five-member Board, two members (including the chairman), like the Trial Examiner, exonerated the Unions from a violation of 8(b)(2), based upon the premise that the Unions had impelled the company to discharge Chandler and Smith, and consequently exonerated the company from a violation of 8(a)(3). As the order affected the Unions in other respects, the Board was unanimous.

In the beginning, we note the Unions' complaint directed at certain procedural aspects of the case. The Unions contend that the charge contained in the complaint was not made with the Board within six months from the time the alleged unfair labor practices occurred, as required by Sec. 10(b) of the Act. The fact is that the charge filed with the Board by Chandler and Smith was within the six-month period. The argument, however, is that the charge contained in the complaint was different from that made to the Board and, therefore, was not made within the limitation period fixed by the statute. An examination of the charge and the complaint discloses that while the latter was more formal, definite and detailed, it contains substantially the same charge as that made to the Board by Chandler and Smith, and we think the latter was sufficient as a basis for the complaint. It follows that the limitation provision relied upon is not controlling. Complaint is also made by the Unions that the rule invoked by the Trial Examiner for the exclusion of witnesses during the hearing was improperly applied inasmuch as Chandler and Smith were permitted to remain at the hearing while the Unions' officials were excluded. However, the Examiner permitted one representative of the Unions to be present. No showing is made that the Unions were prejudiced by the procedure and we may assume they were not. Moreover, we think the matter was largely within the discretion of the Trial Examiner and, in any event, the action complained of does not affect the legality of the proceeding.

The findings of the Trial Examiner, approved by the Board in support of the charge that the Unions violated Sec. 8(b)(1)(A) and consequently Sec. 7 of the Act, are as follows:

"Local Union President Todd's statements of March 24, 1948, at the homes of Chandler and Smith, when, according to their credited testimony, he said: 'I'm telling you as a friend not to come out to work in the morning. You fellows are stirring up a hornet's nest. There will be trouble out there: guns, knives, and blackjacks * * * I don't know what all * * * I wouldn't go out if I was you.'

"The threats by pit committeemen Owens and Ramsey to Smith and Chandler at the home of Smith on March 25, where they said: '* * * get away from that mine because we're not going to work with you any more * * *. There will be trouble if you come over them [there].'

"Tidwell's statement at Smith's home 'that the Progressive Mine over there is going to stay progressive as long as I am there, if it takes bloodshed to do it.'

"Board Member Galli's statement to Chandler that the latter 'ain't making these boys no report [about his conference with UMW agent] out here at the mine', and

'Pit committeeman Ramsey's or Owens' statement to Chandler ordering him to change back into street clothes 'because he wasn't going to work there * * * the men wouldn't work with him or Smith.'"

We think it unnecessary to describe further the official position held by the persons mentioned in these findings because it is admitted that they were all officials of one or the other of the Unions involved and no question is raised but that they were the authorized agents of such Unions. The Board, as did the Trial Examiner, relies almost exclusively upon the testimony of Chandler and Smith in support of the findings thus made. The Union officials who were found to have made these statements did not deny meetings and conversations with Chandler and Smith at the various times indicated. True, their testimony presents quite a different picture as to what was said on those occasions. We see no purpose, however, in entering a discussion as to the numerous contradictions between the testimony of the officials of the Unions and that of Chandler and Smith. It was the province of the Examiner, and later the Board, to weigh the testimony and decide which version to accept. And it cannot be said that the testimony of Chandler and ...

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