March 17, 1971
NATIONAL LABOR RELATIONS BOARD, PETITIONER
DISTRICT 12, UNITED MINE WORKERS OF AMERICA ET AL, RESPONDENTS.
Before HASTINGS, Senior Circuit Judge, and CUMMINGS and KERNER, Circuit Judges.
Per Curiam: The National Labor Relations Board is seeking enforcement of an order requiring District 12, United Mine Workers of America ("District 12"), and the United Mine Workers of America ("UMW") to cease threatening to picket J. O. Lively Construction Company and to cease picketing Kelly Railroad Contractors, Inc. to force their employees to select District 12 and UMW as their representatives. The Board's order requires respondents to refund initiation fees and dues to Lively's employees; other customary relief is also provided. 177 NLRB No. 27.
Threats to Picket Lively
The Board found that Lively, with head-quarters in Beckley, West Virginia, and International Union of District 50, United Mine Workers of America ("District 50"),*fn1 signed an agreement on April 2, 1968, binding Lively to the terms of an industry-wide collective bargaining contract between District 50 and Coal Mine Construction Contractors Association, Inc. from June 1, 1967, to May 31, 1970. In the summer of 1968, Truax-Traer Coal Company contracted with Lively to build a coal tipple at Norris, Illinois. Truax-Traer's employees are represented by Local 7110 of UMW. On August 8, 1968, James Smith, a field superintendent for Lively, and several of its employees, all members of District 50, arrived in Norris, Illinois, to begin construction of the tipple. On the following day, Local 7110 president Floyd A. Hobbs met with Smith and three Lively employees near the construction site and stated that the employees would have to join the UMW to work on the tipple. Smith replied that they were already members of District 50 but Hobbs insisted they become UMW members.
On August 13, Hobbs and Edward Lamm (a board member of subdistrict 2 of District 12 and formerly an international representative of UMW) met Smith and four Lively employees near the jobsite. Lamm told them not to work until they got straightened out with UMW. Either Hobbs or Lamm denied Smith permission to move Lively's office trailer to the jobsite.
Two days later, Smith told Hobbs that he needed Lively's equipment at the jobsite, and Hobbs stated, "If you move it, I will shut the job down." On August 20, Lamm, accompanied by three UMW representatives, told Smith that Joe Shannon, acting president of District 12 and an international representative of UMW, agreed by telephone that the Lively employees would have to join UMW in order to work on the tipple. The next day, Hobbs protested to Smith about his having moved the Lively office trailer to the jobsite, and Hobbs said that he was going to shut the job down.
Fifteen minutes later, Hobbs, Lamm and nine others visited the jobsite, and Lamm told Smith that he wanted to talk to the Lively employees in order to sign them with the UMW. Hobbs said if he had to return to the job, he would bring more men. Two days later when the Lively employees attended a meeting called by Hobbs and Lamm, they signed applications for UMW membership and paid their initiation fees and dues. Following the weekend, Hobbs and Lamm told Smith he could proceed with the tipple construction, and the employees thereafter continued to work without interference or hindrance.
The Board concluded that respondents' picketing threats prevented any Lively employees from working on the tipple until after they agreed to join UMW, and that these threats violated Section 8(b)(7)(A) of the Act.*fn2 The Board also concluded that respondents' picketing threats succeeded in illegally coercing Lively employees in the exercise of rights guaranteed by Section 7, thus constituting an unfair labor practice under Section 8(b)(1)(A).*fn3
As to Lively, respondents first urge that no threats to picket its tipple operation were shown because they never threatened any "public communication of ideas" within the ordinary meaning of picketing. However, Local 7110 president Hobbs told James Smith, Lively field superintendent, "If you move it, I will shut the job down." This threat was reiterated the next day when Hobbs visited the jobsite along with Lamm and nine others. At that time, Hobbs said that he would bring more men if he had to return to the jobsite. If these eleven men had carried out their threats and posted personnel at the jobsite to induce Lively employees to join the UMW, that would clearly constitute one type of picketing. National Labor Relations Board v. Local 182, International Brotherhood of Teamsters , 314 F.2d 53, 57-58 (2d Cir. 1963); Duffy, "Picketing by an Uncertified Union: The New Section 8(b)(7)," 69 Yale L.J. 1393, 1397-1398 (1960). In our view, their previous actions constituted threats to picket Lively.
Respondents also contend that the Board erred in ruling that the contract between Lively and District 50 covered work at Norris, Illinois. However, that contract bound Lively to the terms of a prior contract between the Coal Mine Construction Contractors Association, Inc. and District 50. In turn, as the Board noted, Article I of the earlier contract "specially covers construction work in all of the United States," and another article contemplated that employees would have to travel more than 50 miles from one project to another. We, therefore, reject respondents' contention that the contract with District 50 was inapplicable to the tipple work at Norris, Illinois. We also reject respondents' contention that the contract was inapplicable to Lively employees living in the Norris, Illinois, area, for it covered "all construction employees * * * working on construction jobs" (excepting only certain named positions).
Respondents next argue that there was no violation of Section 8(b)(1)(A) of the Act because "Lively employees are members of both District 50 and the UMW." This overlooks the fact that the Lively employees did not join the UMW until the picketing threats were exerted. In any event, the Board was justified in concluding that there was a violation of Section 8(b)(1)(A), for the test thereunder is whether the misconduct may reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights. Local 542, International Union of Operating Engineers v. National Labor Relations Board , 328 F.2d 850, 852-853 (3d Cir. 1964) certiorari denied, 379 U.S. 826. Here the improprieties not only tended to coerce employees, but actually accomplished respondents' unlawful objectives.
Picketing of Kelly
In the summer of 1968, Kelly contracted with the Chicago, Burlington & Quincy Railroad to lay a 5-mile spur line between its main tracks and the Norris, Illinois, site of the tipple being built by Lively for Truax-Traer. Kelly's employees were then represented by three different unions, but not by respondents. On August 22, after Kelly had begun laying that segment of the spur inside Truax-Traer's premises, Lamm told Mac Denny, Kelly's superintendent at the job, that no work would go on unless Kelly signed a contract with the UMW and unless all its employees joined that union. Lamm said that he would have a thousand men there the next morning to accomplish this unless Denny complied. Later that day, Lamm threatened to have 250 men on the jobsite on August 26 if Denny refused to sign. Lamm renewed his demands on August 23.
On August 26, 100 cars lined both sides of the road leading to the jobsite, and 200 men, including Lamm and Hobbs, were standing around in the vicinity. Soon thereafter, Lamm, Hobbs and a few other men who were members of Hobbs' committee, met with Mr. Kelly, the owner of the company. Kelly said he would shut down the job to avoid having anyone hurt, and Hobbs replied, "Yes, I guess we decided that for you this morning." Hobbs refused any permission to move some Kelly equipment from this construction site to another job.
Two days later, Denny saw 100 men, including Lamm and Hobbs, standing around the jobsite, and Hobbs reiterated his refusal to let Denny move Kelly equipment from the jobsite. On September 4, however, Hobbs did permit Kelly employees to remove some equipment, but no track was laid in the Truax-Traer property since August 26. Large numbers of men continued to assemble at the Kelly jobsite until enjoined by the United States District Court for the Southern District of Illinois on September 10, 1968, upon the Board's request.
The Board concluded that respondents' picketing at the Kelly jobsite was to prevent Kelly and its employees from working until they joined UMW and until Kelly signed a contract with it, and that this picketing violated Section 8(b)(7)(C) of the Act.*fn4 The Board also concluded that this picketing succeeded in illegally coercing Kelly employees in the exercise of rights guaranteed in Section 7 of the Act, thus violating Section 8(b)(1)(A).*fn5
Respondents contend that no picketing was involved because respondents did not display signs or distribute leaflets or march to and fro with banners. As we have already held with respect to the threats to picket Lively, the scope of "picket" within Section 8(b)(7) is not so narrowly drawn. Here respondents' posting of massed individuals at Kelly's jobsite clearly communicated respondents' intent to prevent Kelly's employees from working and caused Kelly to close the job down. Such action was clearly picketing within the scope of Section 8(b)(7)(C).*fn6
It is also clear that the picketing of Kelly coerced its employees in the exercise of their Section 7 rights, thus violating Section 8(b)(1)(A).*fn7 The massing of 100 to 200 mine workers during this period was sufficiently coercive to constitute an unfair labor practice, for it prevented the Kelly employees from exercising their statutory rights.
Agency of Lamm and Hobbs
Respondents state that their agents were not involved in these unfair labor practices. Lamm, however, admitted that he was a District 12 board member since 1963 and previously had been an international representative of the UMW. Since District 12 is a component division of the UMW, respondents cannot deny responsibility for Lamm's unlawful conduct. Moreover, three UMW representatives were with Lamm during his August 20 discussion with Lively, and Lamm telephoned Joe Shannon, a UMW international board member, for instructions during that meeting. Hobbs was president of Local 7110 of the UMW. He testified that Local 7110 and the international UMW were "all United Mine Workers." Lamm did not disavow any of Hobbs' activities. Accordingly, the Board was justified in concluding that both Lamm and Hobbs were acting as agents for respondents, so that their activities were attributable to respondents. National Labor Relations Board v. International Longshoremen's and Warehousemen's Union, Local 12 , 378 F.2d 125, 128-130 (9th Cir. 1967), certiorari denied , 389 U.S. 846.
Scope of Board's Order
The order provides that respondents must refund to the Lively employees the initiation fees and dues they paid to respondents when coerced into joining the UMW, together with interest at 6 per cent. It was unnecessary for the Board to secure testimony from the Lively employees that they involuntarily paid dues to UMW, for that was a permissible inference from the coercion exerted upon them. Under Section 10(c) of the Act (29 U.S.C. § 160(c)), the Board has the power to fashion this type of remedial order, and it has commonly done so in similar cases. See National Labor Relations Board v. Local 404, Etc ., 205 F.2d 99, 104 (1st Cir. 1953); National Labor Relations Board v. Local 294, Teamsters , 279 F.2d 83, 87-88 (2d Cir. 1960); National Labor Relations Board v. Television and Radio, etc. Employees, Local 804 , 315 F.2d 398, 402 (3d Cir. 1963); National Labor Relations Board v. H.K. Ferguson Co ., 337 F.2d 205, 209 (5th Cir. 1964), certiorari denied, 380 U.S. 912; National Labor Relations Board v. Teamsters and Allied Workers, Hawaii Local 996 , 313 F.2d 655, 661 (9th Cir. 1963); National Labor Relations Board v. General Drivers, Local 886 , 264 F.2d 21, 23 (10th Cir. 1959). In order to make the Lively employees whole, it was also appropriate for the Board to provide for the payment of interest. Winn-Dixie Stores, Inc. v. National Labor Relations Board , 413 F.2d 1008, 1010 (5th Cir. 1969) (per curiam ).
The Board's order is enforced in full.