Mine Workers District 29

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1155 (N.L.R.B. 1992)

1155
308 NLRB No. 171
MINE WORKERS DISTRICT 29
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Until the start of the hearing, the companies making up the Em-
ployer were named as Respondents in the amended consolidated
complaint. At the start of the hearing, the General Counsel moved
to sever them from the case, stating that the Regional Director had
received a signed settlement agreement from them. The judge grant-
ed the General Counsel’s motion.
3 Contrary to the Respondent’s contention, the three other men
were named in the record. Webb identified them as Clay Mullins,
Harless Adkins, and Roger Ryan.
4 The parties referred to ‘‘the BCOA,’’ but did not specifically
identify the words represented by the acronym. Webb testified that
a coal miner (i.e., a statutory employee) would not sign the BCOA
to become a member. Rather an owner-operator of a truck would
sign the BCOA ‘‘to join the Union’’ and, if the owner-operator had
employees, his employees would be covered by the contract. Webb
did not explain why he first approached the drivers with the BCOA
rather than with individual applications for membership.
5 Webb testified at trial that Jeff Paynter stood with a group of em-
ployees around him ‘‘15, 20, 30 feet or so’’ from Webb. Webb also
acknowledged that he had stated in his affidavit that Paynter stood
between 10 and 15 feet away. Driver Shrewsberry testified that
Webb was 2 feet away when Shrewsberry was threatened with dis-
charge. The judge characterized the distance as ‘‘a few feet.’’ The
Continued
United Mine Workers of America, District 29 and
Frank Angle and Eddie Shrewsberry. Cases 9–
CB–7461–1 and 9–CB–7461–2
September 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On December 5, 1990, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied below.
The judge found that the Respondent violated Sec-
tion 8(b)(1)(A) in September and October 1989. The
Respondent excepts, arguing, inter alia, that it had in-
sufficient notice that the conduct the judge found un-
lawful would be litigated. We reject the Respondent’s
due-process argument regarding the late October inci-
dent and find merit in the Respondent’s due-process
argument regarding the September incidents for the
following reasons.
I. THE FACTS
The Paynter and Leese families own the Employer,
a single integrated enterprise with multiple company
names.2 Deron Paynter and Jeff Paynter are officers
and managers of the Employer. The Employer’s sole
source of business is a contract with Maben Energy,
whose employees are represented by the United Mine
Workers of America (UMWA), Local 5955. Pursuant
to that contract, the Employer’s 25 drivers haul coal a
short distance between the ‘‘coal pile’’ at Maben’s
Stoney no. 5 mine to Maben’s East Gulf preparation
plant.
The president of the UMWA Local representing
Maben’s employees complained to Bobby Webb, a
member of the Respondent’s executive board, about
the Employer’s use of nonunion drivers. In response,
on September 17, 1989, Webb chose Local 1895 Presi-
dent Joseph Carter, and three other union members3 to
accompany Webb, and confronted the Employer’s driv-
ers individually as they stopped at the preparation
plant scales. Webb asked each driver if he was a
UMWA member and gave each a copy of the BCOA4
and a dues-checkoff authorization. Three of the drivers
were told by one of the men accompanying Webb that
they had to sign the contract in order to haul into the
unionized plant. Another told driver Roger Altizer
[I]f you don’t join, we’ll stop you from hauling.
Maybe we won’t stop you here, and maybe not up
at the coal pile. But we can stop you. There’s a
lot of bushes between here and the coal pile.
A few days later, Webb, Carter, and the same three
union members stopped the drivers and discussed the
documents Webb had given them. Webb informed the
drivers that they would pay a $200 initiation fee and
$40 per month in dues. In response to their questions
about what they would get in return, Webb answered
that the main benefit was ‘‘to be proud to be a mem-
ber of the United Mineworkers,’’ because, as owner-
operators, they would not receive other benefits such
as health insurance or pensions.
In late October, Webb and Carter, without the three
men who had accompanied them in September, trav-
eled to Maben’s coal pile no. 5. They took about 150
copies of the BCOA for the 25 drivers to sign (a mini-
mum of 5 copies for each driver), although the drivers
had not expressed interest in joining the UMWA. Em-
ployer President Jeff Paynter was also present. He told
the arriving drivers that they would be discharged that
day if they did not join the Union. After Paynter’s
threat, the employees went to Webb and Carter and
signed the proffered documents on behalf of nonexist-
ent companies. The judge found that Webb heard
Paynter’s threat to discharge employees.5
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
judge discredited Webb’s testimony that he did not hear Paynter’s
threat to the drivers.
6 Important to the judge’s conclusion that the Respondent partici-
pated in a scheme to coerce the employees into joining the UMWA
was his finding that, before the drivers signed contracts with Webb,
Webb heard Jeff Paynter’s threats to fire the drivers unless they
joined the Union. The judge further inferred that either (1) Webb
and Jeff Paynter agreed to meet at the coal pile for the purpose of
coercing the drivers or (2) Paynter told Webb he would be at the
coal pile at a specific date and time for the purpose of telling drivers
that they had to join the UMWA. We find it unnecessary to adopt
the judge’s factual inferences; however, because even if it was mere-
ly a coincidence that Webb and Paynter were simultaneously at the
coal pile, the Respondent violated Sec. 8(b)(1)(A) by knowingly ac-
cepting the benefits of Paynter’s threats to discharge the drivers if
they did not join the Union. We have modified the judge’s Order
accordingly.
7 The Respondent notes that the complaint alleged only that Webb:
(1) threatened bodily harm to an employee and (2) threatened to
cause employees to lose their employment.
8 Monroe Feed Store, 112 NLRB 1336 (1955); Crown Zellerbach
Corp., 225 NLRB 911 (1976); Meilman Food Industries, 234 NLRB
698 (1978); and Baytown Sun, 255 NLRB 154 (1981). American
Boiler Mfrs. Assn. v. NLRB, 366 F.2d 815, 821 (8th Cir. 1966);
Facet Enterprises v. NLRB, 907 F.2d 963, 972–975 (10th Cir. 1990).
To the same effect: NLRB v. American Tube Bending, 205 F.2d 45,
46–47 (2d Cir. 1953) (Judge Learned Hand); Owens-Corning Fiber-
glas v. NLRB, 407 F.2d 1357, 1361 (4th Cir. 1969); and Alexander’s
Restaurant & Lounge v. NLRB, 586 F.2d 1300 (9th Cir. 1978).
9 The original charge against the Respondent, filed November 2,
1989, alleged that the Respondent had coerced employees in viola-
tion of Sec. 8(b)(1)(A) on October 25, 1989, by threatening that it
would cause the Employer to terminate the employees if they did not
execute the current BCOA agreement and become members of the
Union. On October 25, the Employer was charged with violating
II. THE JUDGE’S DECISION
As more fully discussed in his decision, the judge
found that Webb, Carter, and the three other men that
Webb chose to accompany him in his September re-
cruitment of the Employer’s drivers were agents of the
Respondent. He also found the September ‘‘there’s a
lot of bushes’’ threat, and statements that the drivers
had to belong to the UMWA to haul into Maben’s fa-
cility, violated Section 8(b)(1)(A) in the circumstances
of the case. The judge further found that, in late Octo-
ber 1989, the Respondent participated in a scheme
with the Employer to coerce employees into joining
the UMWA in violation of Section 8(b)(1)(A) of the
Act.6
III. THE LATE OCTOBER INCIDENT
A. The Respondent’s Exception
The Respondent excepts to the finding that it vio-
lated Section 8(b)(1)(A) ‘‘through acceptance of un-
lawful aid and assistance from the respondent employ-
ers.’’ The Respondent acknowledges that the complaint
alleged that the Employer unlawfully aided the Re-
spondent but stresses that the complaint did not allege
that the Respondent unlawfully accepted the Employ-
er’s aid.7 The Respondent cites NLRB v. Quality
C.A.T.V., Inc., 824 F.2d 542 (7th Cir. 1987) (discussed
infra), in which the court refused to enforce a Board
order, finding that the respondents had insufficient no-
tice of violations found by the Board. The Respondent
asserts that it litigated only the complaint’s narrow al-
legation that Webb uttered threats—the only aspect of
the complaint directed to the Respondent.
B. Analysis
The Board and the courts have long held that the
Board is entitled, if not affirmatively obligated, to
make findings on fully litigated unfair labor practices.8
As the Board stated in Monroe Feed Store, supra at
1337:
It is well established that when an issue relating
to the subject matter of a complaint is fully liti-
gated at a hearing, the [judge] and the Board are
expected to pass upon it even though it is not spe-
cifically alleged to be an unfair labor practice in
the complaint.
Similarly, the Fourth Circuit stated in Owens-Corning
Fiberglas v. NLRB, supra at 1361 (quoting American
Boiler Mfrs. Assn. v. NLRB, supra at 821):
The ‘‘[c]ourts as well as the National Labor Rela-
tions Board have held that a material issue which
has been fairly tried by the parties should be de-
cided by the Board regardless of whether it has
been specifically pleaded.’’
The Fourth Circuit noted that this rule originates in the
Board’s policy of applying, so far as practicable, the
Federal Rules of Civil Procedure, and quoted Rule
15(b) (which remains the same today, Fed.R.Civ.P.
15(b)):
When issues not raised by the pleadings are tried
by express or implied consent of the parties, they
shall be treated in all respects as if they had been
raised in the pleadings.
Contrary to the Respondent’s claim that it defended
against only a very narrow complaint allegation of
threats uttered by Webb, the record establishes that the
Respondent intended to and fully litigated the issue of
whether it knowingly accepted the Employer’s unlaw-
ful assistance.
The Respondent first revealed its intention to litigate
the issue of acceptance of unlawful employer aid in its
answer to the amended consolidated complaint. The
amended consolidated complaint underlying this case
was issued against both the Respondent and the Em-
ployer, and involved allegations against each that were
integrated. The cases against the Employer and the Re-
spondent were consolidated at the complaint stage.9
1157MINE WORKERS DISTRICT 29
Sec. 8(a)(2) by threatening employees with termination, and, in a
separate paragraph, ‘‘by assisting [the Union] in its attempt to orga-
nize the employees.’’
10 This paragraph of the Respondent’s answer was in response to
complaint pars. 12, 13, 14, and 15, which concluded, based on ear-
lier factual allegations, that the Employer had violated Sec. 8(a)(1),
(2), (3), and (4).
11 The fact that the Respondent intended to and did litigate the Re-
spondent’s conduct that we now find unlawful distinguishes this case
from the case on which it relies, Quality C.A.T.V., supra. There the
Seventh Circuit held that the respondent neither litigated nor had no-
tice of the issue on which it was found to have violated the Act.
Paragraph 10 of the amended consolidated complaint
alleged that on or about October 27, 1989, Bobby
Webb, in the presence of Jeff Paynter, (1) ‘‘threatened
to cause bodily harm to an employee,’’ and (2)
‘‘threatened to cause loss of employment to
employees . . . who refused to sign dues check-off
authorization cards for, and collective bargaining
agreements with, Respondent Union.’’ The Respond-
ent’s answer denied paragraph 10. Paragraph 6 of the
complaint alleged that on or about October 27, 1989,
the Employer, through Jeff Paynter and Deron Paynter,
rendered aid, assistance, and support of the Re-
spondent Union by refusing to permit their em-
ployees to work unless those employees executed
dues check-off authorization cards for, and collec-
tive-bargaining agreements with [the UMWA].
Although the allegations concerning the Paynters were
directed literally only against the Employer, the Re-
spondent denied them and subsequently stated in its
answer that it
is not aware of any receipt of unlawful assistance
and support to itself, and denies that it was aware
or knowingly accepted or benefitted from same.10
Thus, from early in the litigation the Respondent treat-
ed the ‘‘unlawful aid to the union’’ as an allegation
against itself.
During the hearing, and after severance of the case
against the Employer, both the General Counsel and
the Respondent continued to treat the question of the
Respondent’s acceptance of unlawful employer aid as
one of the issues being litigated. Thus, the General
Counsel elicited testimony regarding the Employer’s
coercion of the drivers to join the Union within the
hearing of the Respondent’s agent. The evidence plain-
ly supported the inference that the Respondent knew of
and accepted the benefit of the Employer’s coercion.
Before the Respondent began its rebuttal case at the
hearing, its counsel again indicated that the Respond-
ent was litigating the issue of the receipt of the Em-
ployer’s unlawful aid. Replying to a question from the
judge, the Respondent’s counsel stated that the Re-
spondent no longer contested the drivers’ statutory em-
ployee status, which had previously been in issue. He
continued:
The only paragraph in the complaint that we
would still stand upon that deals with the employ-
ers is paragraph six which is the one alleging ren-
dering aid and assistance to the Union.
Subsequently, the Respondent’s attorney elicited
Webb’s denial that he had heard Paynter’s threats to
fire the employees unless they joined the UMWA.
Webb’s denial was unnecessary to defend against the
complaint’s allegation that Webb himself threatened
drivers. If credited, however, the denial would have
constituted a defense to the allegation that the Re-
spondent knowingly accepted the benefit of the Em-
ployer’s unlawful assistance. The Respondent, after
failing to object to the introduction of evidence bearing
on the question whether it knowingly accepted the Em-
ployer’s unlawful assistance, and itself introducing evi-
dence in rebuttal, cannot now be heard to complain
that it did not know that its accepting the Employer’s
unlawful aid was an issue in the case.
Finally, we note that although the Respondent ar-
gues that it was prejudiced by the complaint’s failure
to allege specifically that its acceptance of unlawful
employer aid was unlawful, it has not shown that, were
the specific allegation in the complaint, it would have
litigated this case differently.11
Accordingly, we reject the Respondent’s due-process
argument regarding to the late October violations.
IV. THE SEPTEMBER INCIDENTS
A. The Respondent’s Due-Process Exception
The Respondent also excepts, inter alia, on due-
process grounds to the judge’s finding that it violated
Section 8(b)(1)(A) in mid-September 1989 when men
accompanying Webb threatened to harm one of the
drivers, and told others that they had to belong to the
Union in order to haul into the unionized preparation
plant. As the complaint alleged only that Webb threat-
ened bodily harm and to cause loss of employment in
late October 1989, the Respondent contends, and we
agree, that it was not on notice that the September in-
cidents were in issue as violations of the Act, nor did
it try those issues by consent.
B. Analysis
The complaint alleged that the Respondent, acting
through Executive Board Member Bobby Webb, un-
lawfully threatened employees on or about October 27,
1989. The complaint did not allege the violation found:
that in September unidentified individuals engaged in
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The Respondent, on brief, does not focus on the variance be-
tween the dates set forth in the complaint (i.e., October) and the
dates of the threats (i.e., September). Nonetheless, the Respondent
notes the specificity of the complaint in regard to ‘‘agency, time,
and situation.’’ We thus consider it proper—in weighing whether the
Respondent had fair notice of the allegations against it—to take ac-
count of the discrepancy in the dates.
13 Unlike its actions at trial regarding the October incident, the Re-
spondent did not acknowledge, or proceed in a manner that dem-
onstrated, that it was aware that the September incidents were in
issue. We cannot conclude that the Respondent’s questioning of
Webb about the September incidents establishes that the Respondent
intended to, and did in fact, litigate the September incidents. The Re-
spondent may have sought to present—as background to the October
incident—its version of the September incidents. Indeed, the Re-
spondent questioned Webb only about his (i.e., Webb’s) statements
and actions during the September incidents—not about the alleged
conduct of those accompanying him. Thus, contrary to our dissenting
colleague, the Respondent’s examination of Webb suggests that the
Respondent was not on notice that the conduct of anyone other than
Webb was in issue. The Respondent might well have taken addi-
tional action—including cross-examination of the General Counsel’s
witnesses—had it known that the General Counsel was seeking and
the judge would make an unfair labor practice finding regarding the
conduct of those accompanying Webb during the September inci-
dents. Cf. Pottsville Bleaching Co., 303 NLRB 186 (1991). The
Board there found an unlawful threat that differed to some extent
from that alleged in the complaint. The Board found no due-process
violation, however, because the complaint accurately alleged an un-
lawful threat by a supervisor during a given time period and the re-
spondent cross-examined the General Counsel’s witness and called
its own witness regarding the threat.
unlawful threats or that those individuals were agents
of either Webb or the Respondent.12
Despite the substantial variance between the com-
plaint and the evidence, the General Counsel did not
move to amend the complaint or state explicitly on the
record that the actions of the unidentified individuals
in September 1989 were in issue. In these cir-
cumstances, it is not surprising that the Respondent did
not cross-examine the General’s Counsel’s witnesses
on this issue. Though, in retrospect, it may appear that
the Respondent had an ‘‘opportunity’’ to cross-exam-
ine the witnesses, we are not persuaded that the Re-
spondent knew that there was any reason to cross-ex-
amine the witnesses. It well may be that the Respond-
ent simply did not know, or have reason to know, that
the General Counsel would seek, or that the judge
would make, a finding of a violation of the Act based
on the testimony of these witnesses. In NLRB v. Qual-
ity C.A.T.V., Inc., 824 F.2d 542, 547 (7th Cir. 1987),
the court examined whether due-process concerns pre-
cluded the Board from finding a violation regarding an
unalleged unfair labor practice. The court, in reviewing
whether a party had fair notice of the allegations
against it, stated, inter alia, that:
But the simple presentation of evidence important
to an alternative claim does not satisfy the re-
quirement that any claim at variance from the
complaint be ‘‘fully and fairly litigated’’ in order
for the Board to decide the issue without trans-
gressing [the respondent’s] due process rights.
We view this case with respect to the September in-
cidents as one in which relevant evidence was pre-
sented relating to a possible violation of the Act. Un-
fortunately, it is also a case in which there was no no-
tice to the Respondent that the General Counsel sought
an unfair labor practice finding in respect to the Sep-
tember incident because it was not alleged in the com-
plaint—nor was the complaint amended to include
such a claim. The Respondent could well believe that
the General Counsel adduced the evidence regarding
the September incidents as background to the October
incident.13 As the Respondent did not have fair notice
regarding any claimed September unfair labor practice,
the matter was not fully and fairly litigated and we
shall accordingly make no finding.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Mine Workers of
America, District 29, Beckley, West Virginia, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order as modified.
1. Delete paragraphs 1(a) and 1(b) and reletter sub-
sequent paragraphs.
2. Substitute the following for paragraph 1(c).
‘‘(c) Knowingly accepting unlawful aid and assist-
ance from Dogwood Trucking, Inc., C & T Trucking
Company, Sarn Enterprise, Inc., or Little T in recruit-
ing their employees to join the UMWA.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER RAUDABAUGH, concurring and dissenting in
part.
I agree with my colleagues’ finding that the Re-
spondent’s conduct in October 1989 violated Section
8(b)(1)(A) of the Act. I disagree, however, with their
conclusions that the Respondent did not have fair no-
tice regarding the alleged unfair labor practices on
September 17 and that these matters were not fully and
fairly litigated.
The judge found that Webb (a member of the Re-
spondent’s executive board) and the four men he se-
lected to accompany him were all acting as agents of
the Respondent. He further found that threats uttered
by one or more of these agents, on September 17, were
unlawful under Section 8(b)(1)(A).
The General Counsel elicited testimony that clearly
encompassed the September 17 threats by the men ac-
companying Webb. For example, General Counsel wit-
ness Compton testified that in the September 17 inci-
dent he was confronted at the preparation plant
scalehouse by Webb and four other men he did not
know. According to Compton, one of them said, ‘‘you
1159MINE WORKERS DISTRICT 29
1 One of the four men was president of Local 1895.
2 As noted above, Webb was on the executive board of the Re-
spondent (District 29).
have to sign these contracts or you’re not going to be
able to haul coal into this plant.’’ Although Compton
stated that Webb introduced himself, he could not
identify who in the group had made this statement. On
cross-examination, Compton explained that:
it all started when the Union came down to the
scales and they told us that we wouldn’t haul in
there . . . . The Union told us first if we didn’t
join the Union, then we would not haul into that
prep plant.
General Counsel witness Altizer, a driver, testified
that two threats were made to him during the Septem-
ber 17 incident. He testified that he was approached by
four men, one of whom identified himself as the presi-
dent of the Local,1 and another as the ‘‘district man-
ager or district something.’’2 Then, one of the men
asked Altizer if he belonged to the Union, and said:
if I hauled coal there I had to sign a
contract . . . if you’re going to haul coal here
you will belong to this Union. You will sign a
contract. He said, I’m bringing contracts up here
the next time I come. I believe he told me he had
done handed all he had out to other drivers. He
said I will bring one up here and you will sign
it.
Altizer also testified that when he walked in front of
his truck, one of the men went with him and said:
We’ll stop you from hauling. He said we may
not stop you here on Maben Energy
property . . . or we may not stop you up at the
coal pile, but he said we can stop you. He said
there’s a lot of bushes between here and the coal
pile.
Another General Counsel witness, Williams, testified
that on September 17 at the preparation plant, people
identifying themselves as ‘‘union representatives,’’ said
that ‘‘we would have to join the Union
. . . [b]ecause it was a Union job and you had to be-
long to the Union to haul into it.’’ Williams averred
that he knew none of the individuals identifying them-
selves as ‘‘union representatives.’’
The Respondent did not object to the General Coun-
sel’s introduction of this evidence. In addition, during
his rebuttal case, the Respondent’s attorney elicited
Webb’s account of what occurred during the Septem-
ber 17 incident.
I reject the Respondent’s contention that its failure
to cross-examine all the General Counsel’s witnesses
precludes a finding that the September threats were
fully litigated. The Respondent had the opportunity to
cross-examine all witnesses whose testimony estab-
lishes the violation. The Respondent’s failure to do so,
particularly when it examined Webb with respect to
his September 17 conduct, does not warrant the con-
clusion that the matter was not fully litigated. Car-
penters Western Pennsylvania District Council
(DeRose Industries), 256 NLRB 584 fn. 1 (1981), cit-
ing Seaview Manor Home, 222 NLRB 596 (1976). See
also H. H. Robertson Co., 263 NLRB 1344, 1361
(1982).
Contrary to my colleagues, I do not find a denial of
due process with respect to the conclusion that the Re-
spondent, acting through Webb and four others, threat-
ened employees on September 17. Although the com-
plaint alleges only conduct in October, the Respondent
does not claim a denial of due process by reason of
the difference in dates. The Respondent’s sole conten-
tion is that the complaint focused on Webb and not the
four others. However, the Respondent offered no ob-
jection with respect to the testimony concerning the
conduct of all five men. Notwithstanding this, my col-
leagues suggest that the Respondent somehow believed
that the testimony about the September events was of-
fered only as background evidence. However, as dis-
cussed above, that is not Respondent’s contention. In
addition, Respondent examined Webb with respect to
the September 17 incident. It is unreasonable and spec-
ulative to suppose that the Respondent would treat the
evidence regarding Webb as relevant to a possible vio-
lation but would treat the evidence concerning the four
others as background, in circumstances where all five
are involved in the same incident.
Finally, even if the Respondent is complaining about
the difference in dates (between September and Octo-
ber), I note that the events in September and the events
in October are closely related. They both concern ef-
forts to coerce employees into joining the Union. In
view of this and in view of the fact that both matters
were fully litigated, I find no failure to accord due
process. See Baytown Sun, 255 NLRB 154 fn. 1
(1981).
In sum, I believe that the events of September 17
were fully and fairly litigated.
My colleagues argue that the ‘‘Respondent was not
on notice that the conduct of anyone other than Webb
was in issue’’ with respect to the September incidents.
The argument has no merit. As noted above, evidence
concerning the conduct of Webb and the four others
was extensively adduced. Further, there was full and
fair litigation of the issue concerning whether the Re-
spondent was responsible for the conduct of the men
accompanying Webb. The evidence established that
Webb chose the men to accompany and assist him.
The testimony also established that the trips to meet
the drivers were part of his usual duties as an execu-
tive board member of the Respondent. This evidence
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This proceeding had been consolidated with Cases 9–CA–26962–
1 and –2, 9–CA–26963–1 and –2, and 9–CA–26964–1 and –2, in
which the General Counsel alleged that the drivers’ employers vio-
lated Secs. 8(a)(1), (2), (3), and (4) of the Act. But when the hearing
opened counsel for the General Counsel advised that the employers
had agreed to a settlement acceptable to the General Counsel. I
thereupon granted the General Counsel’s motion to sever those cases
from the General Counsel’s case against District 29. The procedural
background of this proceeding is as follows: Nov. 2—Angle files
charge in 9–CB–7461; Nov. 3—Shrewsberry files charge in 9–CB–
7461–2; Dec. 27—consolidated complaint issues (in Cases 9–CA–
26962–1 and –2, 9–CA–26963–1 and –2, and 9–CA–26964–1 and
–2, as well as 9–CB–7461–1 and –2); Feb. 2, 1990—amended con-
solidated complaint issues.
2 See Tr. 231.
fully supports the judge’s finding that the men accom-
panying Webb were agents of the Respondent. More-
over, during his cross-examination of Webb, the Gen-
eral Counsel raised the issue of the agency of the men
accompanying Webb. The Respondent did not claim
surprise or request additional time to prepare its de-
fense. Nor does it now contend that it would have liti-
gated the case differently if the complaint had ex-
pressly alleged all of Webb’s accomplices as agents.
Thus, there can be no valid claim that the conduct and
the agency status of all five men were not fairly and
fully litigated.
Accordingly, I would affirm the judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT knowingly accept unlawful aid and
assistance from Dogwood Trucking, Inc., C & T
Trucking Company, Sarn Enterprise, Inc., or Little T
in recruiting their employees to the UMWA.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL reimburse, with interest, all former and
present drivers employed by Dogwood Trucking, Inc.,
C & T Trucking Company, Sarn Enterprise, Inc., or
Little T for all union dues or other moneys unlawfully
exacted from them.
UNITED MINE WORKERS OF AMERICA,
DISTRICT 29
James E. Horner and Donald A. Becher, Esqs., for the Gen-
eral Counsel.
James McNeeley, Esq., for the Respondent.
Daniel C. McCarthy, Esq. (Baron & Curtis, Inc.), of Green-
wood, Indiana, for Sarn Enterprise, Inc., and Dogwood
Trucking, Inc.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. In October
1989, at the truck loading area of a coal mine near Rhodell,
West Virginia, a group of truckdrivers signed various docu-
ments handed to them by an official of District 29 of the
UMWA. (All incidents to which this decision refers occurred
in 1989 unless otherwise specified.) By signing those docu-
ments the drivers agreed, among other things, to join and pay
dues to the UMWA. The General Counsel claims that, prior
to those signings, agents of District 29 of the UMWA, in
violation of Section 8(b)(1)(A) of the National Labor Rela-
tions Act (the Act): (1) ‘‘threatened to cause bodily harm’’
to one of the drivers if he refused to sign; and (2) threatened
to have the drivers fired unless they signed.1
Having heard testimony presented by the parties, and hav-
ing considered their posthearing briefs, my conclusion is that
the record shows that District 29 (the Union) did violate Sec-
tion 8(b)(1)(A).
The Employers
The truckdrivers whom the Union allegedly threatened are
employees of several companies owned and run by members
of the Paynter family and their in-laws, the Leeses. The com-
panies: Dogwood Trucking Company, C & T Trucking, Sarn
Enterprise, and Little T. (the companies). The companies are
in the business of trucking coal from the ‘‘coal pile’’ at
Maben Energy’s Stoney No. 5 mines to Maben Energy’s
East Gulf preparation plant (the prep plant). Maben Energy
contracted with Dogwood Trucking Company for that truck-
ing service. Dogwood provides the service via subcontracts
with Sarn, C & T, and Little T. Those companies, in turn,
rent their trucks from individual members of the Paynter and
Leese family.
The companies form a single-integrated enterprise. There
is no doubt about that. The Union has admitted that to be
so. And the facts adduced at the hearing show it to be so.
(For example, all four companies use the same individuals as
supervisors.)
The companies, as a single-integrated enterprise, constitute
an employer engaged in commerce for purposes of the Act.
Again, the Union admits that to be the case,2 and the record
shows it to be so. (In 1989 Dogwood received $31,000 per
week from Maben Energy for its trucking services—more
than $1.5 million during the course of the year, and then par-
celed out much of that to Sarn, C & T, and Little T. Maben
Energy, in turn, sold and shipped coal valued much in excess
of $50,000 from its West Virginia mines to points outside
West Virginia.)
The Employee Status of the Truckdrivers
All of the companies’ truckdrivers signed agreements with
the companies by which the drivers were denominated ‘‘con-
tractors’’ and, as such, agreed ‘‘to furnish drivers’’ for the
companies’ trucks. In return, each driver received $10 per
load. Looking no further than those agreements, therefore,
none of the companies had any truckdriver employees—all of
the driving was handled by contractors. And, indeed, the
companies did not withhold taxes or social security, unem-
1161MINE WORKERS DISTRICT 29
3 Ibid.
4 See, e.g., Blackberry Creek Trucking, 291 NLRB 474 (1988).
ployment compensation, or workers’ compensation payments
from the drivers’ pay.
But in fact the drivers were employees of the companies.
Again, the Union admitted that to be so,3 and the facts show
it to be so beyond any possible doubt. For example:
1. No driver either owned or rented the truck he
drove, or any equipment in it. (The trucks and the
equipment were owned by the Paynters and the Leeses.)
2. No driver paid for fuel for the truck he drove or
oil or repairs or insurance or truck taxes.
3. The companies did not permit any driver to hire
anyone else to do the driving. He had to do it himself.
4. The companies set the hours and the days of the
week that each driver had to drive. (The hours were
typically 3 a.m. to 3 p.m., or vice versa; the days were
Monday through Saturday. I.e., a mandatory 72-hour
week.) No driver was permitted to drive either more
hours or fewer hours.
5. The work was limited to driving the 5 miles or
so from the coal pile at Stoney No. 5 to the prep plant
and back. No driver was permitted to undertake dif-
ferent or additional work.
6. No driver had access to the truck he drove at
times other than the driving times specified by the com-
panies. In fact, another driver drove the same truck for
the other 12 hours of each workday.
7. Even though most of the route was over public
roads, the drivers were limited to speeds specified by
the companies, which speeds were lower than the
roads’ published speed limits. The companies dis-
ciplined any driver who exceeded the speed limits set
by the companies.4
The Union’s Efforts to Sign Up the Drivers
The UMWA represents Maben Energy’s employees. Some
of those employees were unhappy about having Maben En-
ergy coal transported between one Maben Energy location
and another by drivers who were not members of the
UMWA. They expressed that unhappiness to the Union. The
Union, in turn, embarked on an effort to sign up the drivers.
The September 17 Confrontation
Maben Energy weighs trucks just before they unload at its
prep plant. Each driver has to pick up a ticket at the scale
house showing his truck’s weight. On or about September
17, as each of the companies’ drivers got out of his truck
to pick up the weight ticket, he was confronted by five men.
(The five were all wearing clothing in camouflage patterns.
The drivers assumed that to mean that the five were UMWA
members who supported the UMWA’s selective strike that
was then underway. That assumption was accurate.) One of
the five was Bobby Webb, a member of the Union’s execu-
tive board. Webb introduced himself to each driver, asked
the driver if he were a member of a UMWA local union, and
gave the driver a copy of the BCOA agreement, a dues-
checkoff authorization form, and an information sheet about
the UMWA.
At least three of the drivers were told by one or more of
the five men in camouflage that the drivers would not be
permitted to haul Maben Energy coal unless they joined the
UMWA. The UMWA men said things like: ‘‘you have to
sign these contracts or you’re not going to be able to haul
coal into this plant’’; and ‘‘it’s a union job and you have to
belong to the union to haul into it.’’
In addition, one of the five union members told one of the
drivers something on the order of:
If you don’t join, we’ll stop you from hauling. Maybe
we won’t stop you here, and maybe not up at the coal
pile. But we can stop you. There’s a lot of bushes be-
tween here and the coal pile.
But no driver was asked to sign anything then and there.
And all the drivers understood that any effort by the UMWA
to prevent nonunion drivers from hauling coal would not
occur until some time in the future.
A Few Days Later
A few days later Webb and the other four UMWA mem-
bers again waited for the drivers as they arrived, one at a
time, at the prep plant’s scale house.
No member of the companies’ management had gotten any
advance warning of the Union’s organizing effort on Septem-
ber 17. But about 6 hours before Webb and his cohorts ar-
rived at the scale house on this second occasion, a Maben
Energy official called an owner/officer of Dogwood Truck-
ing, Deron Paynter, to say that someone from the UMWA
‘‘would probably be around to sign everyone up.’’ The
Maben Energy official went on to say that if the companies
didn’t agree to have the UMWA represent their employees,
‘‘then there might be some problems.’’ Paynter responded by
claiming that the companies’ drivers were all ‘‘separate con-
tractors,’’ that ‘‘we didn’t have any employees.’’ Paynter
subsequently went to the scale house where he met Webb
and told Webb directly that the companies’ drivers were
‘‘contractors,’’ not employees.
Paynter played no role in the talks between Webb and the
drivers that occurred as the drivers pulled up to the scale
house. Those talks with the drivers, in turn, were uneventful.
By and large the discussions centered around questions by
the drivers about the costs of membership and whether they
would receive any benefits from union membership. Webb
told the drivers that the costs would be an initiation fee of
$200 and monthly dues of about $40. Benefits, according to
Webb, would be limited to having the honor of belonging to
the UMWA and the opportunity to participate in the affairs
of a local UMWA union. There would be no medical insur-
ance, for instance, or pension benefits.
The Drivers Agree to Join the UMWA
Sometime toward the end of October, Webb and another
UMWA member, James Carter, drove to the coal pile at
Stoney No. 5 in Webb’s Ford Bronco. (Carter had been one
of the four men assisting Webb at the two organizing ses-
sions at the prep plant in September.) The Bronco was filled
with copies of the BCOA agreement, checkoff authorization
forms, and various other UMWA forms and information
sheets. Webb knew that 25 drivers would be pulling into
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stoney No. 5. He went there fully expecting to sign up all
25.
When Webb and Carter arrived at Stoney No. 5 they stood
next to the tailgate of the Bronco, awaiting the drivers.
Shortly thereafter Jeff Paynter (an owner and officer of C &
T Trucking) arrived. He stationed himself a few feet from
Webb. (The record does not inform us how Jeff Paynter
came to know that Webb would be setting up shop at Stoney
No. 5 and when Webb would be doing so.)
As the companies’ drivers arrived at Stoney No. 5, many
stopped to talk to Jeff Paynter, whom they considered to be,
and in fact was, their supervisor. Paynter told each of the
drivers to whom he spoke that if the driver did not join the
UMWA, the companies would terminate the driver’s employ-
ment as of the end of the day. (All of the drivers heard what
Paynter had to say—either directly from Paynter, or indi-
rectly, from drivers who had spoken to Paynter.) Most of the
drivers responded to that news by turning to Webb and sign-
ing whatever forms Webb put in front of them. A couple of
drivers hesitated for a while, but they then also signed the
UMWA forms.
By the end of the day, 24 of the 25 drivers had signed
the forms that Webb handed to them. The lone exception
was a driver who already was a member of the UMWA.
The Strike
Many of the drivers, perhaps all of them, were furious
about having to join the UMWA. Membership to the drivers
meant only the payment of substantial amounts of money to
the UMWA with no concomitant benefits. The drivers’ anger
was directed at the companies, since it was the Paynters who
put the drivers in the position of either joining the UMWA
or losing their jobs.
The drivers decided to strike. They did so by parking their
trucks, first at the prep plant, then at Stoney No. 5. But after
a few hours Deron and Jeff Paynter told the drivers that they
would be fired unless they went back to work. The drivers
went back to work.
Conclusion—The Union’s Violations of Section
8(b)(1)(A)
The incidents on September 17. As described more fully
above, On September 17, one of five the UMWA members
told a driver that ‘‘there’s a lot of bushes’’ between the load-
ing and unloading points on the driver’s route. That was a
threat to use violence to prevent the driver from driving the
route unless he joined the UMWA. As such it violated Sec-
tion 8(b)(1)(A). Nationwide Plastics Co., 197 NLRB 996,
1005 (1972). (The Union claims that neither Webb nor any
of the union members who accompanied him in his organiz-
ing efforts were acting as agents of the Union. I discuss
agency matters in the following section of this decision. The
Union further claims that there can be no 8(b)(1)(A) viola-
tion since the record fails to show that the Union knew that
the drivers were employees, rather than independent contrac-
tors. I also discuss that contention below.)
I further conclude that statements to individual drivers on
September 17 by some of the union members to the effect
that the drivers ‘‘had to belong to the union to haul into’’
the Maben Energy facility violated Section 8(b)(1)(A). But it
seems to me the issue is a close one.
With the exception of the one threat to one driver, the set-
ting was a relatively quiet, nonominous one. No driver was
asked to sign anything on September 17. The statements
about having to join the Union were worded in a way that
seemed to refer to some indefinite time in the future. And
as of September 17, at least, the drivers had no reason to
conclude that their employer would support the Union in re-
quiring union membership.
But the facility where the drivers loaded their trucks was
organized by the UMWA as was the facility where the driv-
ers unloaded. And as the drivers knew, the only business of
their employer was to haul between those two locations.
Those two factors made any threat by agents of the UMWA
to prevent the drivers from hauling ‘‘into this plant’’ believ-
able and a matter of vital concern. I accordingly conclude
that the statements made to several drivers on September 17,
to the effect that they would not be able to haul to or from
the Maben Energy facilities unless they joined the UMWA,
reasonably tended to coerce and restrain the drivers.
Did the Union violate the Act when its agents signed up
the drivers. As of mid-October Webb (the District 29 execu-
tive board member) knew that the Union had no benefits to
offer the drivers, and he knew that the drivers were upset
with the notion of having to pay a sizable initiation fee and
monthly dues. Nonetheless he drove to Stoney No. 5 fully
expecting to sign up 100 percent of the drivers. The only
reasonable inference to make, and I make it, is that Webb
knew that the drivers were going to be pressured into joining
the UMWA.
At Stoney No. 5 Jeff Paynter, whom Webb knew to be an
owner and officer of the companies, stood a few feet away
from Webb. Drivers would briefly speak to Paynter, then
turn to Webb and sign whatever he put in front of them. The
drivers, that is, were not coerced into signing by Webb. They
were coerced by Paynter.
Webb testified that he was too busy having the drivers
sign union forms to pay any attention to what Paynter was
saying. I do not credit that testimony. I find that Webb did
hear Paynter tell some of the drivers that they could continue
their employment only if they joined the UMWA. I also find
that even when Webb did not overhear what Paynter was
saying, Webb knew what Paynter was telling the drivers.
The question is, does that make out a violation of the Act
by the Union. I conclude that it does. The circumstances,
added together, show that either (1) Webb and Jeff Paynter
had agreed that Paynter was going to join Webb at Stoney
No. 5 for the purpose of coercing the drivers into joining the
UMWA, or (2) while there was no explicit agreement about
the matter, Paynter had told Webb that Paynter would be at
Stoney No. 5 at a specified date and time for the purpose
of telling drivers that they had to join the UMWA. Either
way, and because Webb overheard Paynter threaten the driv-
ers, the Union participated in a scheme by which drivers
were unlawfully coerced into joining the UMWA. That adds
up to a violation of Section 8(b)(1)(A): Safeway Stores, 276
NLRB 944 (1985); Brown Transport Corp., 239 NLRB 711
(1978).
I recognize that the complaint does not specify this theory
of violative conduct by the Union. Rather, the complaint al-
leges only that Webb, ‘‘in the presence of Jeffrey
Paynter. . . . [t]hreatened to cause loss of employment to
employees’’ of the companies. And I have found that Webb
1163MINE WORKERS DISTRICT 29
did not utter any threats to the drivers. But the relationship
between Webb and Paynter at Stoney No. 5 was raised at the
hearing. Moreover the Union knew very well that the Gen-
eral Counsel believed there to be an unlawful relationship be-
tween the Union and the companies. In fact, until I granted
the General Counsel’s motion to sever (at the beginning of
the hearing), the complaint alleged that the companies—
have rendered aid, assistance, and support of Respond-
ent Union by refusing to permit their employees to
work unless those employees executed checkoff author-
ization cards for, and collective-bargaining agreements
with, Respondent Union.
I thus conclude that the issue was sufficiently litigated to
permit the conclusion that, by Webb’s conduct at Stoney No.
5, the Union violated Section 8(b)(1)(A) of the Act.
Agency Issues
The Union contends that neither Webb nor any of the
UMWA members who assisted him in seeking to sign up the
drivers were agents of the Union and that, therefore, the
Union may not be held responsible for their acts.
Webb as an agent. The Union’s contention regarding
Webb is altogether frivolous.
Webb is a member of the Union’s executive board. He ad-
vised the drivers of his position with the Union. Webb’s du-
ties as an executive board member include checking trucks
at locations within District 29’s jurisdiction to determine if
the drivers are members of the UMWA. It was those duties
that led him to speak to the companies’ drivers at the prep
plant and at Stoney No. 5. All that adds up to the Union ob-
viously being responsible for Webb’s statements to the driv-
ers and his actions in presenting checkoff authorization forms
and other UMWA documents to the drivers. (Indeed, given
Webb’s position with the Union, the Union would be respon-
sible for those statements and actions even had the recruiting
of drivers into the UMWA not been part of Webb’s duties.
See Mine Workers Local 1058 (Beth Energy), 299 NLRB
389 (1990).)
Webb’s assistants as agents of the Union. Webb denied
making any threats to the drivers in the course of the con-
frontations at the prep plant in September. I credit that de-
nial. He claims that at those confrontations only he and
Carter said anything to the drivers—that the other three men
with him did not. I do not credit Webb’s testimony in that
regard. Rather, as discussed above, I find that one or more
of the four men accompanying Webb did threaten the driv-
ers. I further find that they did so within sight of Webb, al-
though not necessarily within Webb’s earshot. That raises the
question of whether Carter and the other three were acting
as agents of the Union when one or more of them threatened
the drivers.
Carter and the other three men who went with Webb to
the prep plant were receiving strike pay from the UMWA.
(They were not on strike against either Maben Energy or the
companies.) None of the four were officers of District 29.
All four accompanied Webb because he asked them to assist
him. And what Webb wanted them to assist him in was at-
taining the Union’s object of having the drivers become
dues-paying UMWA members.
None of Webb’s four assistants was a Maben Energy em-
ployee. And there has been no showing that the drivers, upon
joining the UMWA, became members of any UMWA local
union of which any of the four was a member. Thus the four
had no reason whatever to be at the prep plant except to as-
sist Webb.
In sum, an officer of the Union assigned roles to the four
in ‘‘the general area’’ of recruiting the companies’ drivers
into the UMWA. Bio-Medical Applications, 269 NLRB 827,
828 (1984). One or more of the four threatened drivers with
physical violence and loss of employment if the drivers did
not join the UMWA. I will assume for present purposes that
Webb did not want any of the four to utter any threats. But
under Section 2(13) of the Act—
in determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
The threats were uttered for the purpose of getting the
drivers to join the UMWA; that is, they were ‘‘within the
general scope of authority attributed to the agent.’’ Bio-Medi-
cal Applications, above. Moreover, since Webb introduced
himself to the drivers as an officer of the Union, and since
the four were obviously accompanying Webb, the drivers
could ‘‘reasonably have believed’’ that each of the four
‘‘was acting on behalf of the Union.’’ Penn Yan Express,
274 NLRB 449 (1985).
My conclusion that Webb’s four assistants Webb were
agents of the Union raises a troubling due process issue. The
complaint alleges that Webb made all the threats. The com-
plaint also contends only that Webb and Carter were agents
of the Union. The complaint says nothing about the other
three men who were with Webb at the prep plant. Yet it may
have been only those three who uttered any threats.
At the hearing the Union focused its efforts on proving
that neither Webb nor Carter did anything wrong. The Union
did not call as witnesses any of Webb’s other three assist-
ants. (Carter did testify. But for reasons explained in the
record, I struck all of his testimony.) Should the Union have
foreseen that it might be held responsible for the statements
of Webb’s assistants?
I think so. Neither the testimony of the General Counsel’s
witnesses concerning the prep plant incidents, nor that of
Webb’s, was limited to what Webb, or Webb and Carter, ut-
tered. Moreover the threats against the drivers were made in
Webb’s presence by persons he had personally asked to ac-
company him. In these circumstances I conclude that the
Union had a full and fair opportunity to litigate the question
of whether persons other than Webb threatened the drivers
at the prep plant, and whether the Union could properly be
held responsible for those threats.
I accordingly further conclude that the Union is respon-
sible for the threats uttered by one or more of Webb’s four
assistants.
The Union’s Alleged Belief that the Drivers were
Independent Contractors, not Employees
The Union argues that it could not have violated Section
8(b)(1)(A) in its actions toward the drivers since it believed,
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
in good faith, that the drivers were independent contractors,
not employees. It is not a persuasive argument.
To begin with, the Union failed to prove that it in fact be-
lieved that the drivers were independent contractors. It is true
that an officer of the companies told Webb that the drivers
were independent contractors. But Webb seemed to me to be
a savvy, experienced, union organizer who had to have
known that the companies might have reasons for falsely
claiming that the drivers were not employees. Yet no one
from the Union made any inquiry into the facts of the rela-
tionship between the drivers and the companies. Had the
Union asked any questions at all about that relationship, of
course, it would have been clear that the drivers were em-
ployees, not independent contractors.
Secondly, the Union’s contention raises a kind of dirty-
hands issue. That’s because if the drivers were not employ-
ees, the Union’s threats would present issues under Section
8(b)(4).
Thirdly, and most importantly, even were I to find (which
I do not) that the Union believed that the drivers were inde-
pendent contractors rather than employees, that finding
would be beside the point. ‘‘[S]cienter is not an element of’’
an 8(b)(1)(A) violation. Desco Vitro-Glaze of Schenectady,
230 NLRB 379, 385 (1977), enfd. mem. 99 LRRM 3072 (2d
Cir. 1978).
REMEDY
The record shows that the drivers joined the UMWA only
because they were coerced into doing so by their employer,
with the Union knowingly accepting the benefits to it of that
coercion.
The record also shows that upon joining the Union, the
drivers were required to pay monthly dues. (As it turns out,
the drivers were not required to pay any initiation fee.) If the
companies were Respondents herein, I would recommend
that the companies and the Union be required to jointly and
severally reimburse the drivers for all dues they paid to the
Union. See, e.g., Safeway Stores, 276 NLRB 944 (1985). But
the companies are not Respondents, the case against them
having been severed from the case against the Union because
of a settlement agreement reached between the General
Counsel and the companies (as noted in fn. 1, above). More-
over the record does not indicate whether, as a result of that
settlement, the companies have reimbursed the drivers par-
tially or wholely for the union dues the drivers were coerced
into paying.
Under these circumstances I recommend that, in respect to
those present and former drivers employed by the companies
from whom union dues were unlawfully exacted, the Union
be required to reimburse such drivers for such dues, together
with interest computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987); provided that the
amounts the Union is required to pay to the drivers should
be reduced by whatever payments have been made to the
drivers in that respect by the companies. I recommend leav-
ing to the compliance stage determinations about: (1) wheth-
er the companies have made such payments and, if they
have, the amounts; and (2) the identities of the drivers enti-
tled to be reimbursed by the Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, United Mine Workers of America, Dis-
trict 29, Beckley, West Virginia, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Threatening employees of Dogwood Trucking, Inc., C
& T Trucking Company, Sarn Enterprise, Inc., or Little T
with physical harm if they do not become members of the
UMWA.
(b) Threatening employees of Dogwood Trucking, Inc., C
& T Trucking Company, Sarn Enterprise, Inc., or Little T
with loss of employment if they do not become members of
the UMWA.
(c) Participating in a scheme by which such employers co-
erce employees into becoming members of the UMWA.
(d) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse former and present drivers employed by
Dogwood Trucking, Inc., C & T Trucking Company, Sarn
Enterprise, Inc., or Little T for all dues unlawfully exacted
from them by or on behalf of the Union, in the manner pro-
vided in the remedy section of this decision.
(b) Post in its offices copies of the attached notice marked
‘‘Appendix.’’6 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by the
Union’s representative, shall be posted by the Union imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Union to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Sign and mail sufficient copies of the notices to the
Regional Director for posting by Dogwood Trucking, Inc., C
& T Trucking Company, Sarn Enterprise, Inc., and Little T,
if willing, at all places where notices to employees are cus-
tomarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Union has taken
to comply.