National Labor Relations Board v. United Mine Workers of America, Dist. 2

202 F.2d 177

• Court: Court of Appeals for the Third Circuit
• Decided: March 20, 1953
• Docket: 10759_1
• Status: Published

Opinions

MARIS, Circuit Judge.

The National Labor Relations Board has petitioned for the enforcement of an order issued by it against District 2 of the United Mine Workers of America and four of its officers and representatives. The Board found that the respondents in the course of an organizing drive which began in July, 1950 had violated Section 8(b) (1) (A) of the National Labor Relations Act, as amended, 29 U.S..C.A. § 158 (b) (1) (A), by restraining and coercing the employees of Ziros Company, Mercury Mining and Construction Corporation and Pine - Hill Coal Company, coal mining operators, and Richard H. Gaiser, a coal trucking contractor, from exercising the rights guaranteed to them by Section 7 of the act. The Board found that the restraint arid coercion had involved mass invasions of the mining facilities of Ziros, Mercury and Pine Hill, threatening employees of those operators and of Gaiser with economic reprisals, force and violence, and barring their ingress or egress to and from work.

The order of the Board which is here sought to be enforced requires respondent District 2 of the United Mine Workers and its agents, including specifically the four individual respondents, to cease and desist from in any manner restraining or coercing the employees of Ziros, Mercury, Pine Hill and Gaiser “or any other employees engaged in mining operations, within the territorial jurisdiction of District 2, United Mine Workers of America” in the exercise of the rights guaranteed them by Section 7 of the act. The respondents oppose enforcement of the Board’s order upon the ground that the Board’s findings are not supported by substantial evidence and that, in any event, the Board’s order is too broad in its scope.

The Board adopted, with slight modifications, the findings of its trial examiner. These are set out iñ extenso in the decision of the Board. 96 N.L.R.B. 1389. It would serve no useful purpose to- review them here. It is sufficient to s&y that our examination of the record as a whole satisfies us that the evidence amply supports the findings that the respondents restrained and coerced the employees of Ziros, Mercury, Pine Hill and Gaiser in violation of Section 8(b) (1) (A) of the act. Compare National Labor Relations Board v. United Mine Workers, 4 Cir., 1951, 190 F.2d 251; National Labor Relations Board v. United Mine Workers, 6 Cir., 1952, 195 F.2d 961; National Labor Relations Board v. United Mine Workers, 4 Cir., 1952, 198 F.2d 389.

As has been indicated, the Board’s order enjoins the respondents from restraining or coercing not only the employees of Ziros, Mercury, Pine Hill and Gaiser in the exercise of their statutory rights but also any other employees engaged in mining operations within the territorial jurisdiction of District 2. In entering so broad an order the Board did not follow the recommendation of its trial examiner that the order be limited to the employees of the four employers named. The trial examiner had held that the evidence failed to establish any “planned program” on the part of the respondents to apply their unlawful techniques to all nonunion mine operators within the jurisdiction of . District 2 and concluded that the entry of an order in the broad terms sought by the Board’s general counsel was unwarranted. In overruling the trial examiner on this point the Board said in its decision (96 N.L.R.B. 1389, 1391-2):

“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 detenriine 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 herein to be unlawful have been typical methods and techniques, recently 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. We shall therefore issue the broad order against the Respondents requested by the General Counsel.”

The respondents strongly urge that in entering such a broad cease and desist order against them the Board exceeded its authority under the act. It is settled that the Board has broad power to determine the necessary scope of its orders and that it is authorized to restrain other violations of the act, the danger of whose commission in the future is to be anticipated from the course of the respondent’s conduct in the past. National Labor Relations Board v. Express Pub. Co., 1941, 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930; May Dept. Stores Co. v. National Labor Relations Board, 1945, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145; National Labor Relations Board v. United Mine Workers, 6 Cir. 1952, 195 F.2d 961. We agree with the Board that in exercising its power to restrain other violations than those complained of it is not limited by the necessity of finding the existence of a “planned program” on the part of the respondents to commit such other violations in the future. It is sufficient if it appears from the nature and extent of the respondents’ past conduct that there is real danger that they will commit other unfair labor practices in the future.

We are satisfied that there was substantial evidence to support the Board’s finding that such danger existed in this case. Four representatives of District 2, including its president, testified that the United Mine Workers were engaged in a general campaign to organize the nonunion mines within the territory of the District, and they all stated that the acts which took place with respect to the employees of Ziros, Mercury, Pine Hill and Gaiser were not unusual but, as President Mark stated, “just the ordinary thing that we do in order to try to protect our Organization by organizing every coal operator that we can.” It was on the basis of this evidence that the Board found that the coercive practices of the respondents with respect to the employees of Ziros, Mercury, Pine Hill and Gaiser were typical methods and techniques utilized by the respondents in their organizational activities and that a real danger might reasonably be anticipated of the future commission by the respondents of similar unlawful acts as to all nonunion employees engaged in mining operations everywhere within the territorial jurisdiction of District 2. Given the facts, admitted by the respondents, that they were engaged in a district-wide organizing campaign and that the organizing methods employed with respect to Ziros, Mercury, Pine Hill and Gaiser were not unusual, the Board was certainly justified in concluding that the danger exists and that unless the respondents are enjoined from doing so, they will be likely to employ those methods with respect to other nonunion operators throughout the district. We accordingly conclude that under the circumstances of this case the Board did not exceed its discretionary authority in entering the broad order which was entered in this case.

A decree will be entered enforcing the order of the Board.