Kalodner, Staley and Gibbons, Circuit Judges.
The National Labor Relations Board in this case petitions pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1964) for the enforcement of an order made by it on May 2, 1969 against respondents in a proceeding in which it found that respondents had violated section 8(a)(2) and (1) of the Act by assisting a union in its organizational efforts and by recognizing that union as the exclusive bargaining representative of their employees when the union did not represent an uncoerced majority. The Board also found violations of section 8(a)(2), (3) and (1) in the maintenance of union security clauses, and of section 8(a) (1) in coercive interrogation, threats of loss of employment, and creating the impression of surveillance.
Each of the respondents is engaged in coal mining operations in Indiana County, Pennsylvania. Seven coal mines, and one coal tipple are involved. Until late November of 1967 the seven mines and one coal tipple operated without union contracts. In that month organizing efforts took place on behalf of both the United Mine Workers of America (UMW) and the Southern Labor Union (SLU). Both the UMW and the SLU filed charges with the Board, and as a result separate complaints issued. In NLRB v. United Mine Workers of America, 429 F.2d 141 (3rd Cir. 1970) this court granted enforcement of the Board's order prohibiting the UMW from restraining and coercing employees of Mears Coal Company, one of the respondents here, and from restraining and coercing members of the SLU in their rights guaranteed by section 7 of the National Labor Relations Act. The violent reaction of the UMW to the incursion of SLU into what the UMW regarded as its own preserve, which is the subject matter of that case, took place shortly after the events with which we are now concerned. The events presently in question relate to the execution of seven collective bargaining contracts between the SLU and the various respondents as follows:
1. November 17, 1967, Peles Brothers Coal Company, Glen Campbell, Pa. The Peles Brothers mine is operated by a partnership in which Joseph Peles and Nestor Peles are partners. This contract covered over 12 employees. It was signed on behalf of the partnership by Nestor Peles.
2. November 17, 1967, Dixon Run Coal Company, Marion Center, Pa. The Dixon mine is operated by a partnership in which Edward Mears, Charles Mears, Murray Martin and Earl Bence (Mears Coal Company) have a half interest and K and S Coal Company, Inc., a corporation, has a half interest. This contract covered 30 employees. It was signed on behalf of the partnership by Harold Kammerdiener, the mine superintendent and a stockholder in K and S Coal Company.
3. November 18, 1967, Mears Coal Company, Marion Center, Pa. The Mears open pit mine and mine tipple (coal cleaning and car loading facility) is operated by a partnership in which Edward Mears, Charles Mears, Murray Martin and Earl Bence are partners. This contract covers an undisclosed number of employees. It was signed on behalf of the partnership by Edward Mears.
4. November 18, 1967, Copper Valley Coal Company, Clymer, Pa. The Cooper Valley mine is operated by a partnership in which Edward Mears, Charles Mears, Murray Martin, Earl Bence (Mears Coal Company), Harold Leasure, Russell Herby and Robert Gilbert are partners. This contract covers 25 employees. It was signed on behalf of the partnership by Robert Gilbert.
5. November 20, 1967, Chestnut Ridge Mining Co., Clymer, Pa. The Chestnut Ridge mine is operated by a partnership in which Edward Mears, Charles Mears, Murray Martin and Earl Bence (Mears Coal Company) have a half interest and John Peles has a half interest. The contract covers 15 employees. It was signed on behalf of the partnership by John Peles.
6. November 21, 1967, Penn Hill Coal Co., Inc., Indiana, Pa. The Penn Hill mine is operated by a corporation. Its stockholders are Howard E. Friel, Kenneth Leasure, and Donald Leasure, Sr. The contract covers 18 employees. It was signed on behalf of the corporation by Howard E. Friel and Kenneth Leasure.
7. December 1, 1967, MY Coal Co., Indiana, Pa. The MY mine is operated by a partnership in which Edward Mears, Charles Mears, Murray Martin and Earl Bence (Mears Coal Company) have a half interest and Rocco Yanity, Anthony Yanity and Casmer Yanity (Yanity Brothers) have a half interest. The contract covers 18 employees. It was signed on behalf of the partnership by Rocco Yanity.
Prior to November, 1967 the SLU did not have any contracts in Pennsylvania. So far as the record discloses the first interest shown by the SLU in Indiana County was on November 4, 1967 when Ted Q. Wilson, its general counsel, telephoned Nestor Peles of Peles Brothers and obtained certain information about Peles Brothers non - union operation. The first on the scene organizational activity of the SLU took place on November 10 when some SLU official, Mr. Wilson apparently, flew into the Indiana County airport in a private airplane. The next on the scene organizational activity took place on November 16, when signatures on SLU authorization cards were first solicited at Penn Hill, Dixon Run, Peles Brothers, and possibly Chestnut Ridge. On November 17, authorization cards were first solicited at Copper Valley, at Mears Coal, at MY Coal and probably at Chestnut Ridge. Authorization signatures were again solicited at MY Coal on November 18 and November 20. At each of the seven mines the SLU obtained signed authorization cards from a majority of the employees. At each mine the union was recognized upon verification of signatures, and each of the contracts listed above was executed after a short, separate negotiating session. The contracts set forth significant differences in job classifications, in pay scales, and in vacation benefits at the different mines. All except two (Chestnut Ridge - two years, and Peles Brothers - two and one-half years) ran for three years. One, Dixon Run, provided for annual reopening for wage and benefit adjustments, and another, Penn Hill, provided only for wage renegotiations after one year. Two, Peles Brothers and Penn Hill, provided a per ton production bonus over a certain production for each production man. The contracts were uniform, however, in many respects; especially in requiring each mine to pay a royalty to the "Southern Labor Union Welfare Fund"*fn1 of ten cents per ton, in requiring union membership as a condition of employment, and in providing for dues check-off.
The UMW, surprised by the speed with which the SLU was able to obtain recognition compared with its own lack of success in Indiana County, on November 28, 1967 filed with the Regional Director, Region 6 of the National Labor Relations Board the first of a series of charges. These charges resulted on March 29, 1968, in a consolidated complaint against all the instant respondents, but not against the SLU. That union appeared in the Board proceedings as an intervenor, not as a respondent. The trial examiner issued his decision on November 6, 1968, and on May 2, 1969, the Board adopted his findings, conclusions and recommended order, with certain clarifications. It found that each respondent's interest and action so allied it with the other respondents "that it may be fairly inferred that the several Respondents were acting in concert in pursuit of the common objective of avoiding the possibility" of the UMW organizing their employees. It found that the SLU solicitors Donald Leasure, Jr., Ronald Thornton, and Robert Dougherty, were agents for all of the respondents both when they spoke to the employees, and when they engaged the services of two other solicitors who spoke to employees at different mines. It found that all the solicitors were, therefore, agents of all the respondents in urging membership in the SLU, and in conveying what the Board regarded as threats to close down if the UMW succeeded in organizing. It found that some respondents had made threats, or committed unlawful interrogations, and held each liable for the acts of all the others. The Board's order required respondents to cease giving effect to each collective bargaining agreement, but without changing any of the bargained for conditions of employment, including payment of the ten cent a ton royalty to the SLU Welfare Fund. It prohibited recognition until after an NLRB certification. It also entered a Brown-Olds type reimbursement order, requiring each respondent (though not the SLU) to reimburse each employee for dues which it had checked off and remitted to the SLU.
The Board's decision in effect held each respondent to be the agent of every other respondent, and each SLU solicitor to be the agent of each respondent, and thus made each respondent liable:
(1) for employer assistance and support to the SLU, in violation of Section 8(a)(2) and (1) of the Act,
(2) for maintaining union-security clauses in their SLU contracts when the SLU did not represent an uncoerced majority, in violation of Section 8a(2), (3) and (1) of the Act,
(3) for coercively interrogating employees about participating in UMW activities by creating the impression that such participation was under surveillance, and,
(4) for threatening their employees with loss of employment if they selected the UMW to represent them.
We are presented with the issue whether these sweeping findings of agency are supported by substantial evidence on the record as a whole. Section 10(e), 29 U.S.C. § 160(e) (1964). We may, of course, modify the Board's decree if we find that it lacks an evidentiary basis in the record as a whole for all the relief decreed. In that case we can tailor our enforcement order so that it applies only to those violations for which there is an evidentiary basis. E.g., NLRB v. Local 825, IUOE, 410 F.2d 5, 11 (3 Cir. 1969); NLRB v. Teamsters Local 830, 281 F.2d 319 (3 Cir. 1960); Lakeland Bus Lines, Inc. v. NLRB, 278 F.2d 888 (3 Cir. 1960).
The Board in accepting the trial examiner's conclusion of joint responsibility for all unfair labor practices said:
In reaching this result we view the present record as establishing that each respective Respondent's interest and action allied it so closely with the other Respondents that it may be fairly inferred that the several Respondents were acting in concert in pursuit of the common objective of avoiding the possibility of the United Mine Workers . . . organizing their employees, and that liability must attach to all 175 NLRB No. 136 (1969).
With due deference to the Board, we do not view the record as permitting any such inference. Indeed on the record such an inference would be based on suspicion and speculation rather than on evidence.
We take it as undisputed that each respondent shares a preference for the ten cent a ton coal royalty imposed by the SLU for its welfare fund over the forty cent a ton royalty imposed by the UMW for its welfare fund. Such a common preference for the retention of thirty cents a ton is not, however, evidence of concerted action. There is no direct evidence of concerted action, and each witness who might have direct knowledge of it denied it. The trial examiner attaches significance to the fact that several SLU solicitors (whom he found to be agents of the respondents) made reference to the fact that payment of the forty cent UMW royalty would endanger the continued working of the mines. The finding that all solicitors were management agents depends upon the finding of concerted action. In the context of the non-union coal industry in Indiana County, in November, 1967, the solicitors' use of an argument against the forty cent a ton royalty which was a matter of common knowledge is no evidence even of concerted action among themselves, never mind evidence that they were acting for joint principals. In the general counsel's case it was established that the UMW itself was not pressing its organizing efforts, after an unsuccessful attempt to organize on mine in 1966, until markets closer to this remote area became available. (DeGretto testimony 240 app.). That common reference was made to the thirty cent royalty differential is in these circumstances an insufficient basis for the Board's finding of concerted action.
The Board relies on the existence of certain familial relationships to establish concerted action. Joseph and Nestor Peles, owners of Peles Brothers Coal, are cousins of John Peles, a one-half owner of Chestnut Ridge. There is no evidence of any communication between these cousins on any subject. Kenneth Leasure and Donald Leasure, Sr., brothers, are stockholders in Penn Hill. Harold Leasure, son of Donald Leasure, Sr. and nephew of Kenneth, is a partner in Copper Valley. There is no evidence of any communication between these three on any subject. Finally, Harold Leasure and Donald Leasure, Jr., brothers, are partners in H & D Trucking Company, which owns coal hauling trucks. As we mentioned heretofore, Donald Leasure, Jr. solicited authorizations on behalf of the SLU. He was paid for this effort by the SLU. ...