Alston Coal Company

National Labor Relations Board - Board Decisions

Jul 18, 1939

13 N.L.R.B. 683 (N.L.R.B. 1939)

In the Matter of ALSTON COAL COMPANY W& PROGRESSIVE MINE
WORKERS OF AMERICA, INTERNATIONAL UNION, AFFILIATED WITH
AMERICAN FEDERATION OF LABOR
Case No. R-1352.Decided July 18, 1939
Coal Mining Industry-Eniploper: companies functioning through Employer
Association-Investigation of Representatives: controversy concerning represen-
tation of employees: controversy concerning appropriate unit; rival organiza-
tions ; petition for, dismissed, where no question concerning representation has
arisen in a unit which is appropriate for the purposes of collective bargaining-
Unit Appropriate for Collective Bargaining: history of collective bargaining with
employer association over many years ; similarity of history of rival labor organi-
zations in bargaining with employer associations ; contracts made by employer
association for its members ; stabilization of industry ; placing of individual
employers on fair competitive basis; employees of one company which is member
of an employer association not a unit appropriate for purposes of collective
bargaining.
Mr. Daniel J. Leary, for the Board.
Mr. George R. Malcolm and Mr. A. B. Keller, of Pittsburg, Kans.,
for the Operators Association and the Company.
Mr. James A. Glenn, of Coshocton, Ohio, and Mr. John R. Kane,
of Springfield, Ill., for the Progressive.
Mr. C. 0. Pingry, of Pittsburg, Kans., and Mr. T. C. Townsend, of
Charleston, W. Va., for the United.
Miss Fannie M. Boyls, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On June 11, 1938 , Progressive Mine Workers of America , Interna-
tional Union , affiliated with American Federation of Labor , herein
called the Progressive , filed with the Regional Director for the Sev-
enteenth Region (Kansas City, Missouri) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Alston Coal Company , Pittsburg , Kansas, herein
called the Company , and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
13 N. L . R. B., No. 77.
683
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, 49 Stat. 449, herein called the Act. On October 21,
1938, the National Labor Relations Board, herein called the Board,
ordered that the petition be dismissed but thereafter, on November 21,
1938, revoked its order dismissing the petition. On February 27,
1939, the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On March 10, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, Southwestern
Interstate Coal Operators' Association, herein called the Operators
Association, the Progressive, and United Mine Workers of America,
District No. 14, herein called the United, a labor organization claim-
ing to represent employees directly affected by the investigation. Pur-
suant to orders postponing and transferring the hearing, notices of
which were duly served upon all the parties, a hearing was held from
April 3 to and including April 13, 1939, at Pittsburg, Kansas, before
William R. Ringer, the Trial Examiner duly designated by the Board.
At the commencement of the hearing the Operators Association and
the United were permitted by the Trial Examiner to intervene. Also
at the commencement of the hearing the Operators Association and
the Company each filed a statement as an answer to the petition filed
by the Progressive. The Board, the Company, the Operators Associa-
tion, the Progressive, and the United were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner made several rulings on motions and on objections to
the admission of evidence. The Board has reviewed these rulings and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. After the conclusion of the hearing, the Progressive
and the United filed briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Alston Coal Company was incorporated under the laws of the State
of Kansas on September 7, 1927, and was licensed to do business in
Missouri in 1933. It is engaged in mining bituminous coal by the strip-
mining method upon adjacent properties in Kansas and Missouri
situated about 4 miles north and 5 miles east of Pittsburg, Kansas.
It owns a small tract of land in Missouri upon which it maintains
ALSTON COAL COMPANY 685
a tipple and preparation plant. The land from which the coal is
mined, consisting of about 850 acres in Missouri and 300 acres in
Kansas, is leased by the Company.
For several years prior to the hearing the Company had been mining
coal exclusively from its Kansas lease and transporting the coal over
tram tracks owned by it to its tipple and preparation plant in Missouri.
During the course of the hearing the Company commenced removing
its operations to its Missouri lease where it planned to mine a vein of
coal which runs from the Company's Missouri lease across the State
line into its Kansas lease. The southeastern portion of the land owned
by the Company is bounded by the Missouri Pacific Railroad Com-
pany tracks. The Company owns sidings which connect with those
tracks and which are used by the Missouri Pacific Railroad Company.
Between September 21, 1935, and March 31, 1939, all coal produced
by the Company was sold under contract to The Commercial Fuel
Company in Pittsburg, Kansas, which in turn sold the coal to whole-
salers, railroads, and other consumers. During the year 1937 The
Commercial Fuel Company sold and transported approximately
25,368 tons to railroads, 1,127 tons to wholesalers in Kansas and Mis-
souri, and 188,022 tons to other customers in Kansas, Missouri, Ne-
braska, Iowa, Minnesota, and Oklahoma. Of the total amount only
about 51,845 tons were sold and transported to purchasers within the
State of Missouri. The Company's contract with The Commercial
Fuel Company expired on March 31, 1939, and was not renewed. How-
ever, since that date coal sold by the Company has been delivered to
substantially the same destinations as the coal which had been sold
by The Commercial Fuel Company.
In marketing its coal the Company uses the trade name "Imp Coal,"
which is registered for use in interstate commerce. It has at times
advertised under that name in newspapers in Kansas City, Missouri,
and Omaha, Nebraska, and in a trade magazine published and circu-
lated in Missouri.
II. THE ORGANIZATIONS INVOLVED
Progressive Mine Workers of America is a labor organization afli,
ated with the American Federation of Labor, herein called the A. F.
of L. It was formed as an independent union in the State of Illinois
on September 1, 1932 . In 1937 it became a federal union of the
A. F. of L. and in April 1938 was chartered by the A. F. of L. as an
international union . Local No. 301 of the Progressive was organized
among employees of the Company in July 1938.
United Mine Workers of America is an international labor organiza-
tion affiliated with the Congress of Industrial Organizations , herein
called the C. I. O. It has for many years had a local, No. 766, among
employees of the Company.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District No. 14 of the United and District No. 3 of the Progressive
are composed of the locals of the United and the Progressive, respec-
tively, within the States of Kansas and Missouri.
III. THE OPERATORS ASSOCIATION
Within the territory covered by District 14 of the United, and
District 3 of the Progressive, there are three associations of coal-mine
operators. One of the three, the Southwestern Interstate Coal Oper-
ators' Association, of which the Company is a member, was organized
in 1903 as a voluntary unincorporated association. It includes "within
its membership operators of coal mines in Kansas and Missouri, most
of whom are engaged in mining coal within a radius of about 50
miles from Pittsburg, Kansas. About 90 per cent of the mine em-
ployees within that area work for operators who are members of the
Operators Association. At the date of the hearing 16 of approxi-
mately 22 operators within the territorial jurisdiction of the Operators
Association were members of it.
The purposes of the Operators Association are stated in its consti-
tution to be the organization into associate membership of coal-mine
operators in order to foster harmonious relations between them and
build up and protect the coal-mining industry; to bring about im-
proved conditions in coal mining and safety in the conduct thereof;
and to "take such steps as may be deemed best from time to time
through publicity, legislative and statistical efforts, or act on any
other matters as may be authorized by the Board of Directors, affecting
and of interest to the members, to accomplish or to aid in the accom-
plishment of such purposes." Although collective bargaining and
the regulation of labor relations in behalf of its members is not ex-
pressly mentioned as one of the purposes, such matters have been among
its functions since its organization.
The record does not disclose the manner in which the members have
delegated to the Operators Association authority to negotiate and
enter into collective bargaining contracts in their behalf. That such
authority has been delegated, however, is clearly evident from the fact
that the Operators Association has in fact negotiated and entered into
contracts for its operator members with the United over a period of 36
years. Its power to bind its members in that respect was not contro-
verted at the hearing. We find it had such power.
The contracts thus negotiated are signed in behalf of the Operators
Association by its president and general commissioner. The individual
operators do not sign the contracts. The general commissioner is
employed by the "Directory" of the Operators Association and has
charge of negotiating collective bargaining contracts. He is also a
member of the Interstate joint Commission which under the United
ALSTON COAL COMPANY 687
contract is the final tribunal for settling disputes which arise between
the operators and their employees.
The Company, since its incorporation in 1927, has been a member
of and has accepted the Operators Association as its agent in negotiat-
ing and entering into collective bargaining contracts with the United
and in representing the Company in labor controversies over which
the Operators Association has been given jurisdiction under the
contracts.
IV. THE PRESENT CONTROVERSY
In May 1938 Herman Eccher, director of organization for the
Progressive in its District No. 3, came to Pittsburg, Kansas, and
sought to organize employees of the Company, all of whom were then
members of the United. On July 6 a large majority of the employees
met and voted to withdraw from the United and join the Progressive.
They were then granted a charter as Local No. 301 of the Progressive.
During July representatives of the Progressive met several times
with officials of the Company and the general commissioner of the
Operators Association. They requested that the Company recognize
the Progressive as the collective bargaining agency of employees of
the Company, presented the Company with a petition signed by 48
of the approximately 60 employees of the Company, revoking all
prior authorizations for a check-off of dues for the United and author-
izing the Company to check off dues and assessments for the Progres-
sive. They indicated that they would be willing to continue working
under the terms of the United contract until its expiration date, March
31, 1939.
The United contract, which governs grievances, labor disputes,
wages, rates of pay, hours of employment, and conditions of work
for all employees of the operators holding membership in the Operators
Association, provided, among other things, that the Company would
"check off all union dues, assessments, fines and initiation fees from
all strip mine laborers." The Company and the Operators Asso-
ciation took the position that this provision of the contract obligated
the Company to continue checking off dues for the United throughout
the period covered by the contract. They further contended that by
reason of this, and other provisions of the contract not necessary here
to set forth, all employees of the Company were required to join the
United and sign an authorization for the check-off of dues and assess-
ments to be paid to the United. This was also the contention of the
United which had for a long period of years required all regular
employees of the Company who were eligible for membership in the
United to join it and sign a check-off authorization. Under these
circumstances the Company refused to recognize and deal with the
Progressive as the sole collective bargaining agency of its employees.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the result of repeated demands by the United that all employees
who were not members of the United be replaced by United members
and that five of the Progressive members be immediately replaced, the
Company, on August 2, 1938 , laid off the five. Within a week there-
after all other members of the Progressive renounced their member-
ship in that organization and rejoined the United.
On February 28, 1939, the Operators Association and the United
entered into an agreement whereby their contract which was to expire
on March 31 , 1939, was extended pending the negotiation of a basic
wage agreement by districts of the United which were participating in
what was known as the Joint Appalachian Wage Conference. This
conference was in progress at the date of the hearing.
V. THE APPROPRIATE UNIT
The Progressive contends that all employees of the Company, ex-
cluding superintendents, foremen, and office employees, constitute a
unit appropriate for the purposes of collective bargaining. The
United contends that the appropriate unit should consist of the em-
ployees of all operators holding membership in the Operators Asso-
ciation.
Each District of the United, since being affiliated with the C. I. O.
and prior thereto while affiliated with the A. F. of L., has negotiated
and entered into contracts with operator associations based upon agree-
ments reached by the United with operator associations in a repre-
sentative area. For some time prior to 1933 this representative area
was called the Central Competitive Field and embraced the States of
Indiana, Illinois, Ohio, and Pennsylvania. Since 1933 the Appalachian
area, embracing the States of Pennsylvania, West Virginia, Virginia,
Kentucky, Alabama, Tennessee, Michigan, and Ohio, has been the
representative area for which the basic agreement has been negotiated.
After the basic agreement has been reached the scale committee, or
bargaining committee, of each District of the United has met with
representatives of the various operator associations and made contracts
embodying the basic provisions of the Appalachian agreement. Each
operator who has not joined an operator association but whose em-
ployees are members of the United has signed an agreement with
the United obligating itself to abide by the terms of the contract
negotiated between the United and the operator association in the area
in which such operator is located.
The Progressive, too, has bargained on an association-wide basis.
In Illinois where it was organized in 1932 District No. 1 of the Progres-
sive has negotiated contracts with the Coal Producers Association of
Illinois. These contracts have been adopted by operators in Illinois
ALSTO ' COAL CO\IPAI Y 689
who are not members of the Coal Producers Association of Illinois,
but whose employees are members of the Progressive. Approximately
160 locals of the Progressive at approximately that number of mines
in Illinois are covered by the contracts negotiated between District
No. 1 of the Progressive and the Coal Producers Association of Illinois.
As we have hereinbefore stated, approximately 90 per cent of the
As we have hereinbefore stated, approximately 90 per cent of the
ciation are members of it. The fact that it has for 36 years been nego-
tiating contracts with the United in behalf of these operators and the
further fact that non-members of the Operators Association whose
employees are members of the United have been adopting and agree-
ing to abide by these contracts indicate that the operators as well as
the employees have considered collective bargaining on an association-
wide basis as desirable. Bargaining and making contracts on such a
basis has helped to stabilize the coal-mining industry and place the
mines on a fair competitive basis, a condition which would be very
difficult of achievement if separate contracts were negotiated with each
operator. We see no reason to depart from the practice of the parties
as evidenced by these contractual relations prevailing over a long
period of time.
The Progressive contends that the Act does not permit the Board
to decide that a bargaining unit which is broader than the individual
employer or operator is appropriate. The Board is expressly author-
ized by the Act, however, to decide that the "employer" unit is the
unit most appropriate for purposes of collective bargaining. The
Act includes within the definition of "employer," "any person acting
in the interest of an employer, directly or indirectly," and includes
within the definition of "person," "one or more . . . associations." We
are therefore authorized to find and we do find that the Operators
Association is an employer within the meaning of the Act.
For the reasons set forth above in this section and in view of the
entire record, we are of the opinion that the unit claimed by the
Progressive does not constitute a unit appropriate for the purposes
of collective bargaining. We shall therefore dismiss the petition of
the Progressive.'
See Matter of Shipowners ' Association of the Pacific Coast, et at . and International
Longshoremen's and Warehousemen's Union Local 1-13, 7 N. L R B 1002; Matter of
Mobile Steamship Association, et at and International Longshoremen's and Warehouse-
men's Union, 8 N L. R B 1297 ; National Labor Relations Board v . Christian A. Lund,
Doing Business as C. A. Lund Company and Northland Ski Manufacturing Company,
103 F. ( 2d) 815 (C. C. A. 8th).
2In addition to the cases cited in the previous footnote , see Matter of Admiar Rubber
Company and American Federation of Labor on behalf of Employees of Company , et at.,
9 N L R B 407; Matter of Hyman -Michaels Company, United Commercial Company
Division and International Union of Mine, Mill and Smelter Workers , Local No 50, C. I 0 ,
11 N L R B 796
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE QUESTION CONCERNING REPRESENTATION
Since, as stated in Section V above, we are unable to find an appro-
priate unit within the scope of the petition filed in this case, we find
that no question has been raised concerning the representation of em-
ployees of the Company in an appropriate bargaining unit.
Upon the basis of the above findings of fact and the entire record
in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning representation of employees of Alston Coal
Company, Pittsburg, Kansas, in a unit which is appropriate for the
purposes of collective bargaining has arisen, within the meaning of
Section 9 (c) of the National Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby dismisses the petition
for investigation and certification filed by Progressive Mine Workers
of America, International Union, affiliated with American Federation
of Labor.