Central Minerals Co.

National Labor Relations Board - Board Decisions

Dec 7, 1944

59 N.L.R.B. 757 (N.L.R.B. 1944)

In the Matter of J. R . TODD D/B/A CENTRAL MINERAIs COMPANY and
UNITED MINE WORKERS OF AMERICA, DISTRICT 14
Case No. 17-C-1129.-Decided December 7,1944
DECISION
AND
ORDER
On July 21, 1944, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that he cease and desist from the unfair labor prac-
tices found and take certain affirmative action, as set out in the copy
of the Intermediate Report attached hereto. Thereafter, the respond-
ent filed exceptions to the Intermediate Report and a, supporting brief.
None of the parties requested oral argument before the Board at
Washington, D. C. The Board has considered the rulings of the Trial
Examiner at the hearing and finds that no prejudicial errors were com-
mitted. The rulings are hereby, affirmed. The Board has considered
the Intermediate Report, the briefs and exceptions of the respondent,
and the entire record in the case, and hereby adopts the findings, coii-
clusions, and recommendations of the Trial Examiner, with the excep-
tions and modifications noted below :
1. We agree with the conclusion of the Trial Examiner that the
lockout of February 5, 1944, constituted a violation of both Section
8 (1) and Section 8 (3) of the Act. However, the lockout was alleged
in the complaint only as a violation of Section 8 (1). We shall there-
fore conform our finding herein with the allegation in the complaint.
Accordingly, we find that, by locking out his employees from February
5 to February 11, 1944, the respondent violated Section 8 (1) of the Act:
This modification, however, will not affect the back-pay remedy which
the Trial Examiner recommended and which we shall adopt in our
Order herein.,
2. The Trial Examiner found, and we agree, that, on or about
December 20, 1943, and at all times thereafter, the respondent refused
1 See N. L. R. B. v . Fort Wayne Corrugated Paper Co., 111 F. (2d) 869 ( C. C. A 7),
wherein the court sustained the Board 's order of reinstatement with back pay based upon a
finding of discriminatory discharge within the meaning of Section 8 (1) of the Act.
59 N. L. R. B, No. 153.
757
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain collectively with the Union as the exclusive representative
of liis employees in an appropriate unit in violation of Section 8 (5)
of the Act. In our concurrence with the Trial Examiner 's conclusion
to that effect, we are persuaded, inter alia, by the following con-
siderations :
On December 20, 1943, in response to the,Union's request for recog-
nition and a contract, the respondent, having voiced his refusal to sign
the contract, stated : "In fact, we won't do anything with the
Union . . . we'll close down before we even recognize them."
Subsequently, on February 5, 1944, after having unsuccessfully
attempted to procure his employees' repudiation of their union affilia-
tion by means of the petition, the respondent unlawfully locked out
his employees by in fact closing the mine and by thereafter failing to
resume operations until he had secured the signatures of a majority
of the employees to the petition announcing their withdrawal from the
Union. This conduct on the part of the respondent constituted a
refusal to recognize and deal with the Union as the exclusive repre-
sentative of his employees, and we so find.
Then, after having previously told the Union that it could not afford
to grant the union scale of wages set forth in the proposed contract, the
respondent, on January 25, unilaterally granted a wage increase to all
of his employees who were earning less than the union scale. This, as
the Board and the courts have held in numerous cases,2 constitutes a
refusal to bargain within the meaning of Section 8 (5), for the respond-
ent was under a duty to consult with the Union and to submit such
matters to negotiation.
The Trial Examiner found, and we agree, that at no time did the
respondent enter into bona fide collective bargaining with the Union.
In view of the total situation, including the refusal to recognize the
Union on December 20 and thereafter, the unilateral wage increase of
January 25, 1944, the circulation of the petition, and the lockout of
February 5, it is clear that the respondent's generalized counterpro-
posal to the Union's demand that he sign the standard contract was not
made in good faith acid that the respondent failed to make a reasonable
and sincere effort to reach a collective agreement with the Union, as
,required by Section 8 (5) of the Act. However, we wish to point out,
obiter, that, absent the factors comprising the total situation as out-
lined above, we would not have found that the respondent' s failure to
make detailed and specific counterproposals in itself constituted bad
faith negotiations, for the Union's ultimatum-"We have one contract"
2 See e g , Great Southern Trucking Co. v N. L R. B., 127 F. (2d) 180, 186 (C. C. A. 4),
cert . den. 317 U. S. 652; Singer Mfg Co. v. N L. R. B , 119 F. (2d) 131 (C. C A. 7), cert.
den. 313 U. S 595; N. L. R. B. v. H. G. Hill Stores, 140 F. (2d) 924 (C. C A. 5).
CENTRAL MINERALS COMPANY 759
and "you can take it or leave it"-would have relieved the respondent
of that duty since the Union's position made it clear that specific
counterproposals would be unavailing.
3. The Trial Examiner found, and we agree, that Lloyd E. Steele,
the shovel operator, was discharged in violation of Section 8 (3).
However, since the respondent has eliminated Steele's job by con-
tracting to have shovel work performed by an independent contractor,
the Trial Examiner recommends no reinstatement, but only back pay
from the date of the discrimination to the date when his job was
eliminated. Since Steele's former job might be reinstated, or in any
event, since there may be other available positions for him, we are
of the opinion and find that the remedy should be modified as follows :
In the event that the respondent has resumed or hereafter resumes
operations, offer to Steele -immediate and full reinstatement to his
former or to a substantially equivalent position, or to any other avail-
able position for which he is qualified, without prejudice to his sen-
iority or other rights and privileges previously enjoyed; and if no
such position is then available, place him on a preferential list and
thereafter offer him employment as it becomes available. In view
of the modification outlined above, the back-pay remedy will also be
modified as follows : Make whole Steele for any loss of pay he has
suffered by reason of the respondent's discrimination against him,
by payment to him of a sum equal to the amount which he normally
would have earned as wages during the period from February 5,
1944, to May 6, 1944, the date on which the respondent suspended
his mining operations, and from the date of the respondent's resump-
tion of mining operations to the date of the offer of reinstatement,
or placement upon a preferential list, less his net earnings during the
said period .3
4. Since the mine was closed at the time of the hearing, and may
not yet have resumed operations, we shall amend our usual posting
of notice requirement so that the notices will be posted immediately
or, if the mine is not in operation, immediately upon the resumption
of operations.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, J. R. Todd d/b/a Central
Minerals Company, Scammon, Kansas, and his agents, successors,
and assigns shall:
8 A similar remedy was employed in Matter of Williams Motor Company, 31 N. L. R. B.
715, enf'd, 128 F. (2d) 960 (C. C. A. 8).
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain collectively with the representatives of
his employees, subject to the provisions of Section 9 (c) of the Act;
(b) In the event that he is operating or hereafter operates his
mine at Scammon; Kansas, refusing to bargain collectively with United
Mine Workers of America, District 14, as the exclusive representative
of all of his production and maintenance employees, exclusive of
truck drivers, office personnel, and supervisors with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such.action, in respect to rates
of pay, wages, hours of employment,, or other conditions of employ-
ment;
(c) Discouraging membership in United Mine Workers of Ameri-
ca, District 14, by discharging, laying off,, locking out, or refusing to
reinstate any of his employees, or by discriminating in any other
manner in regard to their hire and tenure of employment or any term
or condition of their employment;
(d) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, or to join or assist United Mine Workers of
America, District 14, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) In the event that he is operating or hereafter operates his mine
at Scammon, Kansas, bargain collectively, upon request, with United
Mine Workers of America, District 14, as the exclusive representative
of all his production and maintenance employees, exclusive of truck
drivers, office.personnel, and supervisors with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action, in respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment ;
(b) In the event that he is operating or hereafter operates his mine
at Scammon, Kansas, offer Lloyd E. Steele immediate and full re-
instatement in the manner set forth in paragraph 3 of the Decision
hereinabove;
(c) In the event that he is operating or hereafter operates his mine
at Scammon, Kansas, offer Frank DeCasciaro immediate and full re-
instatement to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges;
CENTRAL MINERALS COMPANY 761
(d) Make whole Frank DeCasciaro for any loss of pay he has suf-
fered, or may hereafter suffer, by reason of the respondent's discrimi-
nation against him, by payment to him of a sum of money equal to
that which he normally would have earned as wages from February
5, 1944, the date of his discriminatory discharge, to May 6, 1944, the
date on which the respondent suspended his mining operations, and
from the date of the respondent's resumption of mining operations
to the date of the offer of reinstatement, less his net earnings during
such periods;
(e) Make whole Lloyd E. Steele for any loss of pay he has suffered,
or may hereafter suffer by reason of the respondent's discrimination
against him, in the manner set forth in paragraph 3 of the Decision
hereinabove;
(f) Make whole each and every one of his employees laid off on
February 5, 1944, with the exception of Frank DeCasciaro and Lloyd
E. Steele, for whom provision has been made in paragraphs (b), (c),
(d), and (e) above, for any loss of pay they have suffered by reason
of the respondent's discrimination against them, by payment to each
of them of a sum of money equal to that which he normally would
have earned as wages from February 5, 1944, to February 11, .1944,
the period of his discriminatory lay-off, less his net earnings during
such period;
(g)' Post immediately; or, if the mine is not in operation, imme-
diately upon the resumption of operations, in places of prominence at
his mine in Scammon, Kansas, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to his
employees stating : (1) that the respondent will not engage in the
conduct from which he is ordered to cease and desist in paragraphs
1 (a), (b), (c), and (d) of this Order; (2) that the respondent will
take the affirmative action set forth in paragraphs 2 (a), (b), (c),
(d), (e), and (f) of this Order; and (3) that the respondent's em-
ployees are free to become and remain members of United Mine
Workers of America, District 14, or any other labor organization,
and that the respondent will not discriminate against any employee
because of membership in or activities on behalf of such organization.
(h) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, and again
within ten (10) days from the future date, if any, when' he - shall
resume operations of the mine at Scammon, Kansas, what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
I
Mr. John A. Weiss, for the Board.
Mr. J. R. Todd, of Fort Smith, Ark., for the respondent.
Mr. Joseph E. Hromek, of Pittsburg, Kans., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on February 16, 1944, by United Mine
Workers of America, District 14, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
Seventeenth Region (Kansas City, Missouri), issued its complaint dated April
L'6, 1944, against J. R. Todd, d/b/a Central Minerals Company, herein called the
respondent, alleging that the respondent had engaged in, and was engaging in,
unfair labor practices affecting commerce within the meaning, of Section 8 (1),
(3), and (5) ,and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by
notice of hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing,' alleged in substance: (1) that production and maintenance employees
of the respondent at its mine at Scammon, Kansas, exclusive of manager , superin-
tendent, foreman, and truck drivers constitute a unit appropriate for collective
bargaining ; (2) that on and after December 20, 1943, the Union was and is now
the duly designated representative of employees in the aforesaid appropriate
unit for purposes of collective bargaining; (3) that on and after December 20,
1943, although requested to bargain collectively with the Union, the respondent
has refused to do so; (4) that the respondent on February 5, 1944, laid off and
thereafter refused to reemploy or reinstate Lloyd E. Steele and Frank De Casciaro,
its employees, because of their membership in and activity on behalf of the Union;
(5) that by the foregoing conduct and statements prejudicial to and derogatory
of the Union questioning of employees concerning their union affiliation and activi-
ties, circulation among its employees of petitions designed to cause their with-
drawal and resignation from the Union the granting of a wage increase for the
purpose of discouraging union affiliation and a lockout of employees on February
5, 1944, the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. In its duly filed
answer, the respondent denied that it had engaged in the alleged unfair labor
practices. -
Pursuant-to notice, a hearing was held at Pittsburg, Kansas, on May 9 and 10,
1944, before the undersigned, the Trial Examiner duly designated by the Chief
Trial Examiner. The Board was represented by counsel and the respondent
and the Union by lay representatives. All participated In the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties.
At the close of the hearing, the respondent and the Board argued orally before
the undersigned The parties were advised that they might file briefs with the
undersigned. No briefs were filed.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
1 The complaint was amended at `the hearing to allege a lockout of the respondent's em-
ployees from February 5 to 11, 1944.
CENTRAL MINERALS COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
763
The reispondent, J. R. Todd, doing business as Central Minerals Company, is
and has been since August 1, 1943, engaged in the mining of coal on a property
near Scammon, Kansas, leased by the respondent.
The respondent in the conduct of its business has from the period of November
5, 1943, to and including February 4, 1944, removed from its mine at Scammon,
Kansas, approximately 9,835.51 tons of coal, of an approximate value of $26,555.
Of this coal, approximately 4,909.07 tons, of an approximate value of $13,300,
was sold, shipped and caused to be distributed by the respondent to persons and
companies outside of the State of Kansas. The amount of coal thus mined and
sold through the channels of interstate commerce, represents approximately
48.50 percent of respondent's total production at its Scammon, Kansas mine for
the period hereinbefore stated.
All mechanical facilities used in the mining of coal, such as excavating shovels
and other machinery, were purchased and shipped from places outside the State
of Kansas to the respondent's place of business at Scammon, Kansas. This me-
chanical equipment was of a value in excess of $1,000.
On the basis of the foregoing findings of fact, derived from a stipulation of
the parties, the undersigned finds that the respondent is and at all times material
herein has been, engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Mine Workers of America, District 14, is an unaffiliated labor organi-
zation admitting to membership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Background .
The respondent on or about August 1, 1943, began preparatory work on its
mining operations at Scammon, Kansas, where it held a 5-year lease on some 33
acres of coal mining property. Mining operations were under the general direc-
tion of J. R. (Russell) Todd, the respondent and sole owner, whose office is at
Fort Smith, Arkansas. I. H. (Isaac) Todd, brother to Russell Todd, resided near
the Scammon mine, kept the respondent's books, and appears from the entire
record to have been Russell Todd's personal representative and agent in charge
of mining operations in his brother's absence.'
On or about November 1, 1943, Isaac Todd visited the office of Joseph E. Hromek,
an international representative of the Union, in Pittsburg, Kansas, where he
requested and 'received of Hromek a copy of the Union's standard contract
applicable to the "strip" mining industry? Todd testified that he obtained a
copy of the contract in order to acquaint himself with the prevailing wage scales
of the region.
2 Russell Todd admitted that he visited the Scammon mine only four times during the
period since November 3, 1943. Isaac Todd testified that he made daily reports to hill
brother on the operation of the mine. It further appears that Isaac Todd relayed the in-
structions of his brother to employees. As will be seen hereinafter, he represented himself
to the Union's representative as authorized to bargain in behalf of the respondent, carried,
on negotiations with the Union, issued orders for the layoff and discharge of employees, and$
on February 5, 1944, caused a temporary shutdown of mining operations.
3 Strip mining is to be distinguished from mining operations where a shaft is sunk and
the coal is removed through the shaft. In strip mining, the surface earth formation over-
laying the coal strain is removed exposing the coal which is then excavated and removed-by
surface operations.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the date when Todd had visited Hromek 's office, two employees
of the respondent , Robert Cook and Lloyd Steele, advised Hromek at the latter's
office that a majority of the employees wished union representation . Hromek
advised Steele and Cook concerning organizational methods and gave them some
union authorization cards. Prior to December 20, 1943, these employees returned
11 cards bearing the signatures of employees of the respondent . It appears that
two of these signatures were of truck drivers whom the Union did not undertake
to represent.
B. The refusal to bargain; interference , restraint, and coercion ; lockout of
employees
1. The appropriate unit
The complaint alleged that the production and maintenance employees of the
respondent at its Scammon , Kansas mining operations , exclusive of manager,
superintendent , foreman, and truck drivers , constitute a unit appropriate, for
the purposes of collective bargaining . No objection thereto was voiced by the
respondent during its negotiations with the Union or at the hearing. In the
light of the testimony , however, the terms "manager," "superintendent," and
"foreman" are somewhat ambiguous . It appears that the parties intended to
exclude office personnel and supervisors of whatever title who have the authority
to hire or discharge or to effectively recommend the same.
The undersigned finds that all production and maintenance employees of the
respondent at its Scammon , Kansas mining operations , exclusive of truck drivers,
office personnel , and supervisors with authority to hire or discharge or effec-
tively to recommend the same, at all times material herein constituted and
now constitute a unit appropriate for the purposes of collective bargaining and
that such unit insures to employees of the respondent the full benefit of their
right to self-organization and collective bargaining and otherwise effectuates the
policies of the Act. }
2. Representation by the Union of a majority within the appropriate unit
The undersigned finds that on December 20, 1943, the respondent had a total
of 12 production and maintenance employees. Of these 9 signed cards accept-
ing membership in the Union and designating the Union their bargaining rep-
resentative . It further appears that at all times material herein, those employees
who signed union authorization cards, constituted a clear majority of all em-
ployees in the appropriate unit. The undersigned accordingly finds that on
December 20, 1943, and at all times thereafter , the Union was the duly designated
representative of the majority of employees in the appropriate unit, and, pur-
suant to Section 9 (b) of the Act , was the exclusive representative of all the
employees in such unit for the purposes of collective bargaining with respect
to rates of pay, wages , hours of employment , and other conditions of employment.
3. The refusal to bargain
On December 6, 1943, Hromek called on isaac Todd at the latter 's office
and asked him if lie had the authority to "deal and bargain" for the respondent.
Todd answered in the affirmative . Hromek then advised him that the Union
represented a majority of the employees and requested recognition of the Union
as bargaining representative . Todd neither then nor thereafter raised any
question as to the Union's majority nor requested proof of it . He testified
that there was always a question in his mind of the Union 's majority and that
CENTRAL MINERALS COMPANY 765
some who signed union authorization cards did not want to. He was unable,
or unwilling, however, to give the names of such employees. There is no evi-
dence that signatures to union cards were obtained through fraudulent or coer-
cive practices. Russell Todd testified, "The union represented to me that they
had authorization, but the men never told me." Obviously, he was properly ad-
vised in the matter by the employee's chosen representative, and in any event,
respondent's failure to demand proof of the union majority or to challenge
it at any time prior to the hearing, before union or government representa-
tives, bespeaks its actual conviction that the Union represented a majority as
claimed. The undersigned has found that at all times material herein, the Union
did in fact represent a majority of employees in the appropriate unit. It 1- clear
therefore that the respondent was required ender the Act to extend recognition
to the Union and to bargain collectively with it. It is also clear and the under-
signed finds, that in negotiations with the Union, Isaac Todd represented the
respondent and that his statements and conduct are attributable to it.
In the conference of December 6, Hromek presented Isaac Todd with the
Union's standard contract for strip mines and asked him to sign it on behalf
of the respondent. Todd refused. He testified that he considered it no use
to submit the contract to his brother for the latter's consideration, since the
mine could not be operated under this contract. He further testified that he
told Hromek, "Let's get together . . . on a contract that might fit the small
mine," but that Hromek advised him, "We have one contract," and "you can
take it or leave it." This testimony , not disputed , is credited.
On December 20, Lloyd Steele and Robert Cook, who had been designated
president and secretary, respectively, of the union local, saw Isaac Todd at the
mine, advised him of the Union's majority, and requested recognition and a
contract. Cook testified that Todd having voiced his refusal to sign a union
contract, stated, "In fact, we won't do anything with the union . . . we'll close
down before we even recognize them." Steele, also, testified that Todd stated
that he would not sign a contract with the Union. Todd testified that Steele and
Cook merely stated that the employees wanted to org.imze. It appears that
Steele and Cook were authorized and directed to ask Todd for a union contract
and it is not credible that they would merely advise Todd that they were inter-
ested in organization. In view of the total circumstances, the undersigned credits
Steele and Cook, and finds that Todd made the statements substantially as
attributed to him by Cook.
A further conference between Hromek and Isaac Todd occurred on December
21. Louis Boulard, Jr., a union representative, accompanied Hromek on this
occasion. On January 12, 1944, Boulard accompanied by a representative of the
Conciliation Service of the U. S. Department of Labor, called on Todd with
reference to union recognition and a contract. The substance of these several
conferences was the same, the Union pressing its demands for recognition and a
contract and Todd reiterating his refusal to execute a contract with the Union.
Boulard testified that at the December 21 conference, Todd said that he would
not sign a contract with the Union and that if the employees were dissatisfied
they could quit. Hromek testified similarly that Todd stated, "If these employees
down here don't like it they don't have to work there. Let them get off of the
premises if they don't like it." This testimony is consistent with respondent's
entire conduct with reference to the union activities of its employees, and is
'credited. The only suggestion advanced at any of these conferences by Todd,
of the character of a counterproposal, was his suggestion to Hromek, set forth
above, relative to a contract adapted to small scale mining operations.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The requirements of bona fide collective bargaining did not bind the respondent
to accept the Union 's proposal of its standard contract provided its refusal was
made in good faith. Respondent was required to make a reasonable and sincere
effort to reach a contractual agreement . Whether its refusal to sign the Union's
standard contract and intimation that an agreement might be reached on the
basis of a contract more adapted to small strip mining operations , represented
an effort in good faith to come to terms with the Union , is properly determined
in. the light of the entire circumstances.
It was Isaac Todd 's position that the Union 's standard contract was not adapted
to small -scale operations . It was Hromek's undisputed and credited testimony
that this same contract had been executed by the Union and numerous small min-
ing operators in the Scammon district . Todd testified specifically that his main
objection to the contract was its specification of certain employees for stated job
classifications . The union contract , however, while setting up certain job or work
classifications , provided that "All company men shall perform whatever labor the
foreman may direct." Hromek testified that in answer to Todd's inquiry , he advised
the latter that the union contract permitted the transfer of an employee from one
job operation to another , and this also appears from the contract itself. While
at the time of the December conferences , respondent was paying less than the
wage scale for certain job classifications specified by the union contract, at a later
date respondent unilaterally raised wages in certain of these classifications. Fur-
ther than the foregoing , the record does not divulge on what specific grounds the
respondent based its contention that the union's standard contract was not adapted
to small scale mining operations . The circumstances of respondent 's unilateral
action in granting a wage-increase , considered in connection with Todd 's state-
ment on December 20 to Steele and Cook, in reference to dealing with the Union
evidence a determination by the respondent not to recognize or deal with the
Union on any terms, and reflect a lack of good faith in respondent 's negotiations
with the Union from the outset. '
On January 25, 1944, the employees were summoned to respondent 's office at the
Scammon operations , where they were advised by Isaac Todd that all employees
then receiving less than the union scale of wages would be raised to a minimum
of 85 cents an hour. Some of the employees affected were then receiving 70 cents
an hour. It appears-that . the affected employees were thus raised to the union's
standard scale of wages in their respective job classifications . During the same
conference , Isaac Todd circulated among the employees for their signatures, a
petition which was addressed to the respondent and which bore the following text :
In order that there be no misunderstanding, between the employees and the
company, we wish to make it clear that we are entirely satisfied with condi-
tions at the mine, that our wages are satisfactory
We further wish to make it clear that we are representing ourselves and
do not wish to have any other person or persons representing us, either the
United Mine workers or any other body
We further wish to make it clear that we are signing this of our own free
will and accord and have not been mistreated or coecered ( sic) by the com-
pany or any official of the company.
You may consider this as final until we notify you in writing that we are
not satisfied . We will do this personaly ( sic) if at any time we desire to
change the above statement.
We understand that we are free to consult with and make any complaint
to the company or its employees or officials without predijuise ( sic) to us or
any one of us, and that we signed this as a group.
CENTRAL MINERALS COMPANY 767
Only one employee signed the petition during the January 25 meeting in Todd's
office' Admittedly, the petition was originally prepared by Russell Todd, though
Isaac Todd made some changes in it after he received it from his brother.
On February 5, 1944, Isaac Todd shut down all mining operations and laid off
all employees except three or four engaged in "cleaning up" operations. Opera-
tions were resumed after 6 days. In the interim, 8 employees signed the petition
which Isaac Todd had presented on January 25, and it was only after these signa-
tures had been obtained on the petition that operations were resumed. All
employees were returned to their jobs except Steele, president of the union local,
and Frank De Casciaro, an active union member. Neither Steele nor Casciaro
at any time signed or offered to sign the petition. A discussion of their respective
discharges, alleged to have been discriminatory, is found in sub-division III (C)
infra of this Report.
Isaac Todd testified that the "main" purpose of ,the January 25 meeting was
to find out if the men were actually interested in working and would extend
cooperation to load a proper amount of coal. He also testified, with reference
to the petition, "If the men wanted to represent themselves I didn't want to put
in so much time with outside interests."' According to Todd, the mine was not
closed because of lack of orders, but because of unsatisfactory production. Rus-
sell Todd, however, admitted that had not his brother obtained a sufficient number
of signatures on the petition during the period that the mine was closed, opera-
tions would not have been resumed thereafter. This admission bespeaks not only
the actual motivation for the closing of the mine, but makes manifest a determina-
tion by the respondent not to recognize and bargain with the Union, since the
petition itself was openly and patently an effort to undermine the Union and
deprive it of membership among respondent's employees.- It is clear from the
entire record that to respondent, employee "cooperation" was synonymous with
repudiation of union representation The circumstances under which signatures,
were obtained on the petition, were essentially coercive since it is clear that min-
ing operations were suspended primarily for the purpose of requiring from
employees a repudiation or refusal of union representation. Signatures thus
obtained were incapable of standing for a revocation of union representation and,
therefore, of affecting the union's majority.
In consideration of the total situation, the undersigned is convinced that
the respondent at no time extended bona fide recognition to the Union or entered
into bona fide collective bargaining with it. If Isaac Todd's testimony is
credited, at the time he was meeting with the Union's representative ostensiblyi
for the purpose of negotiating a contract, he entertained doubts of the Union's
majority, but as previously indicated, he did not express such doubts to the
Union's representatives nor, did he at any time demand proof of the Union's
' Isaac Todd testified that at this meeting he started to question each employee Indi-
vidually as to whether he was satisfied with the conditions at the mine ; that some of the
employees did not express themselves, but that De Casciaro said, "I'll just leave it to the
committee," after which he did not question the employees further. Under the circum-
stances, it is clear that Todd was actually attempting to elicit from the employees whether
or not they wanted the Union, and such questioning, attended as it was by the circulation
of the petition, constituted interference, iestraint, and coercion.
I Cook testified that in presenting the petition on January 25, Todd said, "well, boys, I
don't see where we need any other representation for you boys, and you can't keep up two
families and get by," and, ". . we don't want anything to do with the damned union any-
way " Steele testified with reference to Todd's statements on this occasion, "He said that
he could rim his own business, and it was only a small body of men there and he didn't see
why we couldn't settle our own grievances." This testimony is consistent with respondent's
entire conduct and is credited
61 S6S3-45-vol 59-50
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claims. He testified that he made daily reports to Russell Todd on the operation
of the mine but that he did not "bother" the latter with such "trivial" things
as the conferences with Hromek. Russell Todd testified that on or about
December 20, 1943, Isaac Todd advised him "quite casually" that the Union had
asked for bargaining rights. This testimony is indicative of respondent's state
of mind with reference to negotiations with the Union's representatives. Obvi-
ously bona fide collective bargaining could not take place in an atmosphere
engendered by such attitudes. The entire record reflects respondent's hostility
toward the Union and indignation at the employees' efforts to better their con-
dition through union representation. In the light of these circumstances, the
undersigned is unable to believe that Isaac Todd was sincere in his rejection of
the Union's proposal of a contract on the ground that it was not adapted to
small scale mining operations or that his alternate proposal, phrased in only
general terms, was advanced in good faith or honest effort to reach an agreement.
To the contrary, the undersigned is convinced that respondent was from the
outset determined not to recognize the Union or deal with it as representative
of its employees. The undersigned accordingly finds that on or about December
20, 1943, and at all times thereafter, the respondent refused to bargain collectively
with the Union as the exclusive representative of its employees in the appro-
priate unit in violation of Section 8 (5) of the Act, and that the respondent
thereby interfered with, restrained, and coerced its employees in violation of
Section 8 (1) of the Act.
4. Interference, restraint, and coercion
On the basis of the foregoing findings of fact and the entire record, the under-
signed finds that the respondent by its unilateral action on January 25, in
granting a wage increase, and at the same time presenting a petition to its
employees which in effect represented a repudiation or refusal of Union repre-
sentation, and by its interrogation concerning their union affiliation, interfered
with, restrained, and coerced its employees in violation of Section 8 (1) of the Act.
5. Lockout of employees
On the basis of the foregoing findings of fact and the entire record, the under-
signed finds that on February 5, 1944, the respondent locked out certain of its
employees for the purpose of ridding itself of the Union and evading collective
bargaining with it, and by the aforesaid action interfered with, restrained, and
coerced its employees in violation of Section 8 (1) of the Act and discriminatorily
deprived them of a period of employment in violation of Section 8 (3) of the Act.
C. The discriminatory discharge of Lloyd E. Steele and Frank De Casciaro
Steele was employed by the respondent on or about November 7, 1944, as an
experienced shovel operator, and was continuously employed thereafter until
February 5, 1944, when he was discharged. Shortly after his employment, as
previously stated, he in company with Robert Cook visited Hromek's office and
obtained union authorization' cards which he and Cook submitted to their fellow
employees for the latter's signatures. On December 20, as president and secre-
tary of the union local, respectively, Steele and Cook, asked Isaac Todd for
union recognition and a contract. Frank De Casciaro was standing near on
this occasion but did not participate in the conversation. Casciaro signed a
union authorization card on or about November 30, 1943; he testified that he
had been a union member since 1904. He was employed by the respondent at
the start of its Scammon operations, on or about August 1, 1943, as a laborer,
1
CENTRAL MINERALS COMPANY 769
and worked continuously thereafter except for, brief lay-offs until February 5,
1944, when he, also, was discharged.
On January 25, when Isaac Todd called the employees to his office , announced
a wage increase and submitted a petition which in effect stood for a revocation
or denial of union representation, Casciaro refused to sign the petition and
told Todd that the Union's "committee" would speak for him e
Throughout his employment with respondent, Steele had been accustomed to
load two trucks which he owned and which were operated by his sons, from
scrap coal in respondent's mine. Most of the coal so removed was delivered
to the homes of employees of the respondent , although Steele admitted that
some of the coal which he delivered to his own home he thereafter sold. Re-
spondent was compensated for all the coal thus removed at the reduced rate
allowed employees. It is clear that Steele's action in thus removing scrap
coal from respondent's mine for the use of himself and other employees, was
done with the full knowledge of the respondent and that the respondent at
no time prior to February 5, objected to Steele's conduct in this respect.' Re-
spondent's witnesses testified that the coal removed by Steele was not weighed
and was paid for on the basis of Steele's own estimate as to weight, but it is
clear that respondent neither required nor suggested any other method of pay-
ment and no contention was made at the hearing that respondent was not duly
compensated by Steele for the coal which he removed!
On February 4, 1944, after Steele had loaded one of his trucks in the mine for
his fellow employee, Cook, John Hamilton, respondent's superintendent or fore-
man, instructed Steele that he was not thereafter to load his own trucks in the
mine except before and after working hours. Steele protested and stated that
he would take the matter up with Isaac Todd. Hamilton testified that Steele
stated on this occasion that he would load his trucks anytime an employee wanted
coal and that he would take the matter to the office for a showdown. It was
also Hamilton's testimony that, just-prior to issuing the 'aforesaid instructions
to Steele, Steele had, delayed the loading of company trucks for the loading of
one of his own. According to Steele, he did not run his own truck in ahead of
a company truck for loading, but the company truck had broken down and its
driver was working on it at the time he brought his own truck in for loading.
Hamilton admitted that the driver of the company truck in question worked on
its meter but testified that the driver stopped the truck and began working on
it only after Steele had already driven his own truck in ahead of it. The under-
signed found Steele the more credible of the two witnesses and credits his version
of the incident. In any event, the record reveals only this isolated occurrence
when Steele was charged with having delayed the loading of company trucks in
order to load one of his own.
After work hours, Steele saw Isaac Todd, told the latter that he had a griev-
ance, and asked if Todd had issued the instructions which Steele received from
Hamilton with reference to the loading of the former's trucks. Todd indicated
that he would support Hamilton, since Hamilton was mine superintendent. He
also told Steele on this occasion, "Nobody is satisfied on this job, with the pay
and conditions of the work here," and advised Steele that he was going to
shut down the mine. Steele worked until noon of the following day when his
employment was terminated. Isaac Todd told Steele at the time of the latter's
discharge, ". . . when we pay a man top wages we figure that he should
8 See footnote 4, supra.
Isaac Todd testified , "We had no objection to him getting coal there "
e Isaac Todd testified , "I never questioned his honesty in that matter, no."
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work in our behalf and not against us," accused Steele of inducing Cook to join
the Union, and concluded: "That wasn't working for us when'you do those
things.",
As previously noted, all mining operations were closed down on February 5
and the employees laid off with the exception of 2 or 3 who were retained for
"cleaning up" operations. During the six days the mine was closed, most and
perhaps all of the employees laid off, with the exception of Steele, De Casciaro
and Cook, signed the petition which Todd had presented on January 25. Although
Cook never actually signed the petition, he indicated to Isaac Todd his willing-
ness to sign it after he had obtained his withdrawal from the Uniou 3O All
employees thus laid off were reinstated to their jobs when the mine resumed
operations after 6 days, except Steele and De Casciaro. Steele saw Isaac Todd
on February 11, reminded him that most of the man had been reinstated to their
jobs, and asked for reinstatement ; he returned with the same request on two
subsequent occasions, but was denied reinstatement. On previous occasions when
De Casciaro had been laid off, respondent called for him at his house to return
hiih, to work; on this occasion, although he applied. for reinstatement several
weeks after February 5, he was refused.
After resumption of mining operations, the loading shovel previously operated
by Steele, appears to have been run alternately by several employees, and later,
by Dick Hiatt who was first employed by the respondent in March, 1944. On
March 14, the motor of the loading shovel was damaged to the extent that it
could no longer be operated. Previous to that date, on March 7, the respondent
had executed a contract with Albert Mulvenna for the removal and loading of
coal at the Scammon mine. By the terms of this contract, Mulvenna furnished
his own shovel and labor in its operation for a stipend of $25 a day, on an 8-hour
day basis. The contract was executed by Mulvenna in the capacity of inde-
pendent contractor. Subsequent to March 14, the date on which responde'nt's
shovel was rendered inoperable, all coal was removed from the mine subject,to
the aforesaid contract, and Hiatt's employment was terminated. It is noted in
this connection that the Mulvenna contract represented the displacement of only
one employee, Hiatt, since except for the operation of the loading shovel respond-
ent continued to operate the mine with its own personnel under the immediate'
supervision of its foreman, Hamilton.
Isaac Todd asserted various reasons for Steele's discharge. He testified that
the incident when Steele allegedly serviced one of his own trucks ahead of a com-
pany truck was not the cause for the discharge but that Steele was discharged for
"general insubordination." The record, however, divulges no instance where
Steele refused to carry out orders of a superior. Todd further testified that he
closed the mine on February 5 because of employee "dissatisfaction," and that
Steele was the "biggest disturbance. He was always dissatisfied with every-
thing on the job." Foreman Hamilton testified that Steele loaded only from
3 to 5 carloads of coal a day, whereas on one occasion, probably when Steele was
absent, he (Hamilton) was able to load 7 cars. Isaac Todd, however, admitted
that he had never complained to Steele about the latter's work. "I never at any
time had any objections to his work, if it makes any difference," he testified.
Russell Todd testified that he regarded Steele as "detrimental to the morale of
the crew." The undersigned believes that respondent's objections to Steele, as
indicated above, cannot be dissociated from Steel's organizational activities.
This finding is based on Steele's credited testimony.
30 Isaac Todd testified that Cook told him that all he ,had wanted was a higher wage and
now that he had it, he would sign the petition.
CENTRAL MINERALS COMPANY 771
This is clearly indicated in Isaac Todd 's remarks to Steele, previously quoted, at
the time the latter's employment was terminated.
Upon consideration of the entire testimony and record , the undersigned finds
that the respondent discharged Steele because of his union affiliation and ac-
tivities.
With reference to De Casciaro 's discharge , Isaac Todd testified that De Cas-
ciaro complained of his health , that because of De Casciaro ' s age 11 and health
respondent had favored him in his work, and that he was unable to operate a
machine. It is clear that from the start De Casciard was employed as a common
laborer and the record does not show that he was ever absent from, or unable to
perform his duties because of age or ill health. As previously stated, on at least
two occasions when he was temporarily laid off, respondent called at his home to
return him to his job at the mine . It was De Casciaro's undisputed and credited
testimony that on several occasions respondent had advised him that his work
was satisfactory . Since the termination of his employment with respondent, he
has been engaged in regular employment as a laborer . Admittedly , work pre-
viously performed for respondent by De Casciaro , has since his discharge been
performed by employees several months junior to him in seniority.
Upon the basis of the foregoing findings of fact and upon the entire record, the
undersigned finds that except for his refusal to sign respondent 's petition there-
by repudiating his union affiliation , and his statement to Isaac Todd on January
25, that the Union's committee would speak for him, De Casciaro would have
been reinstated to his job when operations were resumed after the lockout of
February 5. The undersigned accordingly finds that the respondent discharged
De Casciaro because of his union affiliation and activities.
By its discriminatory discharge of Steele and De Casciaro , the respondent
discouraged membership in the Union and interfered with, restrained , and co-
erced its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
D. Mai 6, 1944, suspension of operations
On Saturday, May 6, a few days prior to the opening of the hearing on Tues-
day, May 9, the respondent suspended its operations at the Scammon mine.
Russell Todd testified that his 5 -year lease on the mining property was "suspended"
because of his failure to pay royalties for a period of 60 days and loss of tonnage
through operating practices . He admitted, however, that he intends to reopen
the Scammon mine "In a manner ." He further testified that further operations
under the lease would be up to him as an individual "to retain or regain the
confidence of the owners" to the extent that they would let him go ahead. The
following is an excerpt from ensuing examination by Board ' s counsel:
Q. And I am asking you this personally that, as far as you are concerned,
that depends on whether or not you have to deal with the union?
A. No. I have an alternative.
Q. What is your alternative?
A. To sell the coal to local trucks and not require any personnel .
Todd admitted that he had not as yet made an agreement with independent con-
tractors for the removal of the coal from the mine , but testified that he intended
to do so and that the mine could be operated more profitably on that basis. Both
Isaac and Russell Todd testified that operation of the mine had not thus far
been profitable. Admittedly, should respondent contract for the loading and
trucking of coal, it still would be required to maintain sufficient personnel for
stripping operations.
11 De Casciaro as 55 years old.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'It is clear from the foregoing that the respondent contemplates the rein-
statement of its lease and a resumption of operations. It has thus far mined
only about one-sixth of the total potential mining area held under the lease.
It cannot be said with any degree of certainty at this time, however, whether
the present suspension of operations, like that of February 5, is primarily an
expedient for evading recognition of and bargaining with the Union, or whether
it represents a contemplated shift in the method of operations due to economic
considerations. Since the complaint alleges no-unfair labor practices with re-
spect to the May 6 suspension of operations, which occurred subsequent to the
issuance of the complaint and only a few days prior to the hearing thereon, tjie
matter is considered herein only insofar as it has bearing on an appropriate
remedy.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operation of the respondent's business described in Section I,
above, have a close, intimate and substantial relation to trade, traffic and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist there-
from, and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the respondent on February 5, 1944, discriminatorily dis-
charged Lloyd E. Steele and Frank De Casciaro, the undersigned will recommend
that the respondent make Lloyd E. Steele whole for any loss of pay he may have
suffered by reason of the respondent's discrimination against him by payment to
him of a sum of money equal to the amount which he normally would have earned
as wages from February 5, 1944, the date of his discriminatory discharge, to
March 14, 1944, the date on which his job was eliminated by respondent's change
in its mode of operations, less his net earnings lz during the said period. The
undersigned will recommend that the respondent make whole Frank De Casciaro
for any loss of pay he may have suffered by reason of the respondent's discrimina-
tion against him by payment to him of a sum of money equal to the amount which
he normally would have earned as wages from February 5, 1944, to May 6, 1944,
the date on which respondent suspended its mining operations, less his net
earnings i2 during said period. It will be recommended further that if respondent
resumes operations at its Scammon Kansas mine, it thereupon offer Frank De
Casciaro immediate reinstatement to his former or substantially equivalent em-
ployment without prejudice to his seniority and other rights and privileges 1'
12 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers, Union, Local 2590, 8 N. L. R. B. 440. Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
is See footnote 12, supra.
14 since De Casciaro was employed as an unskilled laborer , and.it,appears that respondent
upon resumption of mining operations, regardless of its method of operations, will require
one or more laborers, the recommendation for the reinstatement of De Casciaro requires,
and is meant to require , no departure from normal and non -discriminatory practices in the
operation of the mine.
CENTRAL MINERALS COMPANY 773
The undersigned has found that the respondent suspended mining operations
from February 5, 1944, to February 11, 1944, for the purpose of coercing its em-
ployees into signing a petition repudiating or refraining from union representa-
tion, and for the further purpose of evading collective bargaining with the Union.
Employees thus locked out were discriminatorily deprived of employment for the
aforesaid period. The undersigned, accordingly, will recommend that the re-
spondent make whole each and every employee whom it deprived of employment
during the aforesaid period, with the exception of Steele and De Casciaro for whom
an appropriate remedy has been recommended above, by payment to each of them
of a sum of money equal to that which he would have earned during the 6-day
period aforesaid, less his net earnings" during said period.
It has been found that the respondent refused to bargain collectively with the
Union. At the time of the hearing the respondent had suspended mining opera-
tions but it is clear that it contemplates a resumption of operations in the future,
possibly with reduced personnel and changes in operating methods. Obviously
these are matters affecting the conditions and tenure of employment, and as such
are properly the subject of collective bargaining. It therefore will be recom-
mended that upon resumption of operations at its Scammon Kansas mine, the
respondent shall upon request bargain collectively with the Union as the exclu-
sive representative of its employees within the appropriate unit.
Upon the basis of the above findings of fact and upon the entire'record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District 14, is a larbor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of respondent's Scammon,
Kansas mining operations, exclusive of truck drivers, office personnel, and super-
visors with authority to hire or discharge or effectively to recommend the hire
and discharge of employees, constitute a unit appropriate for the purpose of
collective bargaining, within the meaning of Section 9 (b) of the Act.
3. United Mine Workers of America, District 14, was on December 20, 1943,
and at all times thereafter has been, the exclusive representative of all em-
ployees of the respondent in such unit for the purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the Act.
4. By refusing on December 20, 1943, and at all times thereafter, to bargain
collectively with United Mine Workers of America, District 14, as.the exclusive
representative of its employees in the appropriate unit, the respondent has en-
gaged in and is engaging in unfair labor practices, within the meaning of Section
8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Lloyd
E. Steele and Frank De Casciaro, thereby discouraging membership in United Mine
Workers of America, District 14, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
6. By discriminating in regard to the hire and tenure of employment of its
employees by closing down its mining operations from February 5 to February
11, 1944, (hereby discouraging membership in United Mine Workers of America,
District 14„the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (1) and 8 (3) of the Act.
7. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
15 See footnote 12, atcpra.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent , J. R. Todd, doing business as Central
Minerals Company, his agents, successors , and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Mine Workers of America,
District 14, as the exclusive representative of all of its production and mainte-
nance employees , exclusive of truck drivers, office personnel , and supervisors
with authority to hire or discharge or to effectively recommend the hire and
discharge of employees ;
(b) Discouraging membership in United Mine Workers of America , District
14, by discharging , laying off , locking out or refusing to reinstate any of its
employees , or in any other manner discriminating in regard to their hire and
tenure of employment or any term or condition of their employment ;
(c) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, or to join or assist United Mine Workers of America, District 14, or
any other labor organization , or to bargain collectively through representatives
of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Upon resumption of mining operations at its Scammon , Kansas mine,
upon request bargain collectively with United Mine Workers of America, Dis-
trict 14, as the exclusive representative of all its production and maintenance
employees , exclusive of truck drivers , office personnel , and supervisors with
authority to hire or discharge or to effectively recommend hire and discharge
of employees , with respect to rates of pay , wages, hours of employment, and
other conditions of employment ;
(b) Upon resumption of mining operations at its Scammon , Kansas mine,
offer to Frank De Casciaro immediate and full reinstatement to his former or
substantially equivalent employment without prejudice to his seniority and other
rights and privileges ;
(c) Make whole Frank De Casciaro for any loss of pay he may have suffered,
or may hereafter suffer, because of respondent 's discrimination against him,
by payment to him of a sum of money equal to that which he normally would
have earned as wages from February 5, 1944, the date of his discriminatory
discharge , to May 6, 1944, the date on which respondent suspended its mining
operations ; and from the date of respondent 's resumption of mining operations
to the date of the offer of reinstatement , less his net earnings 16 during the
aforesaid periods;
(d) Make whole Lloyd E. Steele for any loss of pay he may have suffered by
reason of the respondent 's discrimination against him , 6y payment to him of a
sum of money equal to that which he normally would have earned as wages from
February 5, 1944, the date of his discriminatory discharge , to March 14, 1944,
less his net earnings 14 during said period;
16 See footnote 12, supra.
11 See footnote 12, supra.
3
CENTRAL MINERALS COMPANY 775
(e) Make whole each and every one of its employees laid off on February 5,
1944, with the exception of Frank De Casciaro and Lloyd E. Steele for whom
provision has been made in paragraphs (b), (c) and (d) above, for any loss
of pay they may have suffered by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal to that
which he normally would have earned as wages from February 5, 1944, to Febru-
ary 11, 1944, the period of their discriminatory lay-off, less his neat earnings 18
during said period ;
(f) Upon resumption of operations, post immediately in places of prominence
at its Scammon, Kansas mine, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct from which it has been
recommended that it cease and desist in paragraph 1 (a), (b) and (c) of these
recommendations ; (2) that the respondent will take the affirmative action .set
forth in paragraph 2 (a), (b), (c), (d) and (e) of these recommendations;
and (3) that the respondent's employees are free to become or remain members
of United Mine Workers of America, District 14, or any other labor organization
of their choice, and that the respondent will not discriminate against any
employee because of membership in or activities on behalf of any labor or-
ganization;
(g) File with the Regional Director for the Seventeenth Region on or before
ten (10) days from the receipt of this Intermediate Report a report in writing
setting forth in detail the manner and form in which the respondent has complied
with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notify said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of an order transferring the case to the Board.
WILLIAM E. SPENC M,
Trial Examiner.
Dated July 21, 1944.
18 See footnote 12, supra.