Crow Bar Coal Co.

National Labor Relations Board - Board Decisions

Mar 27, 1943

48 N.L.R.B. 660 (N.L.R.B. 1943)

In the Matter of JOSEPH STREMEL, doing business as CROW BAR COAL
COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT 15
Case No. C-2481.-Decided March 27, 1943
Jurisdiction : coal mining industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; threats of discharge
for union activ ity;, interrogation concerning union activity.
Disc, in,ination: lock out and discharge of eight employees because of their union
membership and activity.
Remedial Orders : reinstatement of one discharged employee with back pay ; back
pay awarded three employees already reinstated; back pay awarded to four
employees not desiring reinstatement.
DECISION
AND
ORDER
On January 7, 1943, the Trial Examiner issued his Intermediate
Report 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 therefrom and take certain
Affirmative action as set out in the copy of the Intermediate Report
attached hereto. Thereafter the respondent filed a brief and excep-
tions to the Intermediate Report. The Board has considered the
rulings of the Trial Examiner at the hearing and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed. The
Board has,considered the Intermediate Report, the respondent's brief
and exceptions, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
with the exceptions and qualifications noted below in ' paragraphs
2 and 3:
1. The respondent denies that he is engaged in commerce within
the meaning of the Act. He maintains that he does not' purchase a
substantial portion of his supplies outside the State of Colorado, and
that his sale of coal to the Denver and Salt Lake Railway Company,
which operates solely within the State of Colorado, is not sufficient to
bring his operations within the Board's jurisdiction. We agree with
the Trial Examiner that the respondent is subject to the Act.
48 N. L. R. B., No. 83.
660
"CR'OW `BAR"'COAL:-`COMPANY`, 661;
So far as ,+the^Denver, and Salt'Lake Railway Company is'. employed'
in transporting goods corning' from or 'destined for, other States, it is-;
engaged -in' interstate commerce ." • The-respondent's, operations 'thus
-d•iffei'' in no material - respects from- those- of 'an, intrastate -public-utility'
or power company serving concerns engaged in interstate commerce.2
It is well settled that "the operation of the Act [does not] depend-on,
any particular volume of commerce affected more than that-to which-
the courts- would apply the maxim de minimis." N. L. R. B. v.
Fainblatt, 306- U. S. 601, 607.3 Here, interruption by unfair labor
practices of the respondent's sales to,the Denver.and Salt Lake Rail-
way Company would affect the'annual interstate movement of approxi-
mately'Mm,;O0•tons'of freight, a volume of commerce* which obviously,
cannot be treated as de minimis 4 The fact that the Railway Company,
might'be'able to-secure the coal from other sources -in the Sate in the,
event` of a stoppage of-the respondent's operations ; is wholly imma-
terial and "may not be considered in'determining the jurisdiction of
the Board." . Cudahy Packing Co. v. N. L. R. ,B., 118 F.• 2d 295, 299
(C. C. A. 10).a Nor is it material that the respondent's sales to the
Railway Company are made through a brokers' Upon all the facts,
we are satisfied and find that stoppage of the respondent's operations
by industrial strife' would materially obstruct and burden interstate
commerce .7
2. The Trial Examiner found that Robert Frink applied to Forema+n
Evans for reemployment and that Evans stated to Frink that he had
no authority to put Frink back to work because Stremel had instructed
him not to hire "any of the twelve fellows that joined the Union."
He fixed the date of this incident variously at February 10, 1942, and
' See, e. g.. The Daniel Ball,' 77 U. S. ( 10 Wall. ) 557, 565'; The Minnesota Rate cases
230 U. S. 352 , 390; N. L. R. B. v . Central Missouri Telephone 'Co., 11 5 F. (2d) 563, 565
(C. C.A.8).
2 See, e. g., Consolidated Edison Co . v. N. L. R. B, 305 U S. 197 ; Southern Colorado
Power Co. Y . N. L. R. B., 111 F. (2d) 539' ( C. C. A. 10 ) ; cf. Kirschbaum v.,Walling , 62 S. Ct.
1116. -
'-The,power 'of.the 'Board "extends to any and all enterprises without regard to their
magnitude -in-which labor, trouble might reasonably 'be said, to have the probable effect of
.directly interfering with the free flow of any interstate commerce." N. L . If. B. v. Gulf
Public Service ' Co', 116 'F. (2d) 852 , 855 (C. C. A. 5). -
'De minimis " in the law has always been taken to mean trifles-matters of few dollars
or less" N. L . R. B. v. Suburban Lumber Co , 121 F. ( 2d) 820; 832 , cert. den. 314 U. S. 693.
-5N. L. If. B . v. Bradford Dyeing Ass'n, 310 U: S. 318, . 326; N. L. R.-B. v. Henry Levaur,
Inc., 115 F. ( 2d) 105, 109 (C. C. A. 1), cert. den. 312-U . S. 682.
Compare Santa Cruz Fruit Packing Co . v. N. L. R. B., 303 U. S. 453, 463 : Fainblatt case,
supra, 306 U.S. at 605 ; N. L. R. B! v. Sunshine Mining Co ., 110 F. ( 2d)'780, 784 (C. C. A.
9), cert. den . 312 U.S. 678.
Compare Wickard V. Filburn, 63 S. Ct., 82, 89 , where the Court stated that "even If-
appellant 's activity be local and though it may not be regarded as commerce , it may still,
whatever ; its nature, be reached by Congress if it exerts a substantial economic effect on
interstate commerce, and this irrespective of whether such effect is what might at some .
'earlier -tidie - have been defined as 'direct' or 'indirect.'
See aiso ; Clover Fork Coal Co. , v. N. L.,R. , B., 97 F. ( 2d) 331, 334 ( C. C. A. 6 ), where the
Court Giated• that "coal mining is also a basic industry of'the United States, the ramifying
activities of which affect interstate commerce at every point."
662, DECISIONS OF-NATIONAL LABOR,-RELATIONS BOARD
February-16, 1942:. Upon consideratio'n' of• all-the evidence 'we find
that-this incident occurred on February.16,,1942.
3. The Trial Examiner recommended. that the remedy to be applied
in the cases of Lee Fread, Warren Fread, Earl, Hindman; .and .R. C.
Frink, who have obtained other employment since their discriminatory,
discharges and do not desire to be reemployed by the respondent,
include an offer of reinstatement by the respondent to each'of them ,on.
condition that each apply therefor before February 1, 1943, and a,
provision that the extent of the period covered by the back-pay, order -
be contingent in each case upon whether or not applicatioh,for rein-,
statement is made within the time -mentioned. We do not agree'"with,,
the Trial Examiner that the proposed remedy will effectuate the
policies of the Act. Since these four employees do not desire reem-
ployment by the respondent, we shall not require the respondent tot
offer them reinstatement. Accordingly, we shall direct the respondent
to-make each. one of them 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 that amount which he
normally would have earned as wages from the date of such discrimi-
nation to the date upon which he started working steadily in the
employment in which he was engaged at the time of the hearing, less
his net earnings during said period.
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, Joseph Stremel, doing--
business as Crow Bar Coal Company, his agents, successors, and
assigns shall:
1. Cease and desist , from :
(a) Discouraging membership in United Mine Workers of America,
District 15, or any -other labor organization of his employees, by dis-
charging any of his employees or in any other manner discriminating
in regard to their hire and tenure of employment or any term or con-,
dition of their employment;
(b) In any other' manner interfering with, restraining, or. coerc-
ing his employees in the exercise of the right to self-organization, to
form, join, or. assist labor organizations, to, bargain collectively,
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or, other
mutual aid or protection, as guaranteed in Section, 7 of the National
Labor Relations Act. - ,
2. Take the following 'affirmative action "which the Board finds 'will-
effectuate the policies of the Act:
:CROW 'BAR' COAL :COMPANY _ =- - 663
(a) Make whole Sumner Hockett,'Clarence Anderson, and Rinard
Saylor and each of. them for any loss of pay they may have suffered
by reason, of the respondent's discrimination against them, by pay-
=ment to each of them of- a 'sum of money equal to that which he
normally would have earned as wages from January 15, 1942, to the
'date of' his reinstatement, less his net earnings during such period;
(b) Make whole Lee Fread, Warren. Fread, Earl Hindman, and
.R. ,C: Frink and each of them 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 January 15, 1942, to
the date upon which he started working steadily in the employment
in -which he was engaged at the time of the hearing less his net
earnings, during such period;
(c) 'Offer to Carl Ward immediate and full reinstatement to his
former 'or substantially equivalent position, without prejudice to his
seniority or other rights and privileges;
(d) Make whole Carl Ward for any loss in earnings he may have
'suffered by reason of the respondent's discrimination against him, by
payment to him of a' sum of money equal to that which he would
normally have 'earned as wages during the period from January 15,
1942,. to the date of the respondent's offer of reinstatement, less Us
net earnings during such period;
'(e) Post' immediately in conspicuous places throughout his mine,
near Hayden,' Colorado, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to his em=
,ployees' stating that (1) the respondent will not engage in the con-
-duct from which he is ordered to cease and desist in paragraphs 1 (a)
.and (b) of this Order; (2) that the respondent will take the affirma-
tive action set forth in paragraphs 2 (a), (b), (c), and (d) of this
Order' ; 'and . (3) that the respondent's employees are free to become
.or remain members of United Mine' Workers of America, District
15,.or any other labor organization, and that the respondent will not
discriminate against any employee because of his membership or activi-
ties in 'any such organization; -
(f), Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Willard Y. Morris and Mr. Elmer L. Hunt, for the Board.
Mr. J. H.-Boutcher, ,of Denver, Colo., for the respondent.
Mr. John W. Harmon, of Oak Creek, Colo., for the Union.
664 DECISIONS OF :NATIONAL LABOR 'RELATIONS BOARD
STATEMENT OF THE CASH
Upon an amended charge duly filed, on December 8, 1942, by United Mine Workers
of America, District 15, herein called the Union, the National Labor Relations
.Board, herein called the Board, by its Regional Director for the Twenty-second
Region (Denver, Colorado), issued its complaint, dated December 9, 1942, against
Joseph Stiemel, doing business as Crow. Bar Coal 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)
and (3) 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, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent : (1) while engaged in the operation' of his coal mine, near
Hayden, Colorado, locked out and discharged eight named employees 1 because
they joined and assisted the Union and engaged in concerted activities with his
other employees for their mutual aid and protection; and (2) since January 1,
;1942, urged, persuaded, and warned his mine employees to refrain from joining
and maintaining membership in the Union and threatened the said employees
with' discharge if they joined or assisted the Union or if'they engaged in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection. On or about December 18, 1942, the respondent filed his answer
denying that he had engaged in or was engaging in the.alleged unfair labor
practices. The answer averred that the respondent was not,engaged in interstate
commerce within the meaning of the Act and therefore the Board lacked
`Jurisdiction.
Pursuant to notice, a hearing was held on December 21 and 22, 1942, at Steam-
boat Springs, Colorado, before Howard Myers, the undersigned. Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondent
-were represented by counsel, the Union by a representative. The said counsel
and the representative participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing upon
'the issues was afforded all parties. At the beginning of the hearing, on the
motion of the respondent, all prospective witnesses were excluded from the
-hearing room until their turn to testify. At the conclusion of the Board's case,
counsel for the Board moved to conform the pleadings to the proof. The motion
was granted without objection. Counsel for the respondent then moved to dismiss
the complaint on the grounds of lack of jurisdiction and also, for lack' of proof.
The motions were denied. At the conclusion of the hearing, the parties were
afforded an opportunity to argue orally'before the undersigned. Counsel for the
Board and for the respondent participated in such oral argument. The parties
were then advised that they might file briefs with the undersigned on or before
December 28, 1942. A brief has been received from respondent's counsel.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT'
Joseph 'Stremel, doing business as 'Crow 'Bar Coal Company, is engaged in
mining and selling coal, has his principal office and retail'coal yard in, Denver,
I Lee Frend, Warren Frend. Summer Hockett, Earl Hindman, Carl Ward, R. C. Frink,
Clarence Anderson, and Rinard Saylor.
2 The findings in this section are based upon stipulations entered into at the hearing by
counsel for the Board and for the respondent.
CROW BAR COAL COMPANY 665
Colorado,,and owns and operates a coal mine near, Hayden, Colorado s During
1941,. the respondent mined and sold approximately 9,000 tons of coal, approxi-
mately 25 percent of which was slack coal. About 80 percent of this slack coal
was sold and delivered by the respondent to the Denver and Salt Lake Railway
Company- through J. M. Moore, a coal broker. The balance of the coal mined by
the respondent was sold directly to local consumers^at his retail coal yard located
in Denver. During the same period, the respondent purchased raw materials,
equipment, and supplies costing in excess of $3,000, from J. M. Moore ; approxi-
mately 2 percent of the said purchases originated in States other than the State
of Colorado. During 1942, the amounts, destinations and origins of the respond-
ent's purchases and sales were substantially equal and similar to those of 1941.
The Denver and Salt Lake Railway Company operates a freight and passenger
railroad line from Denver to Craig, Colorado, with refueling stations at Utah
Junctibn, Hippsburg, Tabernash, Sulphur Springs and Denver, all of which places
are located in Colorado. During 1941, the Railway Company purchased 108,948
tons of slack coal, which it used for the operation of its engines, 2,£03 81 tons of
which coal were purchased from the respondent. During the same period, the
Railway Company transported over its lines 1,009,047 tons of freight, 689,612 tons
of which "were in interstate commerce and 319,435 tons were in intrastate com-
merce." During 1942, the business of the Railway Company was substantially
equal and similar to its interstate and intrastate business as in 1941.
The undersigned finds that the respondent's operations attect commerce within
the meaning of, the Act.4
II. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America, District 15, is a labor organization admitting
to membership employees of the respondent.
I
III. THE UNFAIR LABOR PRACTICES
Interference, restraint, and coercion; the lock-out and discharges
There is no evidence in the record of any union activities among the respond-
ent's mine employees prior to January, 1942. ' On January 10, 1942, John Harmon,
the Union's district representative, pursuant' to a request made by some of the
employees, went to the mine during the employees' lunch period. There, after
introducing himself and Ralph Ingle, who accompanied Harmon, to Jack Evans,
the'mine foreman, Harmon asked Evans for permission to speak to the men.
Evans, being-under the impression that Harmon had stated that he and Ingle
were insurance agents, told Harmon that the men were eating their lunch in the
engine house and that he might go in there. Harmon and Ingle then went into
the engine house and, after discussing the unionization of the mine with all the
men working that day,' passed around a paper captioned :
I HEREBY DESIGNATE AND SELECT, THE UNITED MINE WORKERS OF AMERICA, DIS-
TRICT 15, AND JOHN W. HARMON REPRESENTATIVE, to represent me for the pur-
pose of collective bargaining with respect to rates of pay, wages, hours of
employment and other conditions of employment.
8 This proceeding is exclusively concerned with the employees of the respondent's coal
mine.
See N. L. R. B. v. Gulf Public Service Company, 116 F. (2d) 852 (C. C. A. 5) and
N. L. R. B. v. Suburban Lumber Company, 121 F. (2d) 829 (C. C. A. 3).
s At that time there were 16 persons employed at the mine.
666 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
All the 10 employees present signed the paper. Harmon then administered to
the men the obligation of,the Union which, according to Harmon, made,-them
members thereof.°
As the men were returning to work, at the end of the lunch period, Harmon
stood, outside, of the engine house discussing with one of the men the weight of
a certain cdal'ear•when the car was loaded 17'inches above its top. Evans,,who
overheard the obligation administered and also what Harmon said about the
weight of the car, approached Harmon and the men with whom Harmon was
conversing and, according to Harmon, the following ensued :
... And one of the men, I don't know who it was, asked me what that car
would weigh loaded with about 17 inches above that top of the car, and I
glanced in the car, I looked at the dimensions of it, and just offhand, I said,
"Well, I would be of the opinion that it would go two ton, the cur would weigh
two ton loaded." And about that time why the mine foreman, Mr. Evans,
I saw him then for the first time, and he said 'to me, "You lie, you pup "
By Trial Examiner MYERS :
Q What?
A. "You lie, you pup." And I was kind of amazed that he would say that
to me inasmuch as he was so courteous to me at the lower part of the prop-
erty, and well, I saw that he was angry right away, and well, I said, "Maybe
I might be mistaken, but it is my honest opinion that the man loading this
car 17 inches above the bed, that the car would weigh two ton," and he went
into sort of a rage. - -
By Mr. MORRIS :
Q. What did he say?
A. Well, he said, he told me again that I had lied He said, "You are,a
skunk and I want you to get off the property before I kick you off." And I
said, "Well, I haven't no desire to remain upon the property. I am sorry
that you are so confused and angry." And then he ordered me off the property
again, and about that time I started to going off the property. The boys
were entering into the tunnel to go to work. _
Q Did you get off the property?
A. Well, as I was leaving and the men were entering the mine and the
foreman was going, we were parting there, I know I said out loud to where
the men could hear me and so that Mr. Evans could hear me, that these men
were members of the United Mine Workers of America and that I didn't
want these men to be mistreated in any way.
Evans' version of what took place, between Harmon and him is as follows :
Q. Was he [Harmon] talking to the men immediately afterwards about
a car which happened to be standing there?
A. Yes, Sir.
Q. What did he speak about, what was the nature of his conversation?
A. He was telling the men they were loading two tons for 50 cents
Q What did you say?
A. I told him, where did he get all that stuff
Q. Well, go ahead and tell just what was said, tell the whole conversation.
A. I told him that cur did not, would not hold two ton. He asked me
how did I know, and he said that box is thirty hundred. That box was not
thirty hundred, and we had an argument, and I told him to get off _the hill,
° Later in the day, Harmon visited the homes of three other employees and secured their
signatures to the paper and also administered the obligation to them.
CROW : BAR COAL' COMPANY- ' 1 667
,`he misrepresented himself, to go off the hill, and he turned around.to me-and
told me that , I remember , "If you discriminate against one of these men
I will bring this in front of the Labor Bo'ard."
,The undersigned -finds that Harmon's testimony with regard to this incident
to be substantially in accord with the facts . Evans did not impress the under-
signed as a forthright and honest witness . His testimony contains many con-
tradictory and-inconsistent statements regarding important matters ? Moreover,
Harmon ' s testimony regarding his argument with Evans was corroborated, by
employees Earl Hindman and Sumner Hockett.
That evening , January 10 , Evans wrote Stremel, who was then , in Denver, that,
the men had joined the Union and that Stremel "had better come , up to the
mine "
Between the 10th and the 15th of January Evans made many attempts to
induce the men' to withdraw from the Union Thus, according to employee
Earl Hindman , Evans told him and employee Rinard Saylor ,' the day after they
had joined the Union , that if the Union started any trouble he [Evans ] would
discharge all the men , "one at a time ." Hindman also testified that on January
14, Evans asked him whether he had attended the union meeting the previous'
night and that when he told Evans that he had , Evans then said that he formerly
was a , member of , the Union , but that he "figured it didn't amount to much `now"
and therefore lie was not a member any more . Hockett testified that shortly
after " he joined ` the Union Evans told him that - the men made a mistake in
becoming members because they "wouldn't be as well off in the union " as they
then were, because they would not receive any- benefits from it and would have
to pay "union dues and one thing and another " Regarding a conversation
he had `with Evans in the mine on January 10, Warren Fread testified as
follows :
By Mr. HUNT (Board's Counsel) :
Q. Mr Evans, sometime before noon, or right after noon, didn't you stop
and have a conversation in the mine with Henry Mathis and ask him
.whether or not he was going to stick with the boys, and you wanted to
know so-you could tell Mr. Stremel went he went in the afternoon to call
Denver for other men?
A. No, sir; I had no conversation with Mr. Mathis whatever.
Q Nor anybody else that day?
A. That day I never spoke to no man belonging to the union.
Q. When was it that you told Mr. Saylor that he was working on company
time and that he couldn't belong to the union and he might as well give
it up?
A. No, I didn't. I think I says, "Saylor, I don't think you have any
business to sign up with the union. You, were a monthly man, and it used
to be that way, I don't know whether it is any more or not, that a company
man and a man paid monthly should not belong to a union.
Q. Did you tell him that during the 15th day of January, 1942?
A. On the 15th day of January, 1942, I asked him to change his mind,
to reconsider, and he had better work on, I says to him.
Well,'we [Fread and his brother] were working in there, and Mr. Evans
came in and he told us that he wished that he wouldn't stay'with the union
and he said among other things, I don't remember just all that was said, but
one thing he did say, "Your name is too good around'to here to have it drug
through any trouble like this." And I told him I would rather have it drug
7 The following is illustrative of the inconsistency with which Evans testified.
I
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through a little mess out there then to have it black-balled against all the
big mines.,
While not specifically denying the statements attributed to him by Hindman,
Fread, and` Hockett, Evans testified that at no time did he ever attempt to
persuade the men to withdraw from the Union and that he never advised the
men that "they would be better off if they didn't join the union." Under cross-
examination, however, he admitted that he discussed the Union with some of
the men and that he told Saylor "I don't think you have any business to sign
up with the union. You were a monthly man ... and a man paid monthly
should not belong to a union." Hindman, Fread, and Hockett were candid and
forthright witnesses and the undersigned finds that Evans made the statements
which they attributed to him.
At about 10 o'clock on the morning of January 15, Stremel arrived at the
mine. After discussing with Evans the union activities of the men and being
informed by Evans that "all the mine had signed up," Stremel requested Evans
to call all the employees together in the engine house, which was done and
about a dozen employees assembled. According to the testimony of Saylor,
the following ensued there :
A. Well, we were called out of the mine around nine or nine-thirty
o'clock \iu the morning by Mr. Evans, and he said Mr. Stremel was there,
to see us, wanted to hold a meeting out in the hoist room, ands we went
out and Joe said-
By Trial Examiner Meats :
Q Who is Joe?
A. Joe Stremel. Mr. Stremel said that he couldn't operate under the
union, that is compete with the union scale, and that he didn't have the
machinery to do so, couldn't turn the tonnage, and. if we was going to stay
with the union he would close his mine down. And nobody said anything
but Mr Hindman.
Q. Which Hindman was that?
A. Earl Hindman. He spoke up and he says, "Well, I can't speak for
the rest of the boys, but," he says, "I know where I stand." And he says,
"We will go back to work."
Q. Who said that?
A. Earl did, so he started out and we all followed him.
Q. (By Mr. MORRIS ) Was anything said about working until noon on
that day?
A. Yes, sir
Q. Who said that?
A. Mr. Stremel told the boys that we would work until noon and then
he would close her down, and then afterwards, before dinnertime, why
Mr. Evans came down and asked us boys if we would work until night to
finish our shift, you see, and we told him we would, agreed to it, and that
was all that was said there.
Q. Did you work your full shift that day?
A. Yes, sir.
-Rocket testified regarding this meeting as follows :
Well, he [Stremel] said that he had come up there on account of we joined
the union, and he said that he couldn't pay the union wage, his turn-over
wasn't large enough, and he didn't have the machinery to get enough coal out
CROW "BAR COAL COMPANY-' 669'
so he could pay the union wage ,-and he said . he would be glad to use'us at
the same wage we had been getting if we wanted - to-stay. I.think . he said
we would have to get out of the union though.
Q. Well, did he or didn't he say that?
A. Well, I think he did. -
.,Q. That is -your recollection, is it?
A. Yes. , . -
Q. All right.
A. We couldn 't remain union men and keep on, working , but we could go
on under our present wage scale and work if we would get out of the union.
. Q Well, after he- finished his talk to you , did anybody say anything
about going to work or going back to work or anything?
By Trial Examiner Mraas :
Q. Before you go to that Mr. Hunt, Did Mr . Stremel say anything else
at that time? ,
A. Yes.
Q Tell us everything he said at that time.
A. Earl Hindman said that his mind was made up, he would stay in the,
union, and the rest of us all agreed we would stay in the union , and so, I.
don't just remember how it did come up, but I know he told us he would close,
the mine down there, he couldn 't pay the union wages, he would close the
mine down then. '
Q. Who said that?
A. Mr. Stremel: - -
Q. Then what was said?
A. Well, he said that we could-He said he could close the mine down
Q
and we could go then or stay until noon, whichever we wanted to do, and
Jack Evans spoke up then, and he wanted us to stay until noon. There
was a car of coal on the track partly loaded. So we went down and agreed
to -stay ^until-'noon, and then Dir. Evans came down and asked us to stay,
the remainder of the day, which we did.
Stremel testified that the following transpired: -
A. "Gentlemen, I understand you are organized" I says, "Gentlemen,"
again, I says, "this is a free country. You can do as you please. I can't'
help if you join the union. I have nothing against the union. You can do
as you please." But, I says, "Men, you know well that I can't pay those
wages. I haven't, the equipment in the mine today. , I have one cutting
machine." I says, "We have one car we pull at one time. We pull one,car
at a time." I says, "We pull this car 600 feet. You are standing in that
room waiting until this car is pulled out and dumped, and then. wait until
it comes back, until you start loading." I says, "If my mine was equipped
that I could pull maybe eight or ten cars, and had. loading equipment like
big mines, I would be glad, and I know that I could pay those wages and
even more."
Q. Go on, what else was said? Tell about what you spoke of, to-,the
union there, about closing down. - -
A. Lsaid, "Men,"-I says, "if I am forced to and have to pay this scale," I
says, "I am forced to close the mine down. I can't pay it." And I says,,
"I- am willing to show the United Mine Workers my,books if they want'to.
see them and show-them what 'l can pay.
670! DECISIONS O'F"NATIONAIJ'L BORJRIJLATIONS BOARD
Q. (By Mr. Boutcher)' Was anything,said-about the fact that you could
continue the wages, they were,mal^ing?
A. I,says, "Men I think you are making pretty goodfmoney."' 'I says,
"If you fig-tire it out," I says, "L think you are making money. In fact," I
says, "I think you are making more money than I am."'
A. I believe that is as far as-I told them again, I says, "Now men, I have
nothing against the union." I says, "I-have been a hard working man all
'my' life; myself." I%says; "I have nothing "against Organized labor.'! I
says, "But what I can'pay,' I can pay." I says, "I says,, "I will be glad to
-pay, all I can, and I am paying the 'limit today." I says," "I can't pay
any more the way my'•mine,is equipped. So," I says, "boys, I• would--like
to know what you want to do. I want you to let, me know." So Earl
Hindman ; spoke' up, he says, "I' have made my mind up. - I am- quitting."
And he says, "I don't know what the rest of them is going to do." So he
starts down the mine, and the rest of them follows him down.
According to Evans, Stremel also' told the men: "Boys," he says, "boys, I
would like to know by dinnertime what you are going to do." Employee Mathis,
a witness 'called by the respondent, testified as follows regarding what Stremel
said at that meeting : -
A. . . . He sass, "I can't pay these wages. I have no objection to,youur
joining the union, that is your own privilege, but I can't pay,union wages."
A. He says, "I cannot compete with hand loading with; machinery,' that a
machine can turn out 'more coal than I can with my crew."
A. He said if he had to pay those wages he would' have to close the mine
down because he couldn't pay those wages and keep operating.
At the end of the shift that day, January 15, the men gathered in the bunk- 9
house, where, according to Saylor, the following took place :
A. We went out to the mine down to the bunkhouse. I wanted to see
Mr. Stremel. I called for him through Mr. Evans. So Mr. Evans- called
him-over'to bunkhouse, and I said to him, "How is it, Joe?" "And he said,
"It is just like I told you' before,- and I cannot compete with union scale
and if youLet's see, "I cannot compete with union scale," and he
says "it is just up to you then." - He says, "You can work for me at my
wages or' if you stick with the union I will have to close the, mine down,"
or "I will close the mine down." And I says, "Well,,, do we come to work
tomorrow, Joe?" And he says, "Well, it is up to you. If you want to work
for my wages, why then, if you don't, I will close the mine down."
Q. When you said=
Trial Examiner Myms. He didn't finish.
Q (By Mr. Morris) Did you finish?
A. He said if we stuck with the union he could not operate, he would
close the mine...
Q. Was that the last thing he said?
A. When he started to go, yes. 'Then I says, "0. K., boys, let's' go."
Rocket testified to substantially the same effect except that he stated that Stremel
did not again say that the men "could not stay with.the union and work for him."
According to Stremel the following ensued at that meeting:
_,CROW ,BAR'_ COAL: COMPANY ;^70 "671
A... . When I came into the bunkhouse, Mr. Saylor spoke up, he says,
,1:,"Joe,, is this. all'?" I says, "No, boys, this job is yours as long as you -want
it, but I can't pay that high wages." Then I said again about the machinery,
I:will repoat.it if you want me to. I-told them the same thing that I told
them up there about the machinery, that I couldn't compete, and I added
this. I says, "I have talked to a lot of big operators that has got machinery
.in their mine. Where they used to work 18 and 20 men, now they are working
four men,, where they were working 18, and they are turning out more coal
with four men. So how can I compete, hand-loading with those machines?"
I says, "If I was equipped like those big mines, 1 would be glad to pay those
wages I would be making more money than .I €m today." : I says, "That
is the reason why they can pay those, high wages. They have got machinery
.. and Lhayen't. , I have got to do everything by hand."
Q. Was there anything else?
A., Yes. . When I explained that to them, then Mr., Saylor says, , "Let's
go." Saylor went out then, and Mr. Hindman got toward the door, and
he turned around and stood up like this, and says, "When can we get our
money'?" I says, "Mr. Hindman, as soon as I-I will call up long distance
tonight; and then •I will turn the time in over long distance telephone."
That isall.' ,'
Evans' version of- what transpired at that meeting is similar to that of Stremel.
. -The .undersigned finds that Stremel made the statements attributed to him
-by. Hockett and Saylor. Their version of what took place on January. 15, is
' corroborated, in the main, by the testimony-of six other Board witnesses. 'More-
, over; during the oral argument at the hearing, counsel for the respondent stated
that the testimony of Hocket and Saylor "corresponds pretty closely with the
circumstances" that took place at the mine on January 15.8
On January 16, only. 4 employees reported for work. The duties of these
employees did not take them into the mine at all. The mine itself was completely
,-closed. On January 17, the mine reopened- with the four men who worked the
previous day, and with new men secured from Denver.
The undersigned is convinced and finds that the respondent shut down his
mine,on January 15, 1942, for the purpose of discouraging his employees from
joining or remaining members of the Union The facts described above leave
room for no, other conclusion. The respondent's, contention that he did not
shut-down the mine, but that the employees struck or quit work is not supported,
by the facts, and is entirely incredible.' At no,time did the employees threaten
to strike or quit work nor did they,, either individually or collectively,, demand
a, wage • increase. The Union made no demands upon the respondent. While
8 Regardini , the testirirony of Hockett and Saylor with respect to what occurred at the mine
on January 15, counsel for the respondent stated in his oral argument. '
Now, there is the testimony of Mr. Sailor and Mr. Hockett who are now working at the
Crow Bar Mind. , Now, I don't know , perhaps ,the Government might -claim that t''ey
are,working for the employer and they didn 't want to. testify strongly against Mr.
Streniel ' as many of the others did. I believe that their testimony , if examined, corre-
sponds pretty closely with the circumstances . ' They made some statements , and they
did say, they tried to impress on the 'court , that it wasn't-Mr Hockett didn 't do'that}-
but Mr. Saylor tried to impress on the court that really Mr. Stremel fired them because
they - belonged to the union , but he did say Mr. -Stremel-said it was on account of the
increase in wages, and when I tried -, to pin him down on this, which , one of the two he
really believed , he wouldn 't commit himself.
sAockett testified , and the undersigned , finds,'that during the`afternoon 'or January 15,
Evans told him that Stremel , "was goingfto town to phone fo'r a new crew ." Stremel's
testimony ,.tliat'he did not telephone to!Denver:for a "new'crew" until ' afteir the men left
the mine, is not credited . It is apparent to the undersigned that Stremel had determined
prior to the end of the day to replace his men if they refused to renounce their union
membership.
.672 , DECISIONS -OF-'NATIONAL' LABOR RELATIONS BOARD
• Stremel might have believed that the Union would, in the near future, demand
wage increases his statements to his. employees on January- 15 were unwarranted
and were made for the sole purpose of discrediting the Union in the eyes of his
.employees. The shut-down was a lock-out, and as such was an unfair labor
practice within the meaning of the Act m
The above findings are further buttressed by the events which occurred sub-
sequent to the lock-out, and which clearly show that Stremel's opposition to the
Union was the true motive for closing the mine. Thus, on February 4, Evans
and Hockett had a conversation. - Hockett testified, and the 'undersigned finds,
that the following ensued :
He (Evans) asked me if I was a union man, and I told him yes, I had signed
up with the union, and he wanted to know if I got a union card, and I told
him no, I never had got anything. He said, "You are not a union man then.
You can go to work in the morning then if you want to."
Hocket returned to work on February 5. That evening Evans wrote Stremel as'
follows :
Just few lines to let you know 2 or "3 of the Last Bunch that came up-from
Denver has left. Frank Ealey is more of an union man than any of the
Hayden bunch. So I thought best to let him go. -1 did not try to keep him.
Loading his car was bad, just top them and let them. The others was not
so bad but they was waiting for the money to come so they could go. Porter
stayed lie is the best. I gave work to Sumner Hockett. He came up and was
very sorry of what happen so you felt like getting him back so I put him on.
The others is wishing that they could come. Saylor has lost to pay days. If
he know that the union what it is he would not have quit work not at all.
So I am sending the men that quit their time in. We had a bad day yesterday.
I change rope on the machine 4 times. The piece I got now seams to hold
alright. I want 2 more men if you can find some. So I will close for this
time, Yours respectful, Jack.
On February 16, Robert Frink applied to Evans for reemployment. Frink testi-
fied, and the undersigned finds, that Evans stated to Frink that he had no authority
to put'Frink back to work because Stremel had instructed him not to hire "any
of the twelve fellows that joined the union." 31 That evening Frink wrote Stremel
as follows :
I was, out to, the mine and Jack told me he had, orders not to hire any of
us fellows He -also said that I might write you. I realize that I made a
mistake when I signed the union, and I would be willing to sign an affidavit to
the effect that I would have nothing to'do with the union as long as I worked
at your mine. I would appreciate it very much if you could see fit to allow
me to again work in your mine. Thank you very much for your trouble.
Stremel did not answer the letter.
The undersigned. finds that the respondent, by his remarks on January 15, 1942,
by the remarks of Evans to Saylor on January 11 and on January 15, 1942 ; to Earl
Hindman on January 14; to Hockett shortly after January 10 and on February
4; to Warren Fread on January 10; and to Frink on February 10; and by locking
out and discharging his - employees, discriminated 'against his employees with
10 Stremel testified that he had been told by his brother-in-law that a man named Siegel
had told him that Carl ward had•told Siegel that he was going to burn down the respondent's
tipple. No damage was ever done to the tipple and neither the brother-in-law nor Siegel
was called to the stand to testify about -this alleged threat. The undersigned finds' that
-this evidence is too insubstantial and does not credit Stremel 's testimony on this point.
- 13Although Evans denied making such a statement , his denial is not credited.
.,CROW,BAR COAL COMPANY 673
,;,respect-to hire.and tenure of employment for the purpose of discouraging member-
ship-in the. Union, and that by such acts and conduct the respondent interfered
with, - restrained, and coerced his employees in the exercise of the rights guar-
4._anteed in Section 7 of the Act.
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 operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and have led and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that the respondent cease and desist therefrom and
take certain affirmative action, designed to effectuate the policies of the Act. The
respondent's employees will thus be assured that they may exercise the rights
guaranteed in the 'Act, without fear of interference, restraint and coercion.
It has been found-that the respondent discriminated in regard to the hire and
tenure of employment to Lee Fread, Warren Fread, Sumner Hockett, Earl Hind-
man, Carl Ward, R. C. Frink, Clarence Anderson, and Rinard Saylor. It is clear,
as found above, that on January 15, 1942, the day the respondent announced the
closing of the mine, he had no intention of reinstating the above named persons
unless and until they renounced their union affiliation. Sumner Hockett, Clarence
Anderson, and Rinard Saylor have been reinstated to their former or substantially
-equivalent positions. The undersigned will, therefore, recommend that the re-
spondent make each of them whole for any loss of pay each has suffered by reason
of the discrimination, by payment to each of a sum equal to that which he nor-
mally would have earned as wages during the period from January 15,,1942 to the
date of his reinstatement, less his net earnings.12
Earl Hindman testified, when asked whether he wanted to be reinstated, that
"I can't" go back to work for the respondent "now." At the time of the hearing
he was working elsewhere. Accordingly, the undersigned recommends that the
respondent offer him reinstatement, if Hindman applies therefor before February
1, 1943., Robert Frink and Warren Fread testified that they did not desire rein-
statement, but did not explain why. Inasmuch as their refusal may have been
due to other employment held at the time of the hearing and not to a permanent
disinclination to work for the respondent, the undersigned recommends that the
respondent offer each of them reinstatement, provided he'apply therefor before
February 1, 1943. Lee Fread testified that at the time of the hearing he was
working for the Colorado Highway Department and did 'not desire reinstatement,
' 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.
614 DECISIONS OFT ATIONAL-` LABOR'RELATbONS BOARD
"if-I can, stay with the`State.", The undersigned recommends that the respondent
-offer reinstatement to'W'arren Fread, provided he apply therefor before February
1, 1943.13
Carl Ward did not testify. The undersigned accordingly -recommends, that
the respondent offer him reinstatement to his former or substantially equiva-
lent position and that,the-respondent make him whole- for- any'loss of pay he
may_ have suffered by reason of respondent's discrimination against him equal
to that which he normally would have earned as ,wages from January' 15, 1942
to the date of the 'respondent's offer of reinstatement, 'less his net earnings,
`during' such" period. 'With respect to Lee Fread, Warren- Fread, Earl Hind-
man, and R- C.'Frmk'the undersigned recommends that the respondent make
them whole for any loss of pay they may have suffered by, reason of-the dis-
crimination against them by payment to each of them of a sum equal to that
(1) which he normally would have earned" as wages during the period from
January 15, 1942 to the date upon which he secured the position he held at the
:,time of the hearing, less his, net earnings during such, period;'4 and (2) from
a date five days after This application for reinstatement until the respondent's
offer of reinstatement, less his net earnings during such period.
Upon the.,basis of the foregoing 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 .15, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating with regard to the hire and tenure of employment of
Lee Fread, Warren Fread, Sumner Hoekett, Earl Hindman, Carl Ward, R C.
Frink, Clarence Anderson, and Rinard Saylor, thereby discouraging member-
ship in United Mine Workers of America, District 15, the respondent has en-
-gaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act. '
3. By interfering with, restraining, and coercing his employees in the exer-
-,cise of the rights guaranteed them in Section'7 of'the Act, the respondent has
'and is engaging in unfair labor practices, 'within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6)' and (7) of the Act.'
CONCLUSIONS OF LAW
Upon the basis of the above findings of fact and, conclusions of law the
undersigned recommends that the respondent, Joseph Stremel, doing business
as Crow Bar Coal Company, his agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in, United Mine Workers of America, District
15, or any other labor organization of his employees by discriminating in
regard to their hire and tenure of employment or any other term or condition
.thereof ;
(b) In any other, manner. interfering with, restraining, or coercing his, em-
ployees in the exercise of their right to self-organization, to form, join, or
la See Matter of Max Kaplan and Jacob Kaplan , co-partners, doing business under the
firm name and style of Kaplan Bros . and Textile Workers Union of America, Greater New
York Joint Board, C. 1. 0, 45 N. L R B 799.
14 See Matter of The Greenport Basin and Construction Company and Industrial Union
of Marine and Shipbuilding Workers of America, Local #47, C. I. 0., 42 N.'L. R. B 377.
CROW -BAR COAL COMPANY 675
assist-labor organizations, 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, as guaranteed in Section
'7 of the National-Labor Relations Act.
'2 Take the, following affirmative action which the undersigned finds will
effectuate the policies of the Act : I "
'(a) Make whole Sumner Hockett, Clarence Anderson, and' Rinard 'Saylor
and' each' of -them for any loss 'of pay they may have suffered by reason, of
the 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' froin
' ' • • ' iJanuary 15, 1942, to the date of his reinstatement;,
(b) "Offer 'to Lee Fread, Warren Fread, Earl Hindman,-and R. C. Frink re-
instatement` to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges within' five days
after their respective applications therefor, provided that such application is
made before February 1, 1943;
(c) Make whole Lee Freacl, Warren Fread, Earl Hindman, and R. C. Frink
and each of them for any loss of pay they may have suffered by reason of the
discrimination against them by payment to each of them of a sum of money
equal (1) to that which he normally would have earned as wages from January
15, 1942, to the date upon which he obtained that position which he held at the
time of the hearing, less his net earnings during such period; and (2) to
that which he would normally have earned as wages, from a date five days
after his application for reinstatement until the respondent's offer of reinstate-
ment, less his net earnings during said period, providing he applies for, rein-
statement in accordance with the procedure outlined in "The remedy" ;
(d) Offer to Carl Ward immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority and other
rights and privileges ;
(e) Make whole Carl Ward for any loss in earnings he may have suffered
by reason of the respondent's discrimination against him, by payment to him
of a sum of money equal to that which he would normally have earned as
wages during the period from January 15, 1042, to the date of the offer of
reinstatement, less his net earnings during such period ;
(f) Post immediately in conspicuous places throughout his mine and main-
tain for a period of at least sixty (60) consecutive days from the date of his
posting, notices to his employees stating: (1) that the respondent will not
engage in the conduct from which it is recommended that he cease and desist
in paragraph 1 (a) and (b) of these recommendations; (2) that the respond-
ent will take the affirmative action recommended in paragraph 2 (a), (b), (c),
(d), and (e) of these recommendations; and (3) that the respondent's em-
ployees are free to become or-remain members of United Mine Workers of
America, District 15, and that the respondent will not discriminate against
any employee because of his membership or activities in said organization.
(g) Notify the Regional Director of the Twenty-second Region in writing
within (10) days from the date of the receipt of this Intermediate Report,
what steps the respondent has taken to comply therewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional
Director in writing, that, he 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 2-as amended, effective October 28,
521247-43-vol 48-44 -
676 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
1942 any party 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, Shoreham 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. As further provided in said Section 33 , should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of the order trans-
ferriug the case to the Board.
HOWARD Mats
Trial Examiner.
Dated January 6, 1943.