Crowe Coal Co.

National Labor Relations Board - Board Decisions

Nov 23, 1938

9 N.L.R.B. 1149 (N.L.R.B. 1938)

In the Matter .of CROWE COAL COMPANY and UNITED MINE WORKERS
OF AMERICA , DISTRICT No. 14,
Case No. C'--564.-Decided November 23, 1938
Coal Mining Industry-Isiterference , Restraint , and Coercion : expressed oppo-
sition to labor organization ; questioning employees regarding union affiliation
and activity-Discrimination : discharges ; for union membership and activity-
Reinstatement Ordered-Back Pay: awarded , from discharge to last attempt to
secure compliance of respondent with Act and from filing of charges to the
offer of reinstatement.
,Mr. Paul F. Broderick, and Mr. Bernard J. Alpert, for the Board.
Langwort/ y, Spencer, Terrell cl; Matz, by Mr. Frank H. Terrell;
of Kansas City, Mo., for the respondent.
Mr. Harry E. Selekman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges filed on May 4, 1937, and amended charges filed on
November 10,, 1937, by United Mine Workers of America, District
No. 14, herein called the United, the National Labor Relations Board,
herein called the Board, by George O. Pratt, Regional Director for
the • Seventeenth Region (Kansas City, Missouri), issued its com-
plaint, dated November 10, 1937, against Crowe Coal Company,
Clinton, Missouri, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices 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.
The complaint alleged in substance that the respondent discharged
Kaples Forsythe and A. W. Sivils on October 26, 1935, Charles
Kerns on October 28, 1935, and Carey Scott on October 30, 1935, and
has since that time refused to reinstate them because they joined
and assisted. the United; and that the respondent, by the discharge
of these employees and by intimidating and coercing its employees in
9 N. L. R . B., No.100.
1149
1150 NATIONAL LABOR RELATIONS BOARD
their right to join or assist labor organizations of their own choosing,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed to them in Section 7 of the Act. Copies of
the complaint, accompanied by notices of hearing thereon, were duly
served upon the' respondent and the United. On -November_,20,•1937,
the respondent filed an answer to the complaint denying the allega-
tions of the complaint that it was engaged in interstate commerce and
that it had committed the unfair labor practices.
Pursuant to notice, a hearing was held on November 29, 1937,
at Kansas City, Missouri, before Theo. R. Bland, the Trial Examiner.
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made several
rulings on motions and on other objections to the admission of evi-
dence. The Board has reviewed such rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings-
are hereby affirmed.
On April 20, 1938, the Trial Examiner filed an Intermediate
Report, in which he found that the respondent had engaged in
unfair labor practices within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act. The respondent filed excep-
tions to the Intermediate Report and a brief.
On May 25, 1938, the Board, acting pursuant to Article II, Sec-
tion 36, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, issued an order reopening the record for fur-
ther evidence. Pursuant to notices duly served upon the respond-
ent and the United, a further hearing was held on July 1, 1938, at
Springfield, Missouri, before Theo. R. Bland, the Trial Examiner.
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made several
rulings on motions and on other objections to the admission of evi-
dence. The Board has reviewed such rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
At the first hearing it was agreed by counsel for the Board and the
respondent that the record was to be left open for the introduction
at a later date of economic data relating to the bituminous coal in-
dustry. After the second hearing had ended, in accordance with
the terms of the agreement, Bulletin No. 2 of the Economics Division
DECISIONS AND ORDERS 1151
of the Board 1 was submitted to counsel for the respondent for his
approval prior to its being made an exhibit in the case. On Novem-
ber 16, 1938, counsel for the respondent filed with the Board objec-
tions to the introduction of this material in evidence. The Board
hereby overrules such objections and orders that the bulletin, desig-
nated Board Exhibit No. 11, be made a part of the record.
Pursuant to notice, a hearing was held before the Board on Sep-
tembei 27, 1938, for the purposes of oral argument on the respond-
ent's exceptions to the Trial Examiner's Intermediate Report and
the entire record. The respondent was represented by counsel and
participated therein. The Board has reviewed the exceptions and
brief filed by the respondent and finds the exceptions to be without
merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Crowe Coal Company,'- a Missouri corporation, operates a strip
mine in Clinton, Missouri, and maintains a sales office in Kansas
City, Missouri. During the year 1936, the respondent mined and
sold 267,495.5 tons of coal to various consumers. Of this amount,
jobbers who accepted delivery at the mine, sent 34,004.74 tons of coal
out of the State f. o. b. respondent's aline. In addition, the respond-
ent sold 32,231.33 tons of coal to the Kansas City Power & Light
Company and 46,590 tons to the St. Louis-San Francisco Railway
Company for road and engine service and for use in its stationary
plants. The Kansas City Terminal Railway Company purchased
17,888.58 tons of coal which were used at its powerhouse in Kansas
City, Missouri.
II. THE ORGANIZATION INVOLVED
United Mine Workers of America, District No. 14, is a labor or-
ganization affiliated with the Committee for Industrial Organization,
admitting to its membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharges
On October 25, 1935, a meeting was held at the home of Kaples
Forsythe, an employee of the respondent, for the purpose of organiz-
ing the respondent's employees. About 15 workers of the respondent
I "The Effect of Labor Relations in the Bituminous Coal Industry Upon Interstate Com-
merce," National Labor Relations Board, Division of Economic Research , Bulletin No. 2.
s At the time of the discharges , the name of the respondent was Reliance Coal Corpora-
tion . On January 15, 1937 , its name was changed to Crowe Coal Company.
1152 NATIONAL LABOR RELATIONS BOARD
attended and were addressed by Henry Allai, president of- the United,
Romak, secretary-treasurer of the United, and Abe Vales, interna-
tional representative of the United Mine Workers of America. '-At
the conclusion of the meeting Forsythe, Albert Sivils, and Charles
Kerns joined the United. After the meeting had ended, Vales visited
the home of Carey Scott, another employee of the respondent, who
joined the United at that time.
About 8:30 in the morning of October 26, 1935, Albert Sivils
was called to the office of Burnett, the superintendent of the mine,
and questioned about his activity in the United. Burnett asked
Sivils what part he had taken in the United, asserted that he was not
going to have any organization in the mine, and accused him of talk-
ing to employees of the respondent about the United during the
:lunch hour and in the evening. He then told Sivils to return to
work.
Burnett next called in Forsythe and questioned him about his
activities in the United. Forsythe answered that he had introduced
Vales to some of the respondent's employees and that a union meet-
ing had been held at his home on the preceding evening. Burnett
then stated that Forsythe had "got himself in a crack" and that he
would have to discharge him because "we don't want any organiza-
tion here." Forsythe was then ordered to go to the scale house and
wait for Sivils whom Burnett stated lie was also going to discharge.
He added that, "Probably Charlie Kerns will follow you."
About 10 o'clock in the morning, Sivils was directed by Wilson,
his foreman, to see Burnett and to take his lunch bucket with him.
Burnett told him that he had nothing against his work, but he was
not going to have "any damned organization around here." Sivils
said he was going to take the matter up with the United to see
whether he could be reinstated. Burnett then threatened that "If I
do have to, I will make it so damned miserable for you, you can't
stay up there."
Shortly thereafter, Forsythe reported his discharge to Vales, who
was instructed by Allai to attempt to have the men reinstated. Vales,
accompanied by Forsythe and Sivils, saw Burnett that evening and
asked him why the men had been discharged. Burnett replied that
they were dismissed because they had joined the United, and that
he had nothing against them except their activity in the United,
which was the reason for their discharge. He refused to reinstate
the men upon Vales' request.
On October 26, 1935, about 10 minutes before quitting time, Bur-
nett called in Charles Kerns and asked him "Charlie, what have you
been doing running around with Vales and talking up this union?"
Kerns denied that he had been running around with Vales. Burnett
DECISIONS AND ORDERS :1'153
then asked whether Kerns "had-ever met Vales. - Kerns, stated that
Forsythe had introduced Vales to him . Kerns was then instructed
by Burnett to bring his foreman to " his office. Upon their ' arrival,
Wilson and Burnett spoke together for a few minutes and then
Burnett told Kerns that he should come back to work on the• fol-
lowing Monday. He stated that he wanted to see whether Kerns had
anything to do with this organization, that he had dischar"ged two
boys, and that he was going to discharge everybody connected with
the United . After Kerns had finished his work on Monday , October
28, his foreman told him, "You are discharged by order of Burnett
for joining the United Mine Workers.", Kerns stated that he did
not ask to be reinstated because he knew the ' respondent had'refused
the request of Forsythe and Sivils.
On Sunday afternoon , October 27 , Burnett met " Carey Scott while
he was on a public road, and Burnett asked him what he knew
about the United. Burnett told Scott that he had fired Forsythe
and Sivils because they had joined the United , • aud that there was
,not going to be any union in the mine as long as ' he was boss. On
October 30 , Burnett came to Scott's home, called him outside, and
told him he had to discharge Scott because he had joined the United.
About a month later, Allai, in a meeting with W. C. Shank, the
president of the respondent, requested that the four discharged em-
ployees be reinstated. Shank refused to do so on the ground that
they had joined the United . He asserted that, "We are not going
to have any organization in the Clinton field." During a meeting
a year later, Allai again renewed his request that these men be re-
instated , but Shank still refused to do so. The evidence upon which
the findings in this section are based was not controverted by the
respondent , which called only one witness, W. C. Shank, who ad-
mitted that he refused to reinstate the four men because they were
members of the United.
We find that the respondent discharged Kaples Forsythe , Albert
Sivils, Charles Kerns, and Carey Scott because of their membership
and activity in the United. We further find that the respondent has
discriminated against its employees in regard to hire and tenure of
employment , the discouraging membership in a labor organiza-
tion and has thereby interfered with, restrained , and coerced its
employees in the exercise of their rights guaranteed in Section 7 of
the Act.
All four employees desired to be reinstated. At the time of their
discharges , Forsythe , Sivils, and Kerns were receiving 561/4 cents per
hour, and Scott was being paid $1.02 per hour. Since their dis-
charges in October 1935 , Forsythe earned $868.70; Sivils, $529.26;
Kerns, $295 .20; and Scott, $262.80.
1154 NATIONAL LABOR RELATIONS BOARD
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 its operations described in Section I
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor
,disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
We have found that the respondent has discriminated in regard to
the hire and tenure of employment by discharging Kaples Forsythe,
Albert Sivils, Charles Kerns, and Carey Scott. We shall order the
respondent to offer Kaples Forsythe, Albert Sivils, Charles Kerns,
and Carey Scott immediate and full reinstatement, without preju-
dice to their seniority and other rights and privileges, and to make
them whole for any loss of pay they may have suffered by reason of
their respective discharges. Although the record reveals that the last
conference between the United and the respondent for the purpose of
obtaining the reinstatement of the discharged employees took place
in November or December 1936, no charges were filed against the
respondent until May 4, 1937. We shall allow back pay to the
employees for the period during which the Union was seeking to
secure the respondent's voluntary compliance with the Act, but we are
of the opinion that the employees are not entitled to back pay for the
period during which the United failed to file its charges, in the
absence of any showing of extenuating circumstances for this delay.3
We shall, accordingly, order the respondent to make whole each of
these men for any loss of pay he may have suffered during the
,periods from the date of the discharge to the date of the last con-
ference held by the respondent and the United, and from May 4,
1937, until the date of the offer of reinstatement by payment to him
of a sum equal to the amount which he normally would have earned
as wages during said periods, less his net earnings 4 during said
periods. We shall further order the respondent to cease and desist
from its unfair labor practices and to take certain affirmative action
which we deem necessary to effectuate the policies of the Act.
E See Matter of Inland Lime and Stone Company and Quarry Workers International
Union of North America, Branch No . 259, 8 N. L. R B. 944.
4 By "net earnings" Is meant earnings less expenses, such as for transportation, room
and board , incurred by any 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 Amer-
tea, Lumber and Sawmill Workers Union , Local 2390, 8 N L R B 440
DECISIONS AND ORDERS 1155.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District No. 14, is a labor
,organization within the meaning of Section 2 (5) of the Act.
2. " By" discriminating in regard to ' hire and tenure • of employment
of Kaples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott,
thereby discouraging membership in the United, the respondent has
engaged 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 its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged 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.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Crowe Coal Company, Clinton, Missouri , and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the United Mine Workers of
America, District No. 14, or any other labor organization of its
employees because of membership in the United Mine Workers
of America, District No. 14, or any other labor organization, or by
discriminating in any other manner in regard to their hire and tenure
of employment ;
(b) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining and
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) Offer to 1 aples Forsythe, Albert Sivils, Charles Kerns, and
Carey Scott immediate and full reinstatement to their former posi-
tions, without prejudice to their seniority or other rights and
privileges :
134088-39-vo1 rx--74
1156 NATIONAL LABOR RELATIONS 1 OARD
(b) Make whole Kaples Forsythe, Albert Sivils, Charles Kerns,
and Carey Scott for any loss of pay they may have suffered by reason
of their discharges, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages during
,the periods from. the date of. his discharge to the date of the last
conference between,the respondent and,the United and from May 4,
1937, to the date of the offer of reinstatement, less his net earnings
,during said periods;
(c) Immediately post notices in conspicuous places throughout
the mine and maintain such notices for a period of thirty (30)
consecutive days, stating that the respondent will cease and desist in
the manner set forth in paragraph 1 of this Order;
(d) 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 therewith.