Dawson Collieries, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1939

17 N.L.R.B. 593 (N.L.R.B. 1939)

In the Matter of DAWSON COLLIERIES, INCORPORATED and UNITED
MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE
,C. I. 0., and PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT
#5, AFFILIATED WITH THE A. F. OF L., PARTY TO THE CONTRACT
In the Matter of DAWSON COLLIERIES, INCORPORATED and UNITED
MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE
C. I. O.
Cases Nos. C-1408 and R-1604, respectively.Decided November
13, 1939
Coal Mining Industry-Settlement: stipulation providing for compliance with
the Act; including disestablishment of company-dominated union-Order:
entered on 'stipulation-Investigation of Representatives: stipulated : respondent
refuses to recognize either of rival labor organizations unless certified by the
Board-Unit Appropriate for Collective Bargaining: all persons in the mining
operations of the respondent as production employees, excluding superintend-
ents, mine foremen, room bosses, face bosses, top bosses, entry bosses, elec-
;tricians in a supervisory capacity, all other supervisory employees, and "guards"
or "watchmen"-Election Ordered: pursuant to stipulation.
Mr. Arthur R. Donovan, Mr. Colonel C. Sawyer, and Mr. Robert
D. Malarney, for the Board.
Mr. A. C. Van Winkle, of Louisville, Ky., for the respondent.
Mr. Ed. J. Morgan, of Madisonville, Ky., and Mr. Earl E. Houck;
,of Washington, D. C., for the United.
Mr. John R. Kane, of Springfield, Ill., for the Progressive.
Mr. Lanydon West and Miss Margaret Holmes, of counsel to the
Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Mine
Workers of America, District #23, affiliated with the Congress of
Industrial Organizations, herein called the United, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Eleventh Region (Indianapolis, Indiana), issued
17 N. L. R. B., No. 49.
593
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its complaint 1 dated October 20, 1939, against Dawson Collieries,
Incorporated, Dawson Springs, Hopkins County, Kentucky, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices within the meaning of
Section 8 (1), (2), and (3) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. A copy of the complaint accom-
panied by notice of hearing was duly served upon the respondent,
the United, and Progressive Mine Workers of America, District
#5, affiliated with the American Federation of Labor, herein called
the Progressive. The respondent did not file an answer to the
complaint.
On or about October 18, 1939, the United filed with the Regional
Director a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On October 20, 1939, the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, Article III, Section 10 (c) (2), and Article II, Section
36 (b), of National Labor Relations Board Rules and Regula-
tions-Series 2, ordered an investigation upon the petition and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice and further ordered that
the two cases be consolidated.2
On October 23, 1939, the respondent, the United, the Progressive,
and counsel for the Board entered into a stipulation in settlement of
the case subject to the approval of the Board. This stipulation pro-
vides as follows :
STIPULATION
. Dawson Collieries, Inc., hereinafter called the Respondent
United, Mine Workers of America, District #23,. affiliated with.
the Congress of Industrial Organizations, hereinafter sometimes:
called the United; the Progressive Mine Workers of America,.
District #5, affiliated with the American Federation of Labor,.
hereinafter sometimes called the Progressive; and Arthur R..
Donovan, Regional Attorney for the Eleventh Region of the
National Labor Relations Board, Colonel C. Sawyer, and Robert
D. Malarney, Attorneys, National Labor Relations Board, here-
inafter sometimes called the Board, hereby stipulate and agree-
that :
1 This case was consolidated with several others by orders of the Board dated August 9„
1937, May 3, 1939, and July 17, 1939, respectively. These orders of consolidation were-
revoked by the Board's order dated October 20, 1939.
2 The name of Robert M. Nance was incorrectly inserted in the caption of the complaint
case in the order of consolidation.
DAWSON COLLIERIES , INCORPORATED
I
595
Upon amended charges duly filed by the United on August
30, 1939, the National Labor Relations Board , by its Regional
Director for the Eleventh Region, acting pursuant to authority
granted in Section 10 (b) of the National Labor Relations Act
(49 Stat. 449), hereinafter sometimes called the Act, and pursuant
to authority granted by the Board's Rules and Regulations , Series
2, Article 2, Section 5, issued its Complaint on the 20th day of
October 1939, against the Respondent.
II
Upon a Petition duly filed by the United on October 18, 1939,
the Board, on October 20, 1939, directed that an investigation of
bargaining representatives be made pursuant to Section 9 (c) of
the Act. Upon authorization by the Board, the Regional
Director for the Eleventh Region, issued notice of hearing on
October 20 , 1939. In the petition filed by the United, it was
stated that both the United and the Progressive claim to have
been designated as collective bargaining representatives by em-
ployees in the unit alleged in said petition to be appropriate, and
the United and the Progressive are each a party to said proceed-
ing instituted by said' petition by virtue of the, Board's Rules and
Regulations, Series 2, Article 3, Section 3.
III
The Respondent , the United and the Progressive withdraw all
notions and other pleadings filed by them in the proceedings
herein, except that the United does not withdraw the amended
charges and the petition hereinbefore mentioned in Articles
I and II.
IV
The Respondent, the United and the Progressive, hereby waive
their right to a hearing or hearings in these cases and all parties
expressly agree that the amended charges filed on August 30,
1939, the complaint issued on October 20 , 1939, and notice of hear-
ing, the petition filed by the United on October 18, 1939, the Order
,of the National Labor Relations Board directing an investigation
and the notice of, hearing pursuant to,this Order for investigation,
and this stipulation , -may be introduced in the record in the pro-
ceedings herein, by filing with the Chief Trial Examiner of the
National Labor Relations Board at Washington, D. C.
596 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
V
The Respondent, the United, and the Progressive, hereby
acknowledge due service of the complaint and notice of hearing
upon the complaint and of the petition and notice of hearing
pursuant to the Board's Order directing investigation and hear-
ing and expressly waive any right or privilege which they may
have for ten (10) days notice of hearing and to the holding of
a hearing or hearings in these cases and also waive any right
or privilege which they may have to the making of findings of.
fact and conclusions of law by the Board.
VI
The Respondent specifically admits each and every allegation
in paragraphs I and II of the Board's complaint herein and
stipulates and agrees that it is engaged in interstate commerce
within the meaning of Section 2 (6) and (7) of the Act.
VII
The United, the Progressive and the Independent Miners'
Union, are , each and all of them, labor organizations within the
meaning of Section 2 , subdivision ( 5) of the Act.
VIII
It is agreed by and between the. Respondent and the Progres-
sive that the contract now in force and effect between the Re-
spondent and the Progressive is hereby cancelled and is void
and of no effect; provided, however, that nothing in this stipu-
lation shall preclude the Respondent from hereafter making an
agreement with the Progressive or any other labor organization
(not established, maintained or assisted by any action defined in
the National Labor Relations Act as an unfair labor practice)
requiring, as a condition of employment, membership therein, if
such labor organization is the representative of the employees
as provided in Section 9 (a) of the Act; and it is agreed that
the Respondent will not recognize the Progressive or any other
labor organization as the exclusive representative of its em-
ployees until and unless such labor organization is certified
by the Board as such exclusive representative in the manner
hereinafter provided.
IX
It is hereby stipulated and agreed that all persons employed as
production employees, excluding superintendents, mine foremen.
DAWSON COLLIERIES, INCORPORATED 597.
section foremen, room bosses, face bosses, top bosses, entry bosses,
electricians in a supervisory capacity, all other supervisory em-
ployees, and "guards" or "watchmen," constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
X
It is hereby stipulated and agreed by the Respondent, the
United, and the Progressive, that a question has arisen concern-
ing the representation of the employees in the bargaining unit
set forth in Article IX of this stipulation in that the United
and the Progressive each claim to have been designated by
employees in the unit set forth above as representative for pur-
poses of collective bargaining, within the meaning of the Act,
and that Respondent refuses to recognize either the United or
the Progressive as the exclusive representative of all the em-
ployees in said unit until and unless the Board has made a
certification pursuant to Section 9 (c) of the Act.
XI
The Respondent, the United, and the Progressive, stipulate
and agree that the Board shall forthwith issue a Direction of
Election. The election shall be conducted within thirty (30)
days from the issuance of the. Direction of Election by the Board
and shall be conducted in accordance with and pursuant to the
Act, the Board's Rules and Regulations, and decisions of the
Board in representation cases. The election shall be for the
purpose of determining whether the eligible employees desire
to be represented for the purposes of collective bargaining by
the United, the Progressive, or by neither. The employees
eligible to vote in this election shall be all the employees in the
appropriate unit 'set forth in Article IX, above, on the payroll
of Respondent one week preceding issuance of a Direction of
Election pursuant to this Article. This stipulation and the
Election Report filed on the results of the election shall con-
stitute competent evidence upon which the Board may make it
certification pursuant to Section 9 (c) of the Act.
XII
Upon the basis of the amended charges filed by the United on
August 30, 1939, the complaint herein and this stipulation, the
Respondent expressly consents to the issuance by the National
Labor Relations Board of an Order to the following effect :
.598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of this stipulation and pursuant to Section
10 (c) of the National Labor-Relations Act, the -National Labor
Relations Board hereby orders that the Dawson Collieries, Inc.,
Dawson Springs, Kentucky, its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activity for the purposes of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section
7 of the National Labor Relations Act;
(b) Discouraging membership in the United Mine Workers
of America, District #23, affiliated with the Congress of Indus-
trial Organizations, or any other labor organization of its em-
ployees, or encouraging membership in the Progressive Mine
'Workers of America, District #5, affiliated with the American
Federation of Labor, or any other labor organization of its
employees, by discharging 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) Dominating or interfering with the administration of the
-Independent Miners Union, or dominating or interfering with
the formation or administration or [sic] any other labor organ-
ization of its employees, or contributing support to any such
-labor organization;
(d) Recognizing the Independent Miners Union as the repre-
::sentative` of any of its employees for the purposes of dealing
with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions
.of employment;
2. Take the following affirmative action to effectuate the
policies of the National Labor Relations Act :
(a) Withdraw and continue to withhold all recognition of
the Independent Miners Union as a representative of any of its
employees for the purposes of collective bargaining with the
.Respondent in respect to rates of pay, wages, hours of employ-
ment, and other terms or conditions of employment, and com-
pletely disestablish the Independent Miners Union as such repre-
sentative;
DAWSON COLLIERIES , INCORPORATED 599
(b) Immediately post notices in conspicuous places through-
out its plant and maintain such notices for a; period of sixty (60)
consecutive days or for the period until the Board issues its certi-
fication in Case No. XI-R-242, whichever period proves to be of
shortest duration , stating ( 1) that the Respondent will cease
and desist as aforesaid, ( 2) and that the Respondent will take
the affirmative action as aforesaid , which notice shall contain the
substance of the Order, but need not be in the exact language
thereof;
(c) Notify the Regional Director for the Eleventh Region of
the National Labor Relations Board within a period of ten (10)
days after the entry of this Order what steps have been taken, to
comply with said Order.
XIII
The Respondent hereby consents to the entry by an appro-
priate United States Circuit Court of Appeals , upon application
by the Board, of a decree enforcing an Order of the Board as
hereinabove set forth in Article XII, above , and hereby waives
further notice of the application for such decree . The United
and the Progressive expressly waive any right or privilege to
contest the entry of this decree by an' appropriate Circuit Court
of Appeals and hereby waive further notice of application for
entry thereof.
XIV
Wherever the facts , spelling of names ,' titles or other material
and documents in the record of these proceedings shall appear
inconsistent with the names, titles or other material set out and
made part of this stipulation , the spelling of names, titles and
other material in this stipulation shall be considered correct.
XV
This stipulation shall be subject in all respects to the approval
\of the Board and shall become effective immediately upon ap-
proval by the Board . If this stipulation is not approved by the
Board, it shall be of no force and effect and shall not be used
as=evidence against the parties hereto in any subsequent pro-
ceeding herein.
The entire agreement between all parties hereto is contained
within the terms of this stipulation , and there is no verbal
agreement of any kind which varies, alters , or adds to said
stipulation in any respect.
247384-40-vol. 17-39
600 DECISIONS %F NATIONAL LABOR RELATIONS BOARD
On November. 10, 1939, the Board issued its order approving
the above. stipulation, making it a part of the record, and transfer-
ring the proceeding to the Board for the purpose of entry of a deci-
sion and order and direction of election by the Board.
Upon' the basis of the above stipulation and the entire record in
the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 3
The respondent, a Kentucky corporation with.its principal office
and place of business in or near Dawson Springs, Hopkins County,
Kentucky, is engaged at a place of business in Hopkins County, Ken-
tucky, called the Hopkins County Mine, in the mining, sale, and
distribution of coal. -
During the fiscal year, May 1, 1938, to April 30, 1939, the respond-
eilt mined 68,000 tons of coal at its Hopkins County Mine. The re-
spondent, in the course and conduct of its business, has continuously
caused a substantial quantity of coal, consisting of more than 50
per' cent of the products mined, sold, and distributed by it, to be
supplied, delivered, and transported in interstate commerce from. its
Hopkins County Mine in the State of Kentucky. The respondent
agreed that it is engaged in interstate commerce within the meaning
of the Act.
We find that the above-described operations constitute a continu-
ous flow of trade, traffic, and commerce among the several States.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District #23, affiliated with the
Congress of Industrial Organizations; the Progressive Mine Workers
of America, District $k5, affiliated with the American Federation of
Labor; and Independent Miners Union, are labor organizations as ;
defined in Section 2 (5) of the At.
III. THE QUESTION CONCERNING REPRESENTATION
In accordance with the terms of the stipulation, we find that the
United and the Progressive each claimed to have been designated by
employees in the unit hereinafter found to be appropriate for the
purposes of collective bargaining as their bargaining agent, and that
the 'respondent refuses to recognize either the United or the Pro-
gressive' as the exclusive representative of all the employees in 'said
3 The facts set forth in this section are based upon allegations in the complaint admitted
by the respondent.
DAWSON COLLIERIES, INCORPORATED 601
unit until and unless the Board' has made a certification pursuant to
.Section 9 (c) of the Act, and that therefore a question has arisen
concerning representation of the employees of the respondent.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that. the question concerning representation which has;
arisen, occuring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial!
relation to trade, traffic, and commerce among the several States,.
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
We find, in accordance with the terms of the stipulation , that all
persons employed in the mining operations of the respondent as
production employees , excluding superintendents , mine foremen, sec-
tion foremen , room bosses , face bosses , top bosses , entry bosses, elec-
tricians in a supervisory capacity , all other supervisory employees,
and "guards" or "watchmen ," constitute a 'unit appropriate for the
purposes of collective bargaining , and that such unit will insure to,
the said employees the full benefit of their right to self-organization
and collective bargaining and will otherwise effectuate the policies
of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the employees of the respondent can best be resolved by
the holding of an election by secret ballot. In accordance. with the
terms of the stipulation, we find that the employees eligible to vote
in the election shall be all employees in the appropriate unit on the
pay roll of the respondent one week preceding the issuance of our
Direction of Election.
Upon the basis of the above findings of fact and the stipulation,
and upon the entire record of the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Mine Workers of America, District x$23, affiliated with
the Congress of Industrial Organizations, and Progressive Mine
Workers of America, District #5, affiliated with the American Fed-
eration of Labor, are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
2. A question affecting commerce has arisen concerning the repre-
sentation of employees of Dawson Collieries, Incorporated, Dawson
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Springs, Hopkins County, Kentucky , within the meaning of :Section
9 (c) and Section 2 (6) and ( 7) of the National Labor Relations Act.
3. All persons employed in the mining operations of the respondent
as production employees , excluding superintendents , mine foremen,
section foremen, room bosses, face bosses, top bosses, entry bosses,
electricians in a supervisory capacity , all other supervisory em-
ployees, and "guards" or "watchmen ," constitute a unit appropriate
for collective bargaining , within the meaning of Section 9 (b) of
the Act.
ORDER
Upon the basis of the above findings of fact, stipulation,. and 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 Dawson Collieries, Incorporated, Dawson Springs,
Hopkins County, Kentucky, its officers, agents, successors, and assigns
.shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activity for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act;
(b) Discouraging membership in United Mine Workers of.Amer-
ica, District #23, affiliated with the Congress of Industrial Or-
ganizations, or any other labor organization of its employees, or
encouraging membership in Progressive Mine Workers of America,
District #5, affiliated with the American Federation of Labor, or
any other labor organization of its employees, by discharging 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) Dominating or interfering with the administration of Inde-
pendent Miners Union, or dominating or interfering with the for-
mation or administration of any other labor organization of its
employees, or contributing support to any such labor organization;
(d) Recognizing Independent Miners Union as the representative
of any of its employees for the purposes of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the National Labor Relations Act :
DAWSON COLLIERIES, INCORPORATED 603
(a) Withdraw and continue to withhold all recognition of Inde-
pendent Miners Union as a; representative of any of its employees
for the purposes of collective bargaining with the respondent in
respect to rates of pay, wages, hours of employment, and other terms
or conditions of employment, and completely disestablish Inde-
pendent Miners Union as such representative;
(b) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of sixty (60) consecu-
tive days or for the period until the Board issues its certification in
Case No. R-1604, whichever period proves to be of shortest duration,
stating (1) that the respondent will cease and desist as aforesaid,
and (2) that the respondent will take the affirmative action as afore-
said ; which notice shall contain the substance of the Order, but need
not be in the exact language thereof;
(c) Notify the Regional Director for the Eleventh Region of the
National Labor Relations Board within a period of ten _(10) days after
the entry of this Order what steps have been taken to comply with
said Order.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labe Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargain-
ing with Dawson Collieries, Incorporated, Dawson Springs, Hopkins
County, Kentucky, an election by secret ballot shall be conducted
within thirty (30) days from the date of this Direction under
the direction and supervision of the Regional Director for the
Eleventh Region, acting in this matter as agent for the National
Labor Relations Board and subject to Article III, Section 9, of said
Rules and Regulations, among all persons employed in the mining
operations of Dawson Collieries, Incorporated, Dawson Springs,
Hopkins County, Kentucky, as production employees on the pay roll
of the respondent one week preceding the issuance of this Direction
of Election, but excluding superintendents, mine foremen, section'
foremen, room bosses, face bosses, top bosses, entry bosses, electricians
in a supervisory capacity, and all other supervisory employees, and
"guards" or "watchmen," to determine whether they desire to be
represented by United Mine Workers of America, District #23,
affiliated with the Congress of Industrial Organizations, or Progres-
sive Mine Workers of America, District #5, affiliated with the
American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.