Diamond Coal Co.

National Labor Relations Board - Board Decisions

Jun 12, 1940

24 N.L.R.B. 611 (N.L.R.B. 1940)

In the Matter of DIAMOND COAL COMPANY and UNITED MINE WORKERS
OF AMERICA DISTRICT #23
Case No. R-1859.Decided June 1 2,1940
Coal Mining Industry-Investigation of Representatives: controversy concern-
ing representation of employees : refusal by employer to recognize union as
exclusive representative: conflicting claims of rival organizations-Unit Appro-
priate for Collective Bargaining: production employees with specified exclusions ;
no contest-Election Ordered
Mr. J. C. Cannaday, of Providence, Ky., and Mr. Abner C. Johnston,
of Madisonville, Ky., for the Company.
Mr. L. R. Fox, Mr. Edward J. Morgan, and Mr. Earl Swvers, of
Madisonville, Ky., for the United.
Mr. John R. Kane, of Springfield, Ill., and Mr. Jewell Blanks and
Mr. J. T. Gooch, of Madisonville, Ky., for the Progressive.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 16, 1940, United Mine Workers of America District
#23, herein called the United, filed with the Regional Director for the
Eleventh Region (Indianapolis, Indiana) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Diamond Coal Company, Providence, Kentucky,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On March 22,
1940, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section 3,
of National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
24 N. L. R. B., No. 60.
611
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 3, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the United, and
upon Progressive Mine Workers of America, District #5, herein
called the Progressive, a labor organization claiming to represent em-
ployees directly affected by the investigation. Pursuant to the notice,
a hearing was held on May 27, 1940, at Providence, Kentucky, before
Arthur R. Donovan, the Trial Examiner duly designated by the Board.
The Company, the United, and the Progressive were represented by
counsel and participated in the hearing. At the commencement of the
hearing, the Trial Examiner granted a motion to intervene filed by the
Progressive. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. During the course of the hearing the Trial.
Examiner made several rulings on other motions and on objections to
the admission of evidence. The Board has reviewed all the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Diamond Coal Company is a corporation engaged in the mining of
coal at two mines in Providence, Kentucky. In 1939 the Company
produced approximately 272,000 tons of coal valued at approximately
$324,000. Approximately 65 per cent of the Company's total produc-
tion in 1939 was shipped by it to points outside the State of Kentucky.
The Company employs approximately 350 employees. It admits that
it is engaged in commerce within the meaning of Section 2 (6) and.
(7) of the. Act.
II. THE ORGANIZATIONS INVOLVED
. United Mine, Workers of America District #23 is a labor organiza-
tion affiliated with the Congress of Industrial Organizations, admitting
to membership the production employees of the Company, excluding
supervisory employees, guards, and watchmen.
Progressive Mine Workers of America, District #5, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership the same classes of employees as the United.
III. THE QUESTION CONCERNING REPRESENTATION
In the early part of 1939, the United and the Progressive each re-
quested the Company to bargain with it as the representative of the
majority of the employees of the Company. The Company refused
DIAMOND COAL COMPANY 613
to bargain with either the United or the Progressive, stating that it,
doubted their claims to a majority.
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The United and the Progressive contend that the appropriate unit
should consist of all production employees in Mine 1 and Mine 2 of the
Company, excluding superintendents, mine foremen, section foremen,
room bosses, face bosses, top bosses, entry bosses, electricians in a super-
visory capacity, all other supervisory employees, guards, and watch-
men. The Company did not challenge the propriety of this unit. We
see no reason for departing from the unit agreed upon by the United
and the Progressive.
We find that all the production employees in Mine 1 and Mine 2 of
the Company, excluding superintendents, mine foremen, section fore-
men, room bosses, face bosses, top bosses, entry bosses, electricians in
a supervisory capacity, all other supervisory employees, guards, and
watchmen, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to employees of the Com-
pany the full benefit of their right to self-organization and to col-
lective bargaining and 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 employees of the Company can best be resolved by the
holding of an election by secret ballot. The parties agreed at the hear-
ing that in the event the Board directed an election, all the employees
who were employed from May 1 to May 27, 1940, inclusive, excluding
employees who had quit or been discharged for cause during that period
and employees who have since quit or been discharged for cause, should
be eligible to vote. We find that those employees of the Company
within the appropriate unit who were employed from May 1 to May
27, 1940, inclusive, shall be eligible to vote, excluding those who had
283035-42-vol. 24-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quit or been discharged for cause during that period and employees
who have since quit or been discharged for cause.
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. A question affecting commerce has arisen concerning the repre-
sentation of employees of Diamond Coal Company, Providence, Ken-
tucky, within the mealting of Section-9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All production employees in Mine 1 and Mine 2 of the Company,
excluding superintendents, mine foremen, section foremen, room
bosses, face bosses, top bosses, entry bosses, electricians in a supervisory
capacity, all other supervisory employees,-guards, and watchmen, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part, of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Diamond Coal Company, Providence, Kentucky, an election by
secret ballot shall be conducted as early as possible, but not later than
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 production employees in Mine 1 and Mine 2 of the Company
who were employed from May 1 to May 27, 1940, inclusive, excluding
superintendents, mine foremen, section foremen, room bosses, face
bosses, top bosses, entry bosses, electricians in a supervisory capacity,
all other supervisory employees, guards, watchmen, and employees
who had quit or been discharged for cause between May 1 and 27,
1940, and employees who have since quit or been discharged for cause,
to determine whether they desire to be represented by United Mine
Workers of America District #23, affiliated with the Congress of In-
dustrial Organizations, or by Progressive Mine Workers of America,
District' #5, affiliated with the American Federation of Labor, for the
purposes of collective bargaining, or by neither.