Eastern Coal Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1948

79 N.L.R.B. 1165 (N.L.R.B. 1948)

In the Matter of EASTERN COAL CORPORATION and UNITED CLERICAL,
TECHNICAL AND SUPERVISORY EMPLOYEES , DIVISION OF DISTRICT 50,
UNITED MINE WORKERS OF AMERICA
Case No. 9-C-2133.-Decided September 30, 1948
DECISION
AND
ORDER
On January 2, 1947, Trial Examiner Peter F. Ward 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 it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto.' Thereafter, the Respondent
filed exceptions to the Intermediate Report, and supporting brief .2
- On June 24, 1948, the Respondent filed with the Board a motion re-
newing its previous motion for a dismissal of the proceedings in view
of the intervening enactment of the Labor Management Relations
Act, 1947, and asking in the alternative, in substance, that the Board
enter no cease and desist order herein directed toward the Respond-
ent in relation to any supervisors, that it enter no order requiring
reinstatement of any of the supervisors named in the complaint and
that any remedial order be conditioned upon compliance by the com-
plainant union with the provisions of Section 9 (f), (g), and (h) of the
Act as amended. A supporting brief was filed with the motion.
The Board 3 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
3 Those provisions of Section 8 (1) and (3) of the National Labor Relations Act which
the Trial Examiner found were violated herein are continued in Section 8 (a) (1) and
Section 8 ( a) (3) of the Act , as amended by the Labor Management Relations Act, 1947.
2 The Respondent ' s request for oral argument was denied inasmuch as the record, In-
termediate Report, and the Respondent 's exceptions , brief, and motion , in our opinion, ade-
quately present the issues and the positions of the parties.
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -man panel consist-
ing of the undersigned Board Members [ Chairman Herzog and Members Reynolds and
Murdock].
79 N. L. R. B., No. 156.
1165
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions, exceptions, and modifica-
tions :
1. - The Respondent has excepted to the Trial Examiner's unfair labor
practice findings against it primarily on the ground that 'the Trial
Examiner incorrectly resolved questions of credibility. The Board
has considered the record in the light of these exceptions and finds
them to be without merit. Because a Trial Examiner has the oppor-
tunity of observing the demeanor of witnesses who are testifying, it is
the established policy of the Board to attach great weight to his credi-
bility findings and it will not overrule them unless they clearly appear
to be unreasonable.4 In this case, in addition to basing his credibility
findings upon his observance of the witnesses' demeanor on the stand,
the Trial Examiner, as pointed out below in our discussion of individ-
ual discharges, took note of such demonstrable factors as the inherent
probability or lack of probability of testimony, contradiction of a wit-
ness on a material matter by his own contrary statement or by another
witness called by the same party; failure to offer, produce on request,
or account for the absence of supporting records; and failure to call
material witnesses. The Trial Examiner also gave weight to admis-
sions and undenied testimony. We are satisfied that the credibility
findings of the Trial Examiner are not unreasonable; they are there-
fore affirmed.5
4 Matter of R. L. Polk & Co, 78 N. L. R. B. 82; Matter of Robbins Tire and Rubber Com-
pany, 69 N L. R. B 440; Matter of American Gear d Mfg. Co., 69 N. L. R B. 663. Cf.
Matter of Bohn Aluminum (f Brass Corp., 67 N. L. R. B. 847.
The Respondent's attack upon the credibility of Board Witness Riddle in connection
with Kerr's alleged note to "discharge four foremen" is adequately discussed in the Inter-
mediate Report
We are not impressed by the Respondent's effort to cast reflection upon the Trial Exam-
iner for "failing to mention the circumstances" that it had allegedly discredited one Cullen
Smith, a Board witness, through its records. Smith testified that "some time after" May's
discharge and while he worked as a timber man in the section formerly supervised by
May, he overheard a conversation between McKee and Phillips relative to the latter sign-
ing "something" for McKee Smith's testimony was plainly inconclusive, the Trial Exam-
iner based no finding upon it and the Respondent's attempted showing against Smith's
credibility is in itself questionable. Thus, the Respondent produced records of the mine's
assistant general foremen in order to show, by a notation therein, that on November 30,
when McKee and Phillips had a conversation as to a written statement to be signed by
Phillips, Smith was working in the bull-gang on the main line and not in a special section
under a section foreman However, Smith concededly had been doing timbering at about
this time and had worked in May's section at least 3 days during the 11-day post-discharge
period covered by the proffered company records Furthermore, Board witnesses testified
that in their experience it was common practice for the general assistant mine foreman to
arrange to note in his record, as though working for him on the main line, the time of bull-
gang employees actually working in sections under assignment to section foremen
Nor did the Respondent demonstrate that the testimony of Board Witness Virgil Runyon
was inherently unworthy of belief. Virgil told of finding a slip among the papers of Gen-
eral Mine Foreman McKee calling for his own discharge and that, of other union members.
He testified that he did not tell the others of his discovery because he understood that they
EASTERN COAL CORPORATION 1167
- 2. The Trial Examiner has found that the Respondent discrimina-
torily discharged Jacob Runyon, Daniel R. May, Luther Loftis, James
A. Shearard and Virgil Runyon, and discriminatorily demoted John
Wallen because of their membership in and activities on behalf of the
Union in violation of Section 8 (3) of the Act. For the reasons detailed
in the Intermediate. Report and supplemented hereinafter, we agree
with these findings of the Trial Examiner. -
Jacob Runyon
The Respondent contends that General Assistant Foreman Runyon
was at fault in failing to have Section Boss May tear up a portion of
track in May's section and erect a ventilating brattice at the site. Gen-
eral Manager McKee testified that Runyon should have made members
of his bull-gang, the "company men," available to May for that purpose.
We agree with the conclusion of the Trial Examiner both that Runyon
was not at fault and that his conduct in this matter played no part in
his discharge.
The record does not show when McKee instructed Runyon about the
rails and brattice. McKee, who claimed to have first discovered on
November 11, 1944, that his instructions had not been followed, implied
that he had given Runyon the' order some time prior to certain inspec-
tions of May's section which McKee made on October 10 and 11, 1944.8
Runyon, testifying before McKee and not recalled to deny the latter's
testimony as to when the order was given, said only that he relayed
McKee's instruction to May about a week before his own discharge
which occurred on November 15. From this it would appear that
Runyon himself had learned of McKee's wishes but shortly before,
since it is unlikely that one sufficiently competent to be a general
assistant foreman would have delayed over 3 weeks in transmitting
such an order. However, it is not necessary to determine when the
instructions actually were given. Even if the time lag had been fully
as great as McKee represented, we find, as did the Trial Examiner, that
McKee had fully acquiesced in any such delay, preferring that the
limited man-power on hand be used to help more directly to meet the
great wartime demand for coal rather than for other purposes.
were going to be discharged in any event and saw no reason to cause the boys any more
worry than they already had." McKee denied possession of such a slip . Here a question
of credibility was presented which it was proper for the Trial Examiner to resolve We
find no impropriety in his having considered Virgil Runyon a credible witness and more
worthy of belief than McKee, who had been otherwise discredited.
9 By inadvertence , the Intermediate Report states that McKee alleged that he gave the
instructions on October 11.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Runyon's deferment of work on the rails and brattice fully accorded
with undisputed company policy. As he explained relative to May's
difficulty in carrying out the delayed order,
They [i. e. the Respondent] didn't have so many men. We was
trying to get out all the coal we could. He [May] said he would
get to it as soon as he could. . . . He said he didn't have the
men, he just had a few company men, and we was trying to run
all the coal we could and get by the best we could.
Corroboration of Jacob Runyon's testimony as to the lack of available
company men to be assigned to May for other purposes than to assist
directly in coal production is to be found in the testimony of Virgil
Runyon who had made incidental mention of fruitless repeated requests
for company men for his own section, and the testimony, in addition,
of various company and Board witnesses who told of the extensive,
wartime shortage of labor in the mines. As was the case with Virgil
Runyon, May could not get more company men simply because they
were not available.
It is reasonably clear that the non-performance of the work on
the rails and brattice was not held against Jacob Runyon at the time
of his dismissal. As noted above, McKee testified that on November
11, 1944, a Saturday, he learned that his order had not been carried
out. He testified that on that day he had inspected a portion of
May's section and found an accumulation of gas which May later
removed in several hours. McKee stated that he noted at the time
of his inspection that the rails, lying in the same portion of this sec-
tion, were-still untouched and the brattice still unbuilt. Thus, ac-
cording to McKee, he had learned that day of two conditions of seem-
ing dereliction, one, relating to the rails, allegedly "very important,"
long existent and inexcusable and the other, relating to the gas, read-
ily corrected and possibly due to no one's fault, for, admittedly, the
gas might have accumulated since the last inspection by the fire boss
after the previous shift. Yet McKee, that day, turned his attention
to May alone, in a spirited argument about the latter's responsibility
for the gas accumulation. Runyon was in the office also and McKee
spoke to him but did not mention any neglect on his part. McKee's
own testimony makes very clear the atmosphere of the moment; he was
not concerned with Runyon. McKee told of "fussing" with May
about the gas while leaving Runyon, sitting by himself some distance
.,apart, at another desk, "over there-he wasn't paying any attention
to what we were saying-so I hollered over and asked Jake [in order
to decide an argument with May] where did that brace cut through
and how far was it from the corner of the break to the face . . ."
EASTERN COAL CORPORATION 1169
' McKee's explanation that he "was kept from" then discussing the
matter of the rails with Runyon because the latter was leaving the
office to go home is transparent. He could have detained Runyon.
The fact is that as general manager of the mine McKee knew the pre=
vailing conditions as to the wartime demand for coal and the want
of available labor with which to meet it and needed no explanation
from Runyon.
Furthermore, both Runyon and McKee told of making a joint in-
spection of that very site on May's section on the following Monday
morning, November 13, on account of the gas previously found and
neither one made mention in his account of McKee even then com-
plaining on account of the rails ,and brattice. McKee stated- that he
and Runyon went to the scene solely because of the situation regarding
the gas.7 Only after he had so averred was testimony elicited from
him for the first time, by a leading question, without any previous
foundation, to the effect that he had spoken to Runyon at that time
about the rails and brattice also s Although Runyon was not re-
called to deny this testimony, it is highly doubtful whether McKee
actually did speak to Runyon about this matter. However, whether
McKee did so or not, we find that when he discharged Runyon he was
in no way dissatisfied with the latter's handling of the situation.
According to McKee, whenever he discharged a man, he turned in a
report to General Manager Kerr, his superior, "on some of the things
Ii. e. violations by the employee] as a matter of record, so that when-
ever they want to hire that man back in the future, they can look over
his record and see just what kind of a fellow he was." Runyon was
the first supervisor that McKee had ever discharged. Moreover, he was
a man with 32 years' mining experience, had been 8 years with the
company and held the important position of assistant general fore-
man over Mine No. 71/2, supervising all its section foremen. It was to
be expected that upon making this dismissal, McKee would have used
great care to note Runyon's alleged dereliction, not only for the sake
of the future, but by way of satisfying his superior that his own im-
portant and drastic action had due justification. If this were true
in ordinary times, it would be no less so in wartime when the Respond-
ent had to operate despite a general scarcity of both supervisory em-
ployees and ordinary production men. McKee testified that General
Manager Kerr, in answering the Regional Director's notification that
° Mc$ee testified , "So Jake and I went in on that section, and I went down to make sure
that the gas was clear on that section "
8 Company counsel's interrogation of McKee was as follows
Q. "Now if I understand you correctly, on that Monday morning you took up with
Jacob Runyon the matter of his failure to perform the work over there on fourth and
fifth right butts that you had some time before told him to do?"
A. "Yes, Sir."
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a charge of statutory violation had been filed against the Respondent;
had copied from McKee's report to him. Presumably, Kerr also con-
sulted with McKee before sending his letter. In any event, the com-
munication, as the Trial Examiner has noted, made no mention of any
failure to carry out McKee's order as to the rails and brattice. At
the same time, while silent on this score, the Respondent was satisfied
to try to justify its discharge of Runyon by including accusations in
its letter which were either trivial or demonstrably false.
For example, as one of its specifications against Runyon, the Re-
spondent, with impressive terseness, informed the Board's Regional
Director that Runyon_ knowingly had failed to require May to dis-
continue his "violations" and "derelictions" and that his permitting
the continued existence of dangerous conditions and practices in May's
section
showed such disregard for the very things the Company expected
of this man that he could not with safety to the men- at work be
continued in charge and he was discharged.
McKee, under cross-examination, was forced to admit not only that
he had cleared May of any and every violation or dereliction referred
to in the letter, but also, specifically, that it was not true that he had
fired Runyon "because he was aware of the continued dereliction of
duty on the part of Dad May and because Dad May permitted a number
of unsafe conditions to exist in the mine." More than this, despite
the highly uncomplimentary characterization of May in the letter,
based on information supplied by McKee, McKee had to admit also
that when Runyon was discharged he thought of none other than May
as the one suited to replace Runyon. He had to admit further that
about a week before May's discharge, and long before the letter to the
Board was written, he told May expressly that he produced more coal
than any of his nine other section foremen, maintained "better condi-
tions than any other section foreman I have" and that "if Mr. Kerr
came to me and asked to make a recommendation for general assistant,
I would have to recommend you." 9
D. R. May
The theory of the Respondent's defense was that May was responsi-
ble for certain adobe shooting done in his section. Allegedly, Fire
Boss Shearard found signs of such blasting upon his inspection after
B McKee ' s general credibility is not strengthened by the circumstance that admitting on
one day his high praise of May specifically as his most outstanding section foreman, as set
forth above, and that he was at least "among the best foremen" McKee had working for
him, he sought the folloNcmg day to pare down May's unusual qualifications by contending
that May "was a good foreman , but he wasn ' t any better than lots of others over there "
EASTERN COAL CORPORATION 1171
the November 27 shift and submitted a special written report of. his
discovery to McKee before the November 28 shift began, at the same
time telling McKee that he had heard that May had ordered the shoot-
ing and recommending that May be reprimanded but not discharged;
So apprised, McKee, with Looney, his assistant, allegedly visited the
scene, verified the occurrence of the shooting, established that May
was at fault and discharged May that same day. The Trial Exam-
iner, however, found that as on the morning of November 28, when
Shearard allegedly made his report, the adobe shooting had not yet
taken place, Shearard had not so reported, and that the testimony of
the Respondent's witnesses to the contrary was without foundation in
fact. We agree with the Trial Examiner.
The Respondent assails the Trial Examiner's conclusion as being
against the preponderance of the proof. It argues that it presented
four witnesses, namely : Smith, Phillips, McKee, and Looney, to affirm
that the shooting was done the day before November 28, and that there'
was only the testimony of Shearard to the contrary 10 Concededly,
in considering the question of preponderance of evidence, some weight
must be accorded to the relative number of opposing witnesses, al-
though it is the quality of the testimony which ultimately determines:
Looney can be completely discounted as a witness. According to his
own testimony, he did not see the condition allegedly found until
9 :30 or 10 a, in., 2 to 21/2 hours after the November 28 shift had begun.
This is entirely consistent with the Trial Examiner's finding that
the adobeing actually was done after commencement of the November
28 shift and not before. Furthermore, the Respondent's remaining
three witnesses were opposed not by one but by two Board witnesses,
Shearard and May. Shearard denied any finding or reporting of
adobe shooting on the November 27 shift and both declared that on
the morning of November 28 Shearard had notified May only that
there was steel to be salvaged.',
We next consider the relative quality of the testimony. May, with
a background of 28 years in mining, had served the Respondent as
assistant section foreman for over 6 years, acting also as night fore-
man as need arose. The acts charged against him imply wanton
disregard for the safety of men under his supervision and a want of
11 As noted in the Intermediate Report, Dotson and Smith , removing rails the day before
the visit of Smith and Phillips to the scene , had "shot at" one rail and missed, thereafter
using a cutter on one rail and uncoupling the other . McKee stated that in referring to
adobe shooting he did not mean the joint actions of Dotson and Smith, which , according
to him, had left no trace of an attempt to adobe the rail, but the actual subsequent blast
ing of rails by Smith and Phillips
21 McKee's showing as to open blasting on May's section on November 27, relied on by
the Respondent , was his testimony of getting Shearard 's report to that effect at the end
of that day and verifying it some hours after the November 28 shift had begun.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the mature and conservative j udgrnent that long experience normally
brings. Smith alleged that on receipt of instructions from May to
adobe the rails, he found it necessary to urge upon May that, "It was
dangerous. He was liable to get somebody killed. Also.... if they
found it out, he would lose [his] job." However, the fact that May's
men sincerely accorded him the nickname "Dad" would seem sugges-
tive as to his actual temperament, and the Trial Examiner noted from
his observations, that May impressed him
as a credible witness who, at all times, sought to adhere to the
truth. He appeared to be much above the average as a foreman
and to have been highly regarded by his fellow workers, both
supervisory and non-supervisory. His testimony as a whole, was
remarkably consistent.
The Trial Examiner's opinion would appear to conform more
closely to the objective facts than the accusation raised against May
by the Respondent's witnesses.
Shearard clearly was more than ordinarily trustworthy. Con-
tinuing as a section foreman when the Respondent took over the
mine, he was selected 3 years later to be a fire boss or safety in-
spector. As fire boss he held a position of trust in the highest sense,
for it was solely on his "say-so" as to existing mine conditions that
men felt safe to work in places he had inspected. Shearard performed
the duties of a fire boss for 6 years. Apart from the mine's safety
director, he was the only one whom the Respondent selected from
among all its fire bosses and section foremen to teach mining laws and
safety regulations to candidates for State certification as a section
foreman. It was consistent with the background of responsibility
of the man that he produced a notebook at the hearing which he had
maintained while in the Respondent's employ and which enabled him
to specify as of any date exactly what conditions he had found and
reported in writing to May and to the Respondent itself. His testi-
mony was the more impressive because any falsehood would have been
easy to prove through the original records which he had given the
Respondent, and this would have reflected upon his general credibility
and the disposition of his own claim for reinstatement and back pay.
However, the Respondent produced no records to prove his showing
false.
Considered against the showing made by Shearard, McKee's credi-
bility suffers by comparison. Apparently with the Act in mind, Mc-
Kee expected that he would have to prove due justification for May's
discharge. Immediately after the dismissal he was diligent first to
send another to employees Smith and Phillips who had done the adobe
EASTERN COAL CORPORATION 1173
shooting and next to see them himself so as to make sure to get their
written statements. The Respondent pl eserved their writings and
was able to produce them at the hearing. However, a written report
by Shearard of his discovery of adobe shooting, an act which is a
grave breach of State law and, according to General Manager Kerr,
"one of the most dangerous things in coal mining," also would have
been clearly relevant to May's discharge. If it had ever existed, such
report should have been likewise available when Board counsel asked
for its production. However, McKee, characterizing Shearard's al-
leged report as a "special" report other than his regular report which
admittedly had to be preserved, failed to account for the paper. Hur-
ley, a company witness, claimed to have seen it stored in McKee's of-
fice "some little time" after May's discharge, so that the Respondent
should have had ample opportunity to put it in the same place of safety
where it had stored the carefully obtained statements of Smith and
Phillips. McKee's story, contradicting Hurley, was that he kept the
report, not in his office, where one would have expected it to be kept,
but at his home. Nor are we favorably impressed by the circumstance
that some weeks after May's dismissal allegedly for ordering this
grave mining offense, McKee selected Phillips, who admittedly had
violated the law, for promotion to the position of section foreman in
May's own place. We have noted in connection with the Jacob Run-
yon discharge other respects in which McKee appeared disingenuous,
The unconvincing quality of Phillips' testimony is suggested by the
circumstance that whereas he testified at the hearing that May, having
ordered the blasting, "went back in the back end of the main station
and got a sack of powder and gave it to me," his own written state-
ment, given to McKee 2 days after May's discharge, contradicted his
showing on this material point. According to this writing, he him-
self went to the storage box with Smith, both taking out the powder.
Phillips' testimony was also contradicted by Smith's written state-
ment according to which Phillips alone had taken the powder from
the box.
The testimony of Smith is left. With Dotson, a Board witness,
he had tried to remove the rails on the day before the adobeing, pur-
suant to May's instructions. Smith testified that May told him and
Dotson to "shoot the rails off." Dotson denied this. Not only was
adobe shooting both dangerous and unlawful, but so far as appears,
no practical advantage was to be gained from it?2 It took the two
men but 10 minutes to cut one rail, and its companion was readily
uncoupled. Consequently, there was no reason for giving such an
"Dotson, whom we credit,, testified, "I told [Smith] we could cut it a whole lot easier
than we could shoot it. . . . He said we was going to shoot it anyhow."
509095-49-vol. 79-75
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order. Smith's testimony offends against all probability. If Smith
was as fearful for his very life as he swore he had been, he could easily
have removed the steel without resort to adobe shooting, or else made
complaint to May's superior. He knew that higher management
would have upheld him in either event, for he allegedly gave May
blunt warning that the order to adobe the rails could cost May his
job. For the same reason it is found incredible that May renewed
his insistance upon adobeing the following day, as Smith averred. It
nowhere appears that there were any difficulties that might have made
adobeing necessary or advantageous on this occasion. Smith swore
that:
... [May] came up to me the next morning, told me I failed
to do what he sent me to do and I told him, "No, but I got the
steel! He said, "Yes, but you cut it off. You didn't shoot it."
I said, "I shot at it." He said, "You go back this morning and
shoot it off . . . I mean shoot it off."
Thus according to Smith, May on the first day brushed aside his
plea of extreme danger to life, and also his warning that May was
risking his job. Next, Smith would have it appear that it was not
so much the recovery of the steel that concerned May but rather that
there should be adobe shooting, so that Smith, to placate May, had
to defend against his displeasure by pointing out that even though
he had recovered the rails by customary and legitimate means, he
had, nonetheless, "shot at it." May, the experienced section foreman
who admittedly excelled the other section foremen in keeping his
section in proper condition, was not the man to show such disregard
for proper and lawful mining practice and conditions of safety.1&
Finally, there is the reaction of the Trial Examiner. Having seen
and heard Smith while the latter was on the witness stand, he stated:
Smith, in his testimony and by his demeanor, impressed the
undersigned as a wholly unreliable witness.
In the light of the record we are similarly impressed 14
13 Employee Hunt convincingly corroborated May's testimony to the effect that May had
instructed Smith to resort to a rail cutter if necessary , but had not mentioned adobeing
14 The Respondent contends that there was "perveision of the evidence" by the Trial
Examiner in finding that McKee cleared May of responsibility for all alleged derelictions
save adobe shooting. At page 15 of its brief it notes that Jacob Runyon testified that
May had not "obeyed " his instructions to remove the rails , implying that Runyon thereby
charged May with having disobeyed his instructions However, McKee , Runyon ' s super-
visor, and Runyon both cleared May completely of any charge of dereliction of duty on this
account, agreeing that May had not enough company men to do the job McKee stated
explicitly that any fault in the matter was not May's but Runyon ' s, because Runyon, ac-
cording to McKee, had failed to allocate the needed men to May from Runyon ' s bull-gang.
Furthermore , it is clear that there is no basis for the Respondent ' s charge, made in its
brret, that May was responsible for the condition of gas accumulation found on his section
McKee cleared May of responsibility for this condition , specifically citing the adobe shooting
as "the real reason for the discharge "
EASTERN COAL CORPORATION
James A. Shearard
1175
The Board agrees with the conclusion of the Trial Examiner that.
no-rock was adobed on Shearard's section. In addition to the factors
enumerated in the Intermediate Report, certain other circumstances
are revealing. Adobeing on Shearard's section allegedly was dis-
covered by Fire Boss Farmer on February 2, 1945. Company counsel
conceded, however, that there was no company record of any adobe
shooting on Shearard's section during any portion of February 1945,
and Farmer, for his own part, "didn't remember" whether he had duly
noted the alleged adobe shooting in his report book, a permanent
record kept for examination by State mining inspectors. Farmer
admitted that he thought such a discovery would have been important
enough to be noted, but the Respondent failed to produce Farmer's
report after Board counsel had asked for its production.15
There is no record support for the Respondent's contention that
delay by Shearard in removing overhanging rock helped bring about
his discharge. McKee admitted that Looney's recommendation was
the sole ground for Shearard's dismissal and Looney testified, "I
recommended the discharge simply because I had found the slate that
was shot off . . . that simple thing that I had in mind was the shooting
off of the slate."
Virgil Runyon
We concur with the conclusion of the Trial Examiner that the
Respondent's discharge of Virgil Runyon was not occasioned by any
failure on his part to open up new work places.
Concededly, it was agreed at a meeting between company repre-
sentatives and a committee of production employees which sought
more work for machine crews that four new rooms should be opened
up for coal production to replace four places that had been taken for
gang work. Assistant General Manager Wheeler testified that he
left the selection of the rooms to McKee. According to McKee, how-
ever, Wheeler specified the places to be opened up. Looney, on the
other hand, stated that the rooms were mutually agreed upon by man-
agement and the committee. Thus, since each of the Respondent's
three witnesses contradict one another on the point, it has not been
shown that management and the committee agreed upon any specific
places to be opened. McKee testified that he told Virgil of the ar-
'c Not only did the Respondent fail to show that Shearard had either caused or permitted
adobe shooting on his section , but it further failed to show any preexisting company prac-
tice of holding section foremen responsible for such occurrences without regard to their
being actually at fault. Moreover , it appears that there was no necessity for so stringent
an expedient . According to Safety Director wheeler, as well as McKee and his assistant,
Looney, adobe shooting was very infrequent.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rangements with the Mine Committee and that he instructed him as to
which places to open. Looney and McKee both stated that Virgil had
opened but one of these places. On the other hand, Virgil, admitting
that McKee had instructed him to open four places right away, denied
receipt of any information about the miner's demand and testified that
McKee never named the places which were to be opened. The Trial
Examiner credited Virgil's testimony in this respect and we accept his
conclusion as to Virgil's veracity. Apart from this, it is to be noted
that Virgil, without contradiction, identified by location and number
six rooms which he had opened, in the face of the Respondent's claim
that he had been ordered to open four. Even if it were to be assumed
that Virgil had opened rooms other than those actually specified, al-
though no reason appears for him to have done so, the rooms which he
concededly opened provided new working places in any event. The
Respondent does not contend that these were unsatisfactory for any
reason, leaving it to be understood merely that Virgil had opened only
one room when four were required. Virgil's answer to this contention
was plainly adequate; he had opened six.
John Wallen
During the hearing, the complaint was amended upon motion so
as to allege that Wallen was discriminatorily demoted and later
discriminatorily discharged. By inadvertence the Trial Examiner
deemed the discharge to be not within the issues. Some 61/2 months
after Wallen had been transferred to No. 8 Mine and assigned to
rank and file work, the production employees went out on strike and
the mines shut down. Wallen thereupon asked for a leave of absence,
stating that he wished to take a vacation. Receiving this, he took
other employment for 2 days. When he returned to resume his job,
the Respondent informed him that he had given up his employment
with it when he took a job elsewhere. Admittedly Wallen had been
a satisfactory foreman. At the time of the Respondent's refusal to
rehire him, its coal production had fallen in the face of a driving war-
time demand for coal and there was a shortage of both supervisory
and production employees at its mines. The Respondent, therefore,
had great need for Wallen's services and it is not claimed that Wallen
had breached any rule applicable to foremen by working elsewhere
during the mine shut-down 16 From these facts and the circumstances
16 The circumstance that the union representing rank and file employees had consented
to an arrangement whereby the Respondent was not required to rehire rank and file
employees working elsewhere while on leave of absence from the Respondent has no
bearing here. Wallen was not a true rank and file worker. His demotion , having been,
discriminatory , cannot avail the Respondent . Moreover , the Respondent itself admittedly
EASTERN COAL CORPORATION 1177
attending his prior demotion, we conclude that the Respondent's re-
fusal to reemploy him was discriminatory.
The Remedy
The Respondent contends that the Board is without jurisdiction
to issue a remedial order in this case because any unfair labor prac-
tices found herein involve supervisors who are members of a super-
visors' union affiliated with the rank and file union representing
employees of the same employer. We find no merit in this objection 1'
The Respondent further contends that the Board is without juris-
diction to enter a remedial order in this case because of the effect
of the Labor Management Relations Act, 1947, which removes fore-
men from the category of "employees" under the protection of the
National Labor Relations Act. The Respondent argues that the
general saving statute, 1 U. S. C. A. Sec. 109,18 does not prevent the
Labor Management Relations Act from operating retroactively to ex-
tinguish liability for unfair labor practices which were committed
prior to its effective date. It is the Respondent's contention that
whereas the general saving statute, in terms, states that the "repeal"
of any statute shall not release or extinguish any previously incurred
liability unless the repealing Act shall so expressly provide, the
National Labor Relations Act was not repealed but only amended,
the Labor Management Relations Act declaring at the outset a pur-
pose to "amend" the National Labor Relations Act and containing
no words purporting to repeal any provisions of the National Labor
Relations Act. However, it is well recognized that although the ex-
press term "repeal" be absent, statutory provisions 'can no less effec-
tively be repealed through ostensible amendment19 There can be no
question but that actual repeal of Section 2 (3) of the Act insofar as
it included supervisors within its definition of employees, was achieved
by the subsequent amendatory statute excluding them. Moreover,
deemed him a member of its supervisory staff who allegedly was doing ordinary produc-
tion work only until an opening for a foreman should become available for him.
17Eastern Gas & Fuel Associates v. N. L. R. B., 162 F. (2d) 864, 866 (C. C. A. 6) ; Jones
& Laughlin Steel Corp . v. United Mine Workers, 159 F. ( 2d) 18, 21 (App. D. C.) cert.
denied 331 U. S. 828.
18 1 U. S C. A. Section 109, so far as applicable , provides :
The repeal of any statute shall not have the effect to release or extinguish any
penalty, forfeiture or liability incurred under such statute; unless the repealing
Act shall so expressly provide, and such statute shall be treated as still remaining
in force for the purpose of sustaining any proper action or prosecution for the enforce-
ment of such penalty, forfeiture, or liability. .. .
Ia Henrietta Mining & Milling Co. v. Gardner, 173 U S. 123, 128 ; U. S. v. Kelly, 97 Fed.
460, 462 (C. C. A. 9) ; Rowan v. Ide, 107 Fed. 161, 164 (C . C. A. 5) ; Continental Insurance
Co. Y. Simpson, 8 F. (2d ) 439, 441-442 (C . C. A. 4).
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-the House Committee on Education and Labor noted 20 with respect
to the House bill 21 in which exclusionary language similar to that
now in the Act first appears, that "The Bill excluding foremen and
other supervisory personnel from the definition of `employe,' deprives
the Board of jurisdiction over them." As the Circuit Court of Ap-
peals for the 9th Circuit observed in U. S. v. Kelly, 97 Fed. 460, 462.
We are unable to discover how a law which amends an act
whereby jurisdiction was conferred differs from a repealing act
.. . such amendment is, in effect, a repeal. It repeals pro Canto
the grant of jurisdiction .22
The Respondent alternatively contends that the Board is without
authority to enter a cease and desist order relative to any super-
visory employee in this case. We find this contention valid. As we
stated in Matter of Republic Steel Corp., 77 N. L. R. B. 179:
We agree with the Respondent as to the impropriety of in-
cluding any cease and desist provisions in the Order herein.
These provisions are necessarily prospective in operation and
would enjoin the Respondent from engaging in a course of future
conduct which is no longer unlawful. We shall not, therefore,
adopt this part of the Trial Examiner's recommendation.
The Respondent also alternatively contends that it would be con-
trary to the future-looking policy of the Act for the Board to order
reinstatement and back pay for foremen found to have been discrim-
inated against since the Board's authority is derived from Section
10 (c) which authorizes issuance of orders directed against any per-
son who has engaged or is engaging in any unfair labor practices,
requiring such person to cease and desist therefrom "and to take such
affirmative action as will [future tense] effectuate the policies of this
Act." For reasons stated in the Republic Steel case, we find this
contention to be without merit. 13
The Respondent further contends in the alternative that any order,
save an order of dismissal, made by the Board herein should be made
conditional upon compliance by the complainant union with the pro-
20 H. Rep No. 245, 80th Cong 1st Sess p 13.
2i Sec. 2 (3) H. R 3020, 80th Cong, 1st Sess
22 And see N. L. R. B. v. National Garment Co., 166 F. (2d) 233 (C. C. A. 8), cert. denied
334 U. S. 845, and N. L. R. B. v. The Mylan-Sparta Co., 166 F. (2d) 485 (C. C. A. 6).
See also N. L. R. B. v. Edward G. Budd Mfg. Co., 162 F. (2d) 461 (C. C. A. 6), enforcing
-Board's 8 (3) Order reinstating supervisors with back pay, cert. denied as to that part
of the Circuit Court's decree enforcing the Board's 8 (3) Order, 332 U. S. 840, N. L. R. B.
v. Vail Mfg. Co., 158 F. (2d) 664 (C. C. A. 7), cert. denied 331 U S. 835.
13 See also N. L. R. B. v Edward G. Budd Mfg. Co., 162 F. (2d) 461 (C. C. A. 6) enforc-
ing Board's 8 (3) Order reinstating supervisors with back pay; cert. denied as to that
part of the Circuit Court's decree enforcing the Board's 8 (3) Order, 332 U. S 840. Cf.
N. L. R. B. v. Vail Mfg. Co., 158 F. (2d) 664 (C. C. A. 7), cert. denied 331 U. S. 835.
EASTERN COAL CORPORATION 1179
visions of Section 9 (f), (g), and (h) of the Act as amended. How-
ever, these provisions are prospective in their application and, so far
as applicable here, refer only to complaints to be issued under the Act as
amended. They have no applicability to the instant case wherein com-
plaint was issued prior to the amendment of the Act.24
Charges on behalf of Loftis and Shearard were not filed until June
3, 1946, about 17 months after their discharges. There being no miti-
gating circumstances in connection with this delay, back pay due these
persons shall be computed only from the time the charges naming these
employees were first filed.25
Wallen had been demoted to rank and file labor for a period of 61/2
months, worked for another employer for 2 days while on leave of ab-
sence and was then refused reemployment. No charges were ever filed
as to him but on August 1, 1946, some 18 months after the refusal to
rehire, motion was made at the hearing to amend the complaint so as to
allege discrimination against him by reason of the demotion and the
discharge, and the complaint was amended accordingly. The portion
of Wallen's case concerned with his discriminatory demotion differs
from the cases of Loftis and Shearard, for, as to Wallen, there was due
notice to the Respondent and demonstrably no prejudice was sustained.
As we have previously noted,26 the requirement that charges be
promptly filed has a practical basis. It is intended to assure the em-
ployer of notice of the situation complained of in time for him to
remedy it seasonably and thus minimize back pay. Accordingly, we
have allowed full back pay where it was evident that late filing had not
prejudiced the employer.21 Furthermore, we have held that timely
notice to an employer may be given otherwise than through the filing
of charges.28 The Respondent had been immediately apprised of
Wallen's discriminatory demotion. On the very morning that Wallen
was being assigned to rank and file work at Mine No. 8 instead of to
a foreman's duties he told Assistant General Manager Wheeler what
had happened. Wheeler clearly understood the full import of the
information concededly received from Wallen. Wheeler himself had
issued Wallen a transfer to Mine No. 8 as a foreman, and he knew that
there was a great wartime demand for coal at the time, that produc-
tion at the mine was inadequate and that there was a shortage of fore-
men to speed the work of getting the coal out. Wheeler, informed by
Wallen, replied, "I'll see about that," but let the situation continue.
24 Matter of Marshall & Bruce Co., 75 N. L. R. B . 90 ; N. L. If. B. v. Mylan-Sparta Co.,
166 F. ( 2d) 485 (C. C. A. 6).
26 Matter of Gibbs Corp ., 74 N. L. R. B. 1182, 1196; Matter of Cleveland Worsted Mills
Co., 43 N L. R B 545, 592.
26 Gibbs case, supra, p 1195.
27 Gibbs case, supra, pp. 1195-1196; Cf. Cleveland Worsted case , supra, p. 591.
28 Cleveland Worsted case , supra, p. 591.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent was not prejudiced by the belated motion to amend
the complaint, for it was able to and actually did call, on its own behalf,
all witnesses named in Wallen's testimony, including Wheeler. The
injury to the public right, inflicted through this discrimination against
Wallen, was all the more severe because it occurred during war time.
Since the Respondent actually received timely notice of the demotion
but elected to continue the discriminatory condition and no prejudice
to the Respondent is shown, we conclude that it will best effectuate
the policies of the Act to require the Respondent to make Wallen
whole for his losses in earnings sustained during the demotion period.
However, no circumstances excuse the delay regarding Wallen's dis-
charge and in that respect we shall limit back pay so as to begin as of
the date of the motion to amend the complaint.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Eastern Coal
Corporation, of Bluefield, West Virginia, and its officers, agents, suc-
cessors, and assigns, shall take the' following affirmative action :
(a) Offer to Jacob Runyon, Daniel R. May, Luther Loftis, James
A. Shearard, Virgil Runyon, and John Wallen immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges pre-
viously enjoyed; 29
(b) Make whole Jacob Runyon, Daniel R. May, and Virgil Runyon
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them, by payment to each of a sum of
money equal to the amount he would have earned as wages during the
period from the date of his discharge from the Respondent's employ
to the date of the Respondent's offer of reinstatement, less his net
earnings during said period;
(c) Make whole Luther Loftis and James A. Shearard for any loss
of pay they may have suffered by reason of the Respondent's dis-
crimination against them by payment to each of a sum of money equal
to what he normally would have earned as wages during the period
from July 3, 1946, when charges were filed in his behalf, to the date
of Respondent's offer of reinstatement, less his net earnings during
said period;
2D With respect to John Wallen , by "former position" is meant the position which he had
held on the Respondent 's supervisory staff before his demotion. '
EASTERN COAL CORPORATION 1181
(d) Make whole John Wallen for any loss of pay he may have
suffered because of the Respondent's discrimination against him, by
payment to him of a sum of money equal to the difference between the
amount he normally would have earned in the capacity of a foreman
and the amount he actually received while working as a rank and
file laborer during the period from February 14, 1945, to August 28,
1945, inclusive; and in addition, a sum of money equal to that which
he normally would have earned as wages in the capacity of foreman
from August 1, 1946, the date of motion to amend the complaint so as
to allege discrimination against Wallen, to the date of the Respond-
ent's offer of reinstatement, less his net earnings during said latter
period; 30
(e) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order, as to what steps the
Respondent has taken to comply herewith.
INTERMEDIATE REPORT
Messrs. Hyman H. Ostrin and Allan Sinsheimer, Jr., for the Board.
Richardson and Kemper by Messrs. George Richardson, Jr., Albert S. Kemper,
Jr., and W. T. Hancock, of Bluefield, W. Va., for the respondent.
Messrs. Charles Ferguson, R. R. Humphreys, and Bert M. Castle, of Pittsburgh,
Pa., for the Union.
,STATEMENT OF THE CASE
Upon an amended charge duly filed July 3, 1946, by United Clerical, Tech-
nical and Supervisory Employees, Division of District 50, United Mine Workers
of America, herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Ninth Region (Cincinnati,
Ohio), issued its complaint dated July 11, 1946, against Eastern Coal Corpora-
tion, herein called the respondent, alleging that it has engaged in and is en-
gaging in unfair labor practices affecting commerce within the meaning of Sec-
tion 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 thereon 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) since on or about September 1, 1944, and at all times
thereafter, engaged in acts of interference, restraint, and coercion;' (2) on or
"The amount of such net earnings shall be applicable in diminution only of back pay
accruing after August 1, 1946.
1 Stated generally, these acts are alleged to consist of statements informing employees
that the respondent would not recognize their Union ; that said employees could not belong
to the Union and retain their jobs as supervisors ; threats to break up the foremen ' s Union ;
questioning said employees as to what transpired at meetings of the Union ; making dis-
paraging and derogatory statements concerning the Union; and ordering its high ranking
supervisors to,discharge certain employee members of the Union.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the respective dates following their names discharged employees engaged
at its Pike County, Kentucky, mines :
Jacob Runyon, November 15, 1944
Daniel R. May, November 28, 1944
Luther Loftis, January 30, 1945
James A. Shearard, February 4, 1945
Virgil Runyon, February 18, 1945
and on or about February 15, 1945, transferred and demoted John Wallen and
thereafter refused to reinstate the discharged employees, and refused to reas-
sign the demoted employee to his supervisory status because of their membership
in, and activities on behalf of the Union; and (3) by the acts described above
,the respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
On July 30, 1946, respondent filed its answer and Motion to Dismiss, whereby
it moved (a) that the complaint be dismissed in that it is not sufficient in law
for the reason, among others, that the persons claimed to have been wrongfully
discharged or demoted were members of its supervisory and managerial staff
and not "employees" under the Act, and (b) further answered the complaint
by denying that it had engaged in the unfair labor practices alleged.
Pursuant to due notice a hearing was held in Williamson, West Virginia, on
July 30 and 31 and from August 1 through August 10, 1946, before Peter F.
Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel, and the Union was
represented by its secretary and two international representatives. All parties
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 outset of the hearing the undersigned denied the respondent's
Motion to Dismiss with the proviso that the Motion might be renewed later.
At the close of the Board's case-in-chief, the respondent renewed its Motion to
Dismiss the complaint and to strike the evidence which had been introduced
on behalf of the Board. The undersigned denied the motion. At the close
of the hearing respondent renewed its Motion to Dismiss the complaint and to
strike all evidence introduced in the proceedings. The undersigned reserved
ruling on such motion.
On the respondent's Motion to Dismiss the complaint for the alleged reason
that the discharged and demoted employees were not "employees" under the
Act, the undersigned finds that under the decisions of the Board the supervisory
employees of the respondent as members of the Union are not barred from the
protection of Section 8 (1) and 8 (3) of the Act. In the Eastern Gas and Fuel
Association case 2 the Board considered an identical situation as here exists
and stated :
In a recent decision in the Jones and Laughlin case,' involving the same
Union as that involved in the present proceedings, we had occasion to fully
reconsider the entire question of the status of supervisory employees under
the Act. We there reiterated our previous consistent holding that super-
visory employees such as those here concerned are "employees" within the
meaning of the Act and held that they are entitled to be represented by
' Matter of Jones and Laughlin Steel Corporation , Vesta -Shannopin Coal Division,
66 N L R B 386.
2 68 N. L. R. B. 324.
EASTERN COAL CORPORATION 1183
the Union in the exercise of the rights guaranteed them in Section 7 of the
Act. Our holding in that case, and the rationale upon which it is based,
is decisive of the issue in the instant case.
On the basis of the foregoing, respondent's Motion to Dismiss the complaint on
the grounds that the discharged and demoted employees are not "employees"
under the Act, is denied. The respondent's Motion to Dismiss the complaint
for other and further reasons is disposed of by the findings, conclusions and rec-
ommendations below. Also at the close of the hearing, counsel for the Board
made a motion to conform the complaint to the proof in formal matters. The
motion was granted without objection. Oral argument before the undersigned
was waived by the parties. The parties were afforded an opportunity to file
briefs with the undersigned, and briefs were filed by counsel for both the Board
and the respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Eastern Coal Corporation, with its principal place of business
in Bluefield, `Vest Virginia, is engaged in the mining, sale and distribution of
coal at mines located in the State of Kentucky; during the calendar year 1945
the respondent caused to be purchased, transferred and delivered to its mines
in Pike County, Kentucky, materials valued in excess of $10,000, of which ap-
proximately 10 percent was transported to said mines in interstate commerce
from States of the United States other than the State of Kentucky; during the
calendar year of 1945, the respondent mined at its Pike County, Kentucky, mines
coal valued in excess of $2,000,000, of which approximately 100 percent was
transported from said Pike County mines in interstate commerce to States of
the United States other than the State of Kentucky. The respondent concedes
that it is engaged in commerce within the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
United Clerical, Technical and Supervisory Employees, Division of District 50,
United Mine `Yorkers of America, is a labor organization admitting to member-
ship certain employees of the respondent.
III. THE UNFAIR LABOR PRACIICES
A. The discriminatory discharges and demotion; interference, restraint,
and coercion
1. Events antedating the discriminations
The respondent's mines, all in Pike County, Kentucky, are numbered 1, 11 and
12 located at Hardy, numbers 3 and 8 at Stone ; and numbers 7 and 71/2 located
at McVeigh The mines directly involved in these proceedings are numbers 7,
71/2 and 8.
The mines were formerly owned and operated by The Fordson Coal Company,
herein called Fordson, a concern connected with the Ford Motor Company,
3 The findings in this section are based upon a stipulation entered into by counsel for
the respondent and the Board.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dearborn , Michigan . Fordson operated the mines from 1923 to on or about
May 1936, at which time the respondent purchased the physical assets with
which to mine coal and took over the operation of the mines . With the exception
of the Chief Engineer , the Fordson personnel was taken over by the respondent
in its entirety.
Fordson had operated without a union contract . During June 1936 , the re-
spondent and the United Mine Workers of America , herein called UMWA, en-
tered into a contract and the respondent has continuously operated under work-
ing agreements with the UMWA since that time on behalf of its rank and file
employees . In such contract negotiations , however, the respondent was rep-
resented by the Operators Association of the Williamson Field at the outset,
and in recent years by the Southern Coal Producers Association.
From June 1936 to April 1944, L C. Skeen, who had operated the mines as
manager for Fordson, was general manager of the mines on behalf of the re-
spondent . Skeen died in April 1944. Thereafter, Frank P. Kerr, an employee
of the respondent since June 1, 1941, as assistant general manager took over the
management of mines 7, 71/2 and 8, first , as acting manager and then in June
1944 became general manager. William E. Wheeler , employed by the respondent
on July 1, 1941 , as safety director , became assistant general manager to Kerr
a few months following the latter 's appointment as general manager , but con-
tinued also as safety director.
During June 1944 Kerr appointed Bernard C . Riddle, a former employee of
Fordson, then a general mine foreman at mine number 8, to the position of mine
superintendent over mines 7 and 71/2. Tony Fanto, also a former employee of
Fordson, who had been general mine foreman at mines 7 and 7Y/2 for approxi-
mately 2 years, was continued in that position.
On or shortly before July 1, 1944 , the Union began to organize the supervisory
employees below the rank of general mine foreman , at mines 7 and 71/2. Matey
if not most of the supervisors joined during the first week of July. The Union
received its charter and elected officers. Among the charter members were
Irvin Davis , who became president ; Daniel R. May , who became vice president
and succeeded Davis as president when the latter quit his job on or about Au-
gust 15, 1944 ; James A. Shearard , who became financial secretary ; Parkie Hur-
ley, who became recording secretary ; Luther Loftis, Charlie Helms, Glenn Looney,
Lloyd Farmer and others.
The respondent 's officers and top management learned of the union activity
in July 1944 . Riddle learned from Rufus McKee, then an assistant general
mine foreman , and Fred King, a section boss, that Davis, Shearard , May, Hurley,
Helms and Joe Newman had joined the Union. Kerr testified that he had heard
from Riddle that the foremen were "going to" organize . Lawrence E. Tierney,
the respondent 's president , testified that "sometime in July" he heard that a
Union of supervisory personnel had been organized.
Tierney further testified that he did not believed that it would , "as a practical
matter," be feasible for supervisors to be members of the same international
union as did rank and file employees , and that coal operators are, as a practical
matter from the standpoint of operation , opposed to granting bargaining rights
to supervisory employees . Tierney also testified that the respondent , as a cor-
poration , is not in position to bargain as an "individual" with any group as "we
have our bargaining agency" namely, the Southern Coal Producers Association.
Kerr likewise testified that he did not think " it would be a good thing for man-
agement" if both the Foremen ' s Union and rank and file Union affiliated with
the UMWA.
EASTERN COAL CORPORATION 1185
Following the organization of the Union, a grievance committee composed of
Shearard, Frank Wilson and Glenn Looney was appointed. Wilson on behalf
of the committee requested Kerr to meet with the Union committee. Kerr re-
fused to meet with the committee and stated that he "would take these grievances
up individually ," with the member affected.
The record discloses that the respondent's officials announced to the foremen
generally that it had no objection to them joining or refusing to join the Union,
but also informed the foremen that the respondent, as an operating company,
could not bargain with them directly since it had chosen the Southern Coal
Producers Association as its bargaining representative.
• During September 1944, Kerr told Riddle that there was a "clique up there"
(the 7 and 7Y/ mines ) and mentioned Helms, chief electrician, and Shearard,
fire boss, as part of the clique. Kerr told Riddle "to break it up" as Kerr
did not want to have to step in and do it himself-and that he did not want Riddle
to let him down, since he had "picked Riddle" for doing it"
Kerr included Shearard in the clique and told Riddle to check his work as
fireboss and if he found any [dangerous] places Shearard had failed to date, to
call in the State Mining Inspector and fire Shearard. About a week following
the above instructions, Riddle received a note from Kerr directing him to
"discharge four foremen,"' with no further word as to which foremen were
intended to be discharged. Riddle assumed that Helm and Shearard were to be
included in the group slated for discharge but "didn't know who the third or
fourth man would be."
Shortly thereafter, the three foremen quit their jobs and Riddle informed
Assistant General Manager Wheeler that he was going to "let the other one go"
and thus comply with the instructions to "discharge four foremen." Wheeler
instructed Riddle not to discharge the "other foreman" and Riddle made no
further discbarges6
* Counsel for respondent argue that Riddle testified in effect, that at the time Kerr
selected him as mine superintendent, lie then "picked" Riddle to break up the Union , that
since the Union had not been organized at that time, Riddle's testimony in this connection
is not credible. On the entire record the undersigned is convinced that Kerr used the
language attributed to him by Riddle and in so doing Kerr merely meant to state that when
he promoted Riddle he expected him to comply with all instructions given him, regardless
of his opinion as to their propriety.
I Riddle testified that subsequent to receipt of the note he had delivered it to an agent of
the Federal Bureau of Investigation, herein called FBI, who was investigating the strike
at respondent's mine under the provisions of the Smith-Connally Act During the hearing,
counsel for the respondent stated on the record that the Louisville, Kentucky, office of the
FBI had been contacted and reported that such note is not today a part of the records of
the FBI's Louisville office, that one of the agents who was at the mine in October 1944
had talked with Riddle who said he had received such a note; and that the agent referred
to by the FBI did not see or receive such note. From the above, counsel for the respondent,
in its brief, argued in effect, that Riddle's testimony in this particular to be untrue The
record discloses that more than one FBI agent was engaged in such investigation ; that Kerr
testified that he ordered four "foremen" discharged or transferred, and that it was his
custom, or occasion, to send or leave such notes on his supervisors' desk On the above
and the entire record, the undersigned is convinced and finds that Riddle, a credible wit-
ness, received the note in the manner found above.
The facts found in this paragraph are based on Riddle's credited testimony. Wheeler
was later called as a witness but was not questioned concerning this incident and it is not
otherwise denied.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During July or August 1944, Kerr informed Fanto that he wanted Walter
Horne, a rank and file employee , discharged . Horne had been employed by the
respondent since 1936 . He was an officer of the rank and file union and a
member of its grievance committee . Kerr told Fanto,
Anytime you want to get rid of a man, put him on bossing and get rid of
him,
and suggested that Fanto promote Horne to be a section boss and then fire him.
Fanto did not promote Horne.'
In or about September 1944, Kerr instructed Fanto to discharge Shearard
because he was "one of the leading organizers , one of the leading Union men."
Fanto stated that he saw no reason for Shearard 's discharge since "he hadn't
done anything to the Company," and was doing his work. Thereafter, Fanto
inspected Shearard 's fire run on a certain Sunday and found that Shearard had
not neglected any of his duties as a fire boss.
Kerr also instructed Fanto "to get rid of Luther Loftis," tipple foreman. Fanto
told Kerr that he had no cause "to get rid of Loftis" and took no action toward
"getting rid" of him. On or about September 28, 1944, both Riddle and Fanto
received notice of their discharge, effective as of October 1, 1944.'
Following their discharges, Riddle and Fanto informed some of the Union
members that they had been discharged for the reason that they had refused to
discharge foremen because of the latter's Union membership and activity. There-
after, interest in the Union rapidly declined and by on or about October 15, 1944,
Union meetings were discontinued due to lack of attendance.'
On or about October 1, 1944, Kerr appointed Rufus McKee as general mine
foreman and put him in charge of the 7 and 71/2 mines. He named no one
as superintendent at that time. Thereafter, McKee's only superiors were Kerr
as general manager, and Wheeler as assistant general manager. Prior to his
7 The findings are based on Fanto 's credited testimony Kerr as a witness was not
questioned concerning the instructions given to Fanto , as found above , but was asked if
he had made it statement "of that kind" to Riddle. Kerr replied in the negative. Riddle
had not testified concerning the Horne incident It is apparent that the use of Riddle's
name instead of that of Fanto's was inadvertent and that Kerr intended to deny having
made such statement to either Riddle or Fanto Such denial, however, is not credited by
the undersigned
8 The above findings having to do with Kerr's instruction to Riddle concerning Helms
and Shearard, and Kerr's instruction to Fanto concerning Horne, Shearard and Loftis are
based on the credited testimony of Riddle and Fanto . Kerr categorically denied that he
had made the statements and issued the instructions as found above . His denial is not
credited by the undersigned.
9 Respondent contends, in effect, that since the discharges found and described below
did not occur until November 15, and thereafter , and inasmuch as the foremen had discon-
tinued attending union meetings on or prior to that date, their Union membership could
not have been a consideration for their discharges This contention is without merit.
The record shows that there were widespread rumors to the effect that foremen members
of the Union would all eventually be discharged because of their membership. The Union's
President Davis and Foreman Murphy and Newman voluntarily quit their jobs. Helms
having heard that he was slated for discharge, tendered his resignation to Kerr but it was
not accepted Hurley having heard that lie was to be discharged, discussed the matter
with the new General Mine Foreman McKee, and was told in substance that as long as he
did what he was told he need not fear discharge. From all of which it is clear that the
reason interest in the Union declined , was the real fear on the part of practically all the
foremen that they would be discharged if they continued their activity and membership
therein.
EASTERN COAL CORPORATION 1187
appointment as general mine foreman , McKee had been a section boss.'° On
July 1, 1944 , he was promoted to assistant general mine foreman under Fanto,
and put in charge of 7 mine. Jacob Runyon held a like position at 71/2 mine,
thus it will be seen that McKee had had approximately 3 months of experience
as an assistant general mine foreman before assuming charge of the two mines
on October 1, whereas the record discloses that Fanto had had at least 2 years'
experience as a general mine foreman with the respondent , and Riddle bad had
at least 8 years' experience with the respondent as a general mine foreman at
the time of their discharges.
2. The discharges
a. Jacob Runyon
(1) Events leading up to his discharge
Runyon had worked as a miner on Pond Creek " since 1912 . He began his
employment with the respondent on July 14, 1936, as a coal loader During
1937 he became an "extra" supervisor, and worked as such until 1941. From
1941 to April 1944, he was employed as a section foreman. In April 1944 he
was made an assistant general mine foreman in 7 and 71/2 mines under the
supervision of Fanto. After Riddle's appointment as superintendent, and on
or about July 1, 1944, McKee was made an assistant general mine foreman and
placed in charge of 7 mine. Runyon continued in charge of 71/2 mine. In
the latter position, Runyon had general supervision over four section foremen."
He joined the Union on or about September 13.13 At the time of his appointment
as general mine foreman, McKee, in a discussion with reference to the future
supervision of the mines, stated to Runyon, as follows:
Now, if we do good here, I'm going to be superintendent and you're going
to be (general) foreman. That will get you out of that God-damn Union"
Following his appointment as general mine foreman, McKee transferred Fred
King, a section boss, employed in 71/2 mine under Runyon 's supervision, to the
position of assistant general mine foreman in charge of 7 mine which position
McKee had vacated upon his promotion.
A M. Alley, a track man, was promoted to section boss and placed in charge
of the section formerly supervised by King. About a week after King's promo-
tion 15 anal transfer to mine 7, Runyon requested McKee to have King returned
to his old section as it was a "bad section" to put "green-horns" in. McKee
asked Runyon whom he would recommend to take King 's place as assistant
10 The length of time McKee served as section boss is not definitely disclosed in the record
He was unable to state when , or for how long he had been employed as a section boss except
that he was so appointed some time after the respondent took over the mines
11 Pond Creek is the name by which the territory containing respondent ' s miles is locally
known and referred to.
11 Section foremen are also referred to as section bosses and "cut" bosses, among whom
was D R May. Runyon also had a certain amount of supervision over the fire bosses
working in 71/1 mine
13 McKee had also joined the Union at or about this same time
14 Runyon testified he did not believe that McKee intended to make him general mine
foreman in the event McKee became superintendent because he had heard rumors to the
effect that McKee intended to discharge him. -
15 Assistant general mine foreman held a higher rank and exercised greater authority
than does a section boss but received the same rate of pay as do section bosses.
1188 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
general mine foreman in mine 7 if he was returned to his former position. Run-
yon recommended "D. R. May," to which McKee replied , "Hell, no, he's president
of that God -damn Union." 10
On or about November 7, 1944, McKee instructed Runyon to put Walter Horne
and Bert Hayes, rank and file employees,, then members of the UMWA local's
grievance committee , on as section bosses and thus "get them out of that union,
. . . get them on as foremen and you can fire hell out of them."
Pursuant to such instructions, Runyon offered Horne a position as section boss.
Horne considered the offer for a few minutes and then inquired what section
Runyon referred to and was advised that it was the section then operated by
D R. May. Horne inquired what was wrong with May and Runyon replied
that he would "rather not talk about it." Later on the same day Runyon re-
newed his offer to Horne , in the presence of Kenneth Fowler, a loader and gang
worker then employed on May's section . Horne again asked what section Runyon
had in mind and was told "it was Dad May's section ." When Horne asked
"What 's wrong with Dad May ?" Runyon replied , "Oh, nothing , but ... that's
my order, I have to have an answer . Rufus ( McKee ) said to send him (May)
off this section."
Horne refused to take the section and told Runyon he had been offered sec-
tions many times and he had refused them. The record does not disclose
whether Runyon offered a promotion to Bert Hayes as McKee had directed17
On Monday November 13, McKee "got all over" Runyon and wanted him to
discharge May, contending that on the preceding . Saturday he had found "a
lot of gas" on May 's section . Runyon was reluctant to follow those instructions
and argued that May was a "good man " with which statement McKee agreed.
After considerable further discussion, Runyon agreed that he would discharge
May and they then went to the Dispatcher 's Office whereupon McKee changed
his mind and said, "Jake, don 't fire D. R., I came down here Saturday all foam-
ing and running off the mouth . . . Don't fire him." McKee and Runyon then
went into the mine to May's section to the point where McKee had stated he had
found gas and there was no gas present at that time . Runyon then told McKee,
"Me and you are going to fool around here and both of us are going to get fired."
McKee replied,
Nothing I will do but what I will (not) get fired for and if you want to
put a star in your crown you start firing these sons-of-bitches ( members of
the Union).
Also on Monday , November 13, while Runyon and McKee were in the office,
each at his own desk, McKee asked Runyon , "What kind of a union meeting did
they have yesterday ?" Runyon replied that he did not know, that if "they
were supposed to have one , they had it."
On Tuesday , November 14, 1944, Runyon , who had heard it rumored that McKee
was going to discharge him, went to Kerr and asked to be transferred to number
8 mine. When Kerr asked , "What is the matter," Runyon replied , "Well, I
10 This finding is based on Runyon ' s credited testimony McKee denied that he made
such statement The denial is not credited by the undersigned . McKee 's credibility as a
witness is discussed below in connection with D R May's discharge
17 These findings are based on the credited testimony of Runyon , Horne, and Fowler.
McKee categorically denied having given Runyon such instructions On the entiie record
the undersigned is convinced that Runyon was so instructed It had been found above
that Kerr had given similar instructions to Panto which the latter failed to follow. On
the foregoing and the entire record the undersigned is convinced that McKee mstlucted
Runyon to promote Horne tor the purpose of theieafter discharging him.
EASTERN COAL CORPORATION 1189
would rather not talk., I would just like to get away from up here." In response
to further questioning by Kerr, Runyon stated that he and McKee "fussed
around" ; that McKee wanted him "to fire D. R. May and I didn't know why to
fire him," and then after he had agreed to fire May, McKee told him not to do so.
On the following day, November 15, McKee discharged Runyon and stated :
You have been raising hell to go to number 8. I have got to fire you and
I hope there won't be any hard feelings. [Italics added]
To which statement Runyon replied :
Goddam you, I would steal before I would work for you anyway.-
(2) Respondent's contentions as to the discharge
The respondlent contends , in substance and effect , ( 1) that Runyon, as general
assistant mine foreman with supervision over D. R. May, a section foreman, was
aware of the continued dereliction of duty by May and failed to require him to
either discontinue violation or to correct bad conditions which had been reported ;
(2) that Runyon was likewise responsible for May's failure to remove a certain
track that had been called to May's attention on October 11, 1944; and ( 3) that
Runyon had allowed a string of empty mine cars to be covered by a slate fall,
the impendency of which had been called to his attention and not corrected.
As to the first contention , it had been found below , in connection with May's
discharge , that within a week after Runyon's discharge , McKee not only cleared
May of responsibility for the alleged presence of certain gas discovered by McKee
on May's section on November 11, 1944, but declared that May was doing a
"damn fine job ;" that he had better timbering , better conditions , and mined more
coal than any other section foreman that McKee had ; and that if General
Manager Kerr was to ask McKee to make a recommendation for a general as-
sistant foreman , McKee would have to recommend May. From the foregoing
and the record it is clear that May had not been derelict in his duties, thus
Runyon may not be charged with May's nonexistent shortcomings . This con-
tention is without merit.
As to the second contention , the record discloses that certain tracks on May's
section had been ordered to be torn up for use elsewhere ; that there was a man-
power shortage due to the war which resulted in a reduced tonnage of coal ; and
that May had produced a greater tonnage of coal than any other section foreman
during the fa-11 of 1944 . The respondent contends that the removal of the tracks
was ordered on October 11, 1944, and that it was not until November 11, 1944, that
McKee discovered that the instructions had not been followed . While he cleared
May of any blame for the alleged neglect, he contended that Runyon had both
the men, the authority , and the duty of having the tracks removed.
The undersigned does not credit McKee 's testimony to the effect that he did
not learn until 30 days after lie ordered the tracks removed that his orders
had not been followed. He knew that there was a manpower shortage at the
mine ; that coal tonnage was down ; and that May was producing more coal on
his section than was any of the nine section foremen . Under these circum-
stances, and in view of the war time demand for coal, it is reasonable to assume
that McKee decided to delay the removal of the tracks because of the man-
power shortage . and the fine production record on May's section . This in-
ference is supported by the fact that no such contention was made by Kerr in
809095-49-vol. 79-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his letter to the Regional Director ,38 in which he advanced more trivial reasons
for Runyon's discharge, than the failure to remove the tracks which latter
contention appears to have been advanced as an afterthought. This conten-
tion is without merit.
As to the third contention, which pertains to a slate fall covering certain
empty mine cars, while the record discloses that there was a slate fall which
covered some empty cars, the credible evidence discloses that it occurred some
days after Runyon's discharge. Fire Boss Farmer, a respondent 's witness , testi-
fied in substance, that 3 or 4 days before November 16, 1944, he discovered that
the timbers and headers "was a-breaking ;" that he included the facts in his fire
boss report and verbally reported them to Runyon and to McKee advising them
that if they did not have the empty branch timbered "it was going to fall in on
the empties" ; that he thereafter reported the condition for "at least 3 or 4 days,
anyway, straight" ; and that on the morning of November 16, the slate fell in.
McKee testified that Farmer had reported the conditions to him and that he
went " to Jake" 19 and told him to fix up the side track ; that the fire boss had
reported the conditions to him; and that he assumed that Runyon had also re-
ceived the report. In this connection McKee testified :
Q. Now, what did Jake Runyon say when you called it to his attention?
A. Just kind of smiled and walked off.
Q. Did you follow that up?
A. Yes, sir, on that day I fired Jake. [Italics supplied.]
McKee further testified that he visited the tracks in question and found that
the top was "working" with bits of slate falling, indicating that the top was get-
ting ready to fall ; and that he then went to look for Runyon "to have him fix
this place up " Runyon positively denied that either Farmer or McKee had
reported the alleged unsafe conditions to him or told him to fix up the tracks
containing the empty cars.
John Wallen worked as a section boss under Runyon's supervision. After
Runyon's discharge, Wallen was, on or about November 18, 1946, transferred
to the fire boss job '0 theretofore held by Farmer. Wallen testified that after
be took over Farmer's fire run he discovered the slate fall in question and re-
ported it.
There is an inconsistency in the testimony of Farmer .and McKee, in that
Farmer testified that he had reported the alleged condition three or four times
`'straight." McKee made no reference to multiple reports and testified that he
took the matter up with Jake on November 15 and "on that day I fired Jake."
It is quite unlikely that if Farmer had reported the alleged condition on three
daily occasions before the 15th, that McKee would have delayed discussing the
18 On March 23 , 1945 , the Board 's Regional Director informed the respondent by letter
that the Union had filed charges alleging that Runyon and other employees had been dis-
charged because of Union activities, and requested that the respondent submit facts as to
the reasons for such discharges . On April 5 , 1945, Kerr replied to the Regional Director's
request and as to Runyon 's discharge detailed a number of alleged reasons , on some of
which no testimony was offered herein No mention was made of Runyon 's alleged failure
to remove the tracks referred to above.
Ill Runyon is frequently , in the record, referred to as Jake.
21 Glenn Looney, who was fire boss on third right flat when Runyon was discharged, was
promoted to Runyon's job as assistant mine foreman . Farmer then succeeded Looney's
vacated position , and Wallen took over the fire boss run that Farmer had held on Runyon's
portion of 7% mine.
EASTERN COAL CORPORATION 1191
matter with Runyon until November 15. Farmer's 21 testimony above referred
to is not credited by the undersigned, nor does the undersigned credit McKee's 22
testimony above, to the effect that he visited the tracks in question on that day
and found the top "working with bits of slate falling, indicating that it would
fall at any time," for the reason that if the conditions he depicted actually
existed to his knowledge, he would undoubtedly have rushed an emergency
crew to the tracks with sufficient timbers and headers to protect the empty
cars from the threatened fall of slate. The undersigned credits Runyon's
denial and testimony to the effect that neither Farmer nor McKee had called his
attention to any bad top over tracks containing the empty cars. The under-
signed likewise credits Wallen's testimony that he, as fire boss, was the one who
discovered and reported 13 the slate fall after his appointment as fire boss on or
about November 18, 1944. From the above and the record, the undersigned con-
cludes and finds that the "slate fall" in question occurred after Runyon's dis-
charge and after Farmer's transfer as a fire boss to third right flat and that
neither Farmer nor McKee had called the alleged conditions to Runyon's atten-
tion prior to his discharge. This contention is without merit.
(3) Conclusions
The above and the record disclose that the respondent is opposed to union-
ization by its supervisory employees ; that through its general manager, it
sought to have Riddle and Fanto assume responsibility for discharging certain
Union members in order to discourage membership in the Union ; that after
Riddle and Fanto refused to discharge such Union members and were themselves
discharged,24 the respondent, on October 1, 1944, appointed McKee, who had had
comparatively little experience in mine supervision, as general mine foreman ;
that McKee, unlike Riddle and Fanto, was willing to and did, cooperate with
the respondent by assuming responsibility 26 for the discharge of Union members ;
21 Farmer also gave testimony as a witness in connection with the discharges of May,
Shearard, Virgil Runyon and the demotion of Wallen, all set forth and described below.
His credibility as a witness is discussed in connection with May 's discharge
11 McKee 's credibility as a witness is discussed in connection with May ' s discharge
described below.
23 Although fire bosses file written daily reports , no such reports were offered in evi-
dence herein.
24 Since the complaint does not allege that Riddle and Fanto were discharged in viola-
tion of Section 8 (3) of the Act , the undersigned deems it unnecessary to make any findings
in connection with their discharge.
21 Kerr and McKee both testified that the latter in discharging the five foremen involved
in these proceedings did so without the advance knowledge or instruction on the part of
Kerr. The undersigned does not credit this testimony, particularly insofar as it related
to the discharge of Runyon As found above Runyon, on November 14, 1944, asked Kerr
for a transfer to 8 mine and during the ensuing conveisation informed Kerr of McKee's
instructions to discharge May, when Runyon "didn't know why to fire May." Kerr
admitted having had a conversation with Runyon in which the latter requested a transfer
to 8 mine but fixed the time of the conversation as "along in the middle of October," but
did not specifically deny having talked with Runyon on November 14. In view of the
language used by McKee when he discharged Runyon, the undersigned is convinced that
Kerr discussed Runyon 's discharge with McKee after his November 14 conversation with
Runyon and instructed McKee to discharge Runyon. Moreover, since the record discloses
that McKee lacked experience in mine supervision and had, in the course of 5 months
discharged five foremen, at least three of whom had records of long and satisfactory
service as supervisors with the respondent and its predecessors, it is unreasonable to
believe that Kerr would have permitted McKee full sway in discharging admittedly able
foremen without his advance knowledge or consent. From the above and the entire record,
the undersigned is convinced that McKee discharged no foremen without Kerr's consent,
either expressed or implied, and that McKee sought to assume the responsibility for making
the discharges in order to please the respondent in the lattei's efforts to defeat union
organization by its supervisory employees.
1192 DECISIONS-OF NATIONAL, LABOR RELATIONS BOARD
that in cooperating with the respondent , as aforesaid , McKee first selected D.
R. May, the Union 's president , for discharge , and sought to induce Runyon to
discharge May on grounds subsequently admitted by McKee to have been un-
founded or nonexistent; that when Runyon at first demurred and then finally
agreed to discharge May if he insisted, McKee reversed his tacit instructions
for May's discharge because the "way Jake acted, it appeared to me he didn't
want to accept any of the responsibility for firing May;" and that subsequent
to telling Runyon "if you want to put a star in your crown start firing these
sons-of-bitches," McKee discharged Runyon with words, as follows: "You have
been raising hell to go to number 8. I have got to fire you and I hope there
won't be any hard feelings." It is so found.
Upon the basis of the above and the entire record, the undersigned concludes
and finds that the respondent discharged Jacob Runyon on November 15, 1944,
because of his union membership and because he refused to assist the respond-
ent in discouraging membership in the Union by assuming responsibility for and
discharging D R. May, and by said acts, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
b. Daniel R. May 26
(1) Events leading up to his discharge
May has been engaged in mining since 1916. He was employed by the re-
spondent within a week after it took over operation of the mines . From 1936
until late in 1937 he was employed as a motor man_ He was then promoted to
the position of assistant foreman or section boss, which position lie held 27 until
his discharge on November 28, 1944. On occasions when the night foreman
was absent on vacation or due to illness , May substituted for him. May joined
the Union on or about July 2, 1944 2'; was elected vice president, which position
he held until the Union's first president, Irving Davis, resigned in August 1944,
after which May became president. He held the office until his discharge.
Prior to Riddle's discharge May discussed the fact that he (May) had joined
the Union with him. Riddle told May, in substance, that if he were May he would
not have joined the Union because it was too closely connected with UMWA.
When May replied that since all the rest of the foremen had joined, he was not
going to be left out, Riddle stated in substance, that while May, in his work
under Riddle 's supervison , "had given good service ," he hated to see May get
into trouble 22
During September a strike vote was taken among the employees of the re-
spondent and other mine operators. During this voting time Wheeler asked
26 May is frequently , in the record , referred to as "D . R." May, "Dad" May , and at times
as "Reiner" May.
27 May left his employment with the respondent for about 9 months prior to April 1943,
at which time he returned to his lob as section foreman.
21 Unless otherwise specified all events connected with May's discharge occurred in
1944
zs These findings are based on May's credited and uncontradicted testimony. In this
connection , Riddle testified that he asked May about the Union and if he was a member
of it in an effort to persuade him "not to have too much activity about it 'because' I knew
what was going to take place, there would be trouble and (Riddle would ) have to let a
bunch of them ( foremen) go."
EASTERN COAL CORPORATION 1193
May if he had voted. May replied that he had not thought anything about it.
When Wheeler asked May how he was going to vote on the strike, May replied
that he "never was in favor of the strike." 3o
From April to November 15, May worked under the supervision of Jake Run-
yon. Runyon was, as set forth above, discharged on November 15. Glenn
Looney was then taken off his fire boss run and promoted to Runyon's former
position. May worked under Looney's immediate supervision from November
15 to November 28, inclusive.
May's section extended "over a pretty wide area." He had some 50 employees
under his supervision who worked in small groups and generally in pairs. To
inspect the entire section required about 10 hours, or more time than composed
a normal work day.
At a certain point on May's section where the coal had run out and further
mining had been discontinued, gas would at times accumulate. May caused a
curtain to be put up to stop the gas from accumulating. On or about November
11, McKee informed May that he had found an accumulation of gas at this
point, and found that the curtain had been torn down. On that evening, May,
accompanied by employee Dot Fannin, a brattice man,31 returned to the mine and
replaced the curtain, which had either been "torn down" or blasted down.
As a result of the above incident, May was given a "trial" in the office with
Runyon and McKee present, after which May was informed that he would not
be fired and would be given "another chance."
After Looney took over as assistant general mine foreman, May requested
McKee to authorize the discontinuance of a certain operation because of insuffi-
cient coal. McKee replied that he would have Looney look the situation over
on the following day. Looney did examine the situation and caused the opera-
tion to be stopped. May thereafter talked with McKee concerning this location
and the latter asked May if he could "not close it up so the Ford s3 man couldn't
see how much coal was in there." May told McKee that if the latter would
send a rock drill to the location May "would shoot it in." McKee suggested
that May, having powder in his section, shoot it in without the use of a rock
dril133 May refused to shoot it without a rock drill, as to do so would be to
"adobe"' the wall. He told McKee that he would have to send a rock drill
into the mine if he wanted the opening covered up.86
Approximately 1 week after McKee and Runyon had given May a "trial" on
the alleged gas incident, and determined that he should be given "another
chance," McKee, in the presence of Fannin, stated to May :
Well, Dad, I made a thorough investigation of that accumulation of
gas and find you was clear of it . . . You're doing a damn fine job . . .
31 Wheeler denied having questioned May concerning the strike . His denial is not cred-
ited by the undersigned.
31 A brattice man works on matters connected with the ventilation system of the mines.
31 The record indicates that when the respondent took over operation of the mines from
the Fordson Coal Company, the latter retained some title or interest in the coal contained
in the mines
33 Such operation is known as "open shooting" in which the powder charge is not con-
fined . It is also known as "adobe" shooting , a practice which is admittedly exceedingly
dangerous and is prohibited by the laws of the State of Kentucky.
11 The use of rock drills was subject only to the orders of the general mine foreman or his
assistant and unless either authorized and directed their use a section foreman was without
authority to procure them
35 These findings are based on May's credited testimony. McKee's denial that he sought
to have May use an "adobe" shot is not credited by the undersigned.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keep it up . . . I have been over your section and you have better condi-
tions all around than any other foreman on the job, .. . I wish you all
the luck . . . If, Mr. Kerr had come up to me today and asked me to
recommend a man for general assistant, . . . I would have to say you
because you mine more, to my mind, than any other foreman I've got on the
job 33
Although McKee admittedly praised May's work as found next above, he testi-
fied that he received information that there was smoking in the mines; that
such smoking was "more or less frequent" ; and that he got information of
smoking on May's section. Thereafter, according to McKee, he "dressed just
as near as possible like D. R. May," and accompanied by Looney entered May's
section of the mine and caught the "Coley boy" smoking and discharged hiln.
In this connection, McKee testified :
Q. You drew the inference, then, as I understand you, that this man
thought it was D. R. May approaching?
A. Yes sir.
Q. But he didn't say anything to implicate Mr. May?
A. No sir.
Q. Did you charge D. R. May with that or talk to him about it?
A. No, sir. I just told him I caught a man smoking?
33 This finding is based on May's credited testimony as corroborated by Fannin. In
this connection McKee testified :
Q Do you remember having a conversation with D. R. May shortly before he was
discharged, and in the presence of Dot Fannin?
A Yes
Q In which you said, `Dad, you are doing a damn fine job. We have 9 section
foremen and the bug dust crew and they only run about 200 to 600 tons of coal each
shift but you run between 500 and 600 tons of that coal yourself You keep your
section in better shape You have got better timbering and better clearance and you
keep better conditions than any other section foreman I have If Mi. Kerr came to
me and asked me to make a recommendation for general assistant, I would have to
recommend you ' Remember making that statement?
A Yes sir, I remember talking about that
Q And that took place certainly after the events of October 11th where you made
a number of inspections and the event of November 1, 1944 when you made inspection?
A. Yes sir.
Q. So that so far as you were concerned, one week before D R May was discharged,
he wus one of the best foremen you had working for you?
A. One among the best.
Q. He was one of the best?
A. Yes sir.
87•The record discloses that McKee and Looney could have fared as well in their search
for smokers in sections other than Mays. With reference to smoking in the mines, Kerr
testified
Q So that unless he (a section foreman) had personal knowledge of the men smoking,
he would not be discharged just because the man was smoking'
A No, because I think there is smoking, and have reason to know there is, on
sections every day, but they haven't been caught.
Q. And you haven't fired the section foreman
A. He doesn't know
In this same connection McKee testified
Q Lots of men were smoking all over the mine, weren't they o
A Yes.
EASTERN COAL CORPORATION 1195
During his pre-shift inspection of May's section , made early on the morning
of Monday , November 27 , Fire Boss ' Shearard discovered that certain rails in
an abandoned portion of the mine had been or were being covered by falling slate
or rock. While this condition created no hazard, it was advisable that the rails
or "steel" be recovered for use elsewhere in the mine . Shearard reported these
conditions in his fire boss report and personally to May, before the latter and his
crew entered the mine that morning. On this same day (November 27) May
instructed Scott Dotson , a company man,3D and Ralph Smith , a track man, to
remove all the slate that was reasonably possible , and if necessary , to use the
rail bender and "cut" the rails. Dotson and Smith started to the location of the
rails and while en route they encountered Kenneth S. Fowler, a loader on May's
section. With Smith acting as spokesman they borrowed a cable and "shooting
stuff" from Fowler and proceeded to the slate fall. They attempted to "shoot"
or "adobe" the "left hand" rail and missed it. They then, with the use of a rail
bender and the cutter, severed the left hand rail. They uncoupled the other or
`'right hand" rail but left a portion of the "cut" rail still exposed to view.
In making his pre-shift fire run on the morning of Tuesday, November 28,
Shearard noticed the portion of the rail that was "sticking out" from under the
slate fall. He got in touch with May before the shift time on that same morn-
ing (November 28) and told him that on making his fire run he "discovered the
condition exactly as it had been on Monday. There was still about three feet
of the right-hand rail sticking out from under the rock fall."
While en route into the mine in a mine car in company with Lawson Hunt, a
coal loader , James Phillips , a timber man , and others, Phillips asked May for
his orders. May informed Phillips that :
They're riding me all over the place for that steel under that rock. I
want you to take the cutter and go there the first place this morning and
move that.
Phillips accompanied by Smith went to the slate fall and without May's knowl-
edge, shot or "adobed" two rails in the end "next to 8 right" (or upper end),
but did nothing with the other (or lower) end of the rails (that Dotson and
Smith had worked on the day before) "except cover them up." 40 Shearard next
visited the slate fall on his fire run on Wednesday morning, November 29, and
uncovered rails at the point where he had observed a portion of one rail "sticking
out" on November 28, and found that the rail had been cut off about 2 feet
from the edge of the rock (pile) and had then been covered with rock or slate.
At the end of the work day on November 28, and after May had made his daily
reports, McKee called him outside the office and said, "I guess we're going to
have to discharge you." When May asked the reason he was being discharged,
McKee said , "Your work is not satisfactory." May then stated "you know that
A fire boss makes pre -shift inspections of a designated portion of the mine He
examines all working places for dangerous conditions and for gas . He also examines old
entrances to abandoned sections of the mine for gas He marks or "dangers off" such
working places ; makes a written report to the general mine foreman ( which section fore-
men examine before shift time ) , and personally discusses conditions with the section
foreman
30 Company men , unlike coal miners and loaders , who are paid on a tonnage basis, are
paid by the hour and are assigned work at different jobs as the occasions may require
40 The findings covering the events of Novembei 27 and 28 are based on the ci edited
testimony of Shearard , May, Fowler, and Hunt. The uncorroborated testimony of Smith
and Phillips , and the versions of McKee, Looney , Farmer and Hurley are not credited by
the undersigned
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not so, ... my work was satisfactory before I joined the Union and I don't
see why it shouldn't be now." McKee replied that was not the reason, but did
not inform May wherein his work was unsatisfactory.41
(2) Respondent's contentions as to the discharge
At the outset of the hearing the respondent contended that May's discharge
resulted from many alleged derelictions. During the hearing McKee testified
in effect that by on or about a week before May's discharge he had cleared May
of all such derelictions,42 "but the real reason was that I discharged him (May)
was the adobe shooting," which occurred on November 28. (Emphasis supplied.)
In connection with the "adobe" incident, the respondent contends (1) that
May ordered and was aware that the adobe shooting had occurred; (2) that
Shearard reported the adobe shooting to McKee in writing, following his fire
run on the morning of November 28; and (3) that as a result of such written
report, Looney and McKee on November 28, investigated the slate fall, confirmed
the written report, and as a result thereof discharged May.
As to the first contention, Smith testified, in substance, that May instructed
him to "shoot the rails off" under the slate fall as far back under the sale as
he could get, and cover it up ; that Dotson 42 was assigned to assist him; that
he shot at the "left hand rail," missed it, and then took the cutter and "finished
cutting it off" ; that he uncoupled the other or right hand rail and removed all
of the severed rails, "but just about that much (indicating) of the rails stuck
out where I cut it off" ; that he made no report to May, who, however, came
to Smith the next day, November 28, and told him that he had failed to do as he
was told in that he had "cut it off" ; that May then said, "You go back this
morning and shoot it off-I mean shoot it off" ; that on that morning, November
28, he and Phillips went to the slate fall and shot the two rails "off on the fer
(sic) side," covered that end up, took the pieces with them and gave them to a
coal loader ; that he made no report of the matter to May ; and on "the second
day after Mr. May was discharged" at the request of McKee, he signed the
following statement :
I RALPH SMITH, WILL SWAR (sic) TO THE FACT THAT D. R.
MAY INSTRUCTED ME TO TAKE POWDER FROM THE STORAGE
BOX IN 1 L. F.; 7Y M. AND SHOOT OFF ENDS OF RAILS IN #2 R. B,
HDG. AND THAT I TOLD D. R. MAY THAT IT WAS BONG (sic) AND
THAT HE WOULD GET IN TROUBLE. HE STILL DEMANDED I
SHOOT THE DOBY (sic) SHOTS I TOOK MR. JAMES PHILIPS, "A
TIMER MAN" AS A WITNESS, THAT I WAS INSTRUCTED BY D. R.
MAY WITH ME TO DO THE JOB. AND WE SHOOT OFF ENDS OF
RAILS WITH 2 DOBY (sic) SHOTS. PHILIPS TOOK OUT POWDER
FROM BOX AND CARRIED TO #2 R."
[S] RALPH SMITH.
41 This finding is based on May's credited testimony McKee and Looney's version of
the events occurring at the time of the discharge is discussed below.
42 McKee testified in substance that notwithstanding he had cleared May of such charges,
the mere fact that they had been made constituted a blot of May's employment record.
41 Dotson credibly testified and the undersigned finds that he accompanied Smith when
they attempted to recover the steel on November 27, that May gave them no powder or
instructions to "shoot" or "adobe" the rails; and that he made no report to May that he
and Smith had attempted to adobe the rails.
44 The undersigned does not credit Smith's testimony to the effect that May ordered him
to shoot the rails on either the occasion that he and Dotson went to the slate fall or on
EASTERN COAL CORPORATION 1197
Phillips testified that at the time May directed him to recover the rails, May
went into the back end of the mine station and got a sack of powder which he
gave to Phillips and instructed him to go to "Number 7 room right butt, to
shoot some rails down" ; that May said he had "sent Smith down and he missed
them"; and he wanted them shot off; that he (Phillips) told May that he would
shoot them ; that in company with Smith he shot off two rails in the end "next to
8 right," but did nothing with the other end of the rails, except cover them
up ; that he later reported to May who said, "James you done a damn good
job" ; 45 that on the second day thereafter McKee told him that Smith had signed
a statement stating that Smith and Phillips had shot the rails, and, that after
consulting with Smith, Phillips read and signed a statement drafted by McKee,
as follows :
I JAMES PHILIPS (sic) WILL SWAB (sic) TO THE FACT THAT
D R. MAY INSTRUCTED MYSELF AND RALPH SMITH TO SHOOT
OFF ENDS OF RAILS IN #2 B 7 R. D. HDG. OFF 1 L. R., 3 F. 71/2 MINE
WITH DOBY SHOTS. AND WE TOOK THE POWDER FROM STORAGE
BOX IN 1 L. E., 3 R. F. AND SHOT OFF THE ENDS OF RAILS IN #2
R 7 R. B. HDG. WITH 2 MUD CAP OR DORY SHOTS.
[S] JAMES PHILLIPS.
May 46 denied that he had instructed either Smith and Dotson or Smith or
Phillips to adobe the rails, or that he knew that the rails had been adobed at
the time of his discharge . The undersigned credits May 's testimony in this
connection and finds that the rails were shot or adobed without his knowledge
the occasion Smith and Phillips did the actual shooting of the rails Smith , in his testi-
mony and by his demeanor, impressed the undersigned as a wholly unreliable witness. He
would have one believe that May insisted that the rails he severed only by shooting, yet
he took a cutter and actually did cut one rail , and uncoupled the opposite one on the
occasion he and Dotson were sent to recover the rails
"Phillips ' testimony , wherein he stated that May had directed him "to shoot some rails
down" and later told Phillips that he had done "a damn good job," in so doing, is not
credited by the undersigned , since be is convinced that this portion of Phillips ' testimony
is wholly fabricated. Phillips ' testimony was inconsistent . In his direct examination
he testified that May "went back in the back end of the man station and got a sack of
powder and give it to me . . but in his signed statement , he stated , "and we
[Phillips and Smith] took the powder from storage box in 1 F F, 3 R F. and shot off the
ends of the rails .. It should be noted, also , that in his signed statement, set
out above , Smith stated , "Philip ( sic) took out powder from box and carried (it) to
#2 It "
49 May impressed the undersigned as a credible witness who at all times sought to adhere
to the truth He appeared to be much above the average as a foreman and to have been
highly regarded by his fellow workers, both supervisory and non -supervisory His testi-
iaony as a whole was remarkably consistent Respondent 's counsel , in their brief, point
to the fact that in one instance May testified that he sent Phillips to aid Dotson and Smith
but a few minutes after having first instructed Dotson and Smith to do the job, whereas
the record discloses that a clay rather than a few minutes had elapsed between May's joint
instructions to Dotson and Smith and his later instruction to Smith and Phillips In view
of the fact that May had supervision over it large section ; directed the work of some 50
men working a different place throughout the section ; that the task assigned to the 3 men
was more or less a routine one of no special significance ; and the lapse of time between the
date of his discharge and the hearing herein, it is not surprising that he had forgotten that
a day, rather than a few minutes, had elapsed between his first orders to Dotson and Smith
and the second ones to Phillips and Smith His testimony- was consistent as to the sequence
in which he gave the orders and as to the dates upon which he received information and
instructions from Shearard.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or under his instructions. The evidence discloses that some weeks following
the "adobe" incident, notwithstanding he had violated the laws of the State of
Kentucky by adobeing the rails above referred, Phillips was promoted to sec-
tion boss. This contention is without merit.
As to the second contention, McKee testified that on the morning of November
28, Shearard made a written report to him, separate and apart from his fire
boss report, to the effect that the rails in question had been shot off ; and that
Shearard stated that he had heard that May had had his track men do the
shooting.
Farmer testified, in substance, that on the morning of the day May was fired,
.he was present at the mine foreman's office; that he saw Shearard hand McKee
"a yellow slip of paper," which McKee laid down on the top of his desk ; that
he (Farmer) read the slip which stated "that rails had been dobeed (sic) off
Number 2 room in 7 right butt" ; that the slip was signed "James Shearard" ;
that he heard Shearard say to McKee "if I was you I wouldn't fire him. I
would just raise hell with him"; that on the following day [November 29] he
said to Shearard, "Jimmy, who did you fire D. R. May?" and that Shearard re-
plied, "for dobeing those rails off ""
In this same connection Hurley testified, in substance, that on an occasion after
May's discharge while he (Hurley) was in McKee's office "for something, I
don't know exactly what it was," he saw a note on a shelf and on this note
read that the rails had been adobed off in seven right butt number two mine
one left flat and was signed by James A. Shearard.
Hurley further testified that the note was in Shearard's handwriting.
The record conclusively discloses that as of the morning of November 28, no
rails had been adobed on May's section 941 thus there was no occasion for Shearard
to make such a report, or to know that May's track men had done any shooting
at that time. Shearard's testimony above is credited by the undersigned. From
the foregoing and the record it is clear that Shearard made no report on November
28, to the effect that any rails had been adobed on May's section, and that the
testimony of the respondent's witnesses to the contrary is without foundation
in fact 49 It is so found. This contention is without merit.
As to the third contention, as found hereinabove, Shearard visited the slate
fall and rails in question on the morning of November 29, at which time he
found that such of the rails as had not been recovered on the "lower" end had
47 McKee, in his testimony, made no reference to Shearard having made any suggestion
that May be retained Shearard denied telling Farmer on November 29 that he fired May
for adobeing the rails in question The undersigned credits such denial Since the under-
signed finds elsewhere herein that Shearard made no report on November 28, written or
otherwise, that he had found adobed rails on May's section, he does not credit any testi-
mony given by Farmer or Hurley herein not otherwise fully corroborated.
48 The respondent made no contention that any sails had been "adobed" other than these
shot off by Smith and Phillips during the work day of November 28
49 Since it has been found that Sheaiard made no report of the alleged adobe incident on
November 28, 1944, and that the existence of such a report was the invention of McKee as
supported by Farmer and Hurley, who testified that they saw such report, and by Looney,
who testified that he made certain investigations on the morning of November 28, as the
result of said report, the undersigned does not credit any of the testimony of McKee,
Looney, Farmer or Hurley unless such testimony has been otherwise fully corroborated.
Council for the Board introduced certain evidence to the effect that McKee on one occasion
stated that he had joined the Union in order ". . . to bleak up the damned thing." Since
the evidence does not indicate that the statement was made while McKee was general mine
foreman, the respondent may not be held responsible for such statement. The undersigned
finds it unnecessary to determine whether or not the statement was made
EASTERN COAL CORPORATION 1199
been covered up with slate or rock, thus indicating that no inspection of the
rails had as yet taken place after Phillips and Smith had left the site on
November 28.
McKee testified that in company with Looney he viewed the adobed rails on
November 28, and on that same day learned that Smith had had a part in
shooting the rails. Looney, however, testified that he did not hear or learn
of Smith's or Phillips' connection with the matter until 2 days after November
28. Since Looney had directed supervision, as assistant mine foreman, over
May's section, it is unlikely that if McKee actually learned of Smith's con-
nection with the shooting on November 28, he would have delayed for 2 days
in informing Looney of such fact.
Since the record discloses that the rails in question had not been adobed by
the morning of November 28, and that McKee had not received a report to the
effect, McKee could not have sent Looney to investigate the rails on that morn-
ing as the result of a non-existent report and there is no credible evidence
that either Looney or McKee visited the rails at all on November 28. This
conclusion is borne out by the fact that when May was discharged on the evening
of November 28, he was not informed by McKee or Looney that he was being
discharged because of the adobed rails io
The undersigned is convinced that if McKee or Looney knew, at the time
McKee discharged May, that the rails had been adobed they would have informed
May of that fact. This contention is without merit.
(3) Conclusions
Upon the basis of the above and the entire record, the undersigned concludes
and finds that the respondent discharged D. R. May on November 28, 1944,
because of his Union membership and activity, thereby discouraging member-
ship in a labor organization, and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act
c. James A. Sh.earard
(1) Events leading up to the discharge
Shearard was a section foreman with Fordson when the respondent took
over operation of the mines. He continued in this position for 3 years under
the respondent after which he was transferred to a job as fire boss. He held the
job as fire boss until on or about January 13, 1945, when he was again assigned
to a section as foreman. He acted as such foreman for a period of 3 weeks prior
to his discharge on February 4, 1945. Thus it will be seen that he had been
steadily employed as a fire boss by the respondent for over 5i/2 years prior to
January 13, 1945.
60 Looney testified that he was present at the time May was discharged ; that McKee
told May he was "going to let him go" and handed him his discharge slip ; that May looked
at Looney, and said, "You'll be next" , that May gave McKee no opportunity to explain
why he was discharged , and that Looney knew of no further conversation about the dis-
charge. In the same connection McKee testified : that he called May "out to hisself" (sic)
and told him he was going to have to discharge him , that "I no more than got that out of
my mouth than he started cussing" and turned to Looney and told him that he would "be
next" , and that May went back to the office and McKee had no opportunity to talk the
case over with him further.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shearard conducted certain classes and instructed candidates seeking cer-
tification as section foremen, in the mining laws and safety regulations. Such
classes were conducted during hours when he was not engaged at his duties
as fire boss. Night workers were instructed during afternoons and day workers
were instructed during evening hours. He was paid at the rate of time and a
half for this instruction. His last class ran from about October 1, 1944, to on
or about Febuary 4, 1945. During a portion of 1943, be assisted Wheeler in
'conducting classes which the latter had, in his capacity as safety director,
inaugurated. He was the only fire boss or section foreman assigned to such
instruction. Shearard joined the Union, was a charter member and was elected
and served as its financial secretary.
Following their discharges, Riddle and Panto informed Shearard that they
had been discharged, "because they hadn't discharged men that they were asked
to discharge" ; that the respondent was going to get rid of all foremen that be-
longed to the Union; and that Shearard in particular was due to be discharged.
They further informed Shearard that they had been instructed to check his work
after he had made his fire run and if they "found anything" (to justify it) they
could discharge him immediately." On or about January 13, 1945, McKee trans-
ferred Shearard from his duties as fire boss and put him in charge of the third
right flat as section boss."2 When Shearard inquired why he was being trans-
ferred, McKee said he needed him on the section "worse" than he did as fire
boss. Parkie Hurley, who became a section foreman in May 1944, was taken
from third right flat and assigned to Shearard's fire run. Third right flat was
a "two motored section" and larger than most of the other sections. The sec-
tion was not in good condition as to timber when Shearard assumed charge of
it. He immediately went to repairing that condition. He kept three men on
the timbering job, "practically every day," whereas two men were normally
assigned to timbering.
At the close of work on February 4, 1945, McKee said to Shearard, "Jimmie,
I am going to have to discharge you." Shearard replied, "Well, I have been
looking for it, Rufus." McKee stated, "I guess you want to know why, . . . it
is because your timbering is not up to standard in that section."
Shearard then informed McKee that the latter knew as well as Shearard did
that the timbering had been bad on that section and that it was in better shape
on the day Shearard was discharged, than it had been in some time and had been
Improving every day. McKee made no response to this statement, but said that
while Shearard was "fire bossing up there" Looney had found gas in a place
Shearard had reported clear. When McKee said, "Isn't that right, Looney?"
The latter, without making response, "just nodded his head."
This was the first time Shearard had heard of the alleged gas matter. 53 At the
time of his discharge, Shearard had been in charge of third right flat for 18
working days.
51 The record discloses that Fanto did check Shearard's fire run on a Sunday and found
that everything had been taken care of "in the line of duty "
S2 The record discloses that Kerr advised Fanto, "anytime you want to get rid of a man,
put him on bossing (as a section boss) and get rid of him " The record further discloses
that the respondent followed this practice in connection with the discharge of Shearard
and Virgil Runyon and attempted to follow it in the case of John Wallen, who, as set forth
below, evaded a transfer to Shearard's section after the latter's discharge by taking a leave
of absence.
sa McKee testified that at the time he took Shearard off his fire boss run and put him in
charge of third right flat as section boss he did not "discuss with him the reasons for the
change." In this same connection Looney testified that before Shearard was taken off his
EASTERN COAL CORPORATION 1201
(2) Respondent 's contentions as to the discharge
The respondent contends , in substance, that Shearard 's discharge resulted
from a chain of events , " as follows : ( 1) that about a week after Shearard took
over the section , Fire Boss Farmer found a man on Shearard 's section working
ahead of ventilation in a "dangered off" place ; that the following day he found
that the place had been worked again and reported to McKee that Shearard had
disregarded his signal ; that McKee examined the place , found Farmer 's report
to be accurate and took the matter up with Shearard , who, however, denied it;
(2) (a) that 3 or 4 days before Shearard's discharge, McKee and Looney in-
spected Shearard's section and found miner John Perrigan working under a "bad
piece of rock" and learned from Perrigan that Shearard had,"just left ahead"
of the arrival of McKee and Looney, and had said nothing to Perrigan about
the "bad" rock; (b) that a continued inspection disclosed certain rails "piled
out here in the clearance side" of the tracks, thus constituting a hazard, which
had been reported by Farmer and not corrected; (c) that McKee and Looney
found evidence that the "track had slid over" causing the cars to rub against
timbers on a turn; ( 3) that shortly after Shearard had been relieved of his fire
run and assigned to a section he was directed to remove a man station in order to
improve ventilation ; that on or about February 1, 1945, McKee and Looney in-
spected Shearard's section and as to the man station found that he had not
moved it; that on February 4, 1945, Looney went back to the section and found
that Shearard "had done about half of the job of moving the man station" ; and
(4) that on the occasion of the February 1 inspection by McKee and Looney,
Shearard was directed to remove a certain rock over the hallway in the mine ;
that when Looney inspected the section on February 4, 1945, he discovered that
the rock in question "had been shot down by adobe shot ;" that he reported the
"adobe" incident to McKee on that same day and recommended Shearard's dis-
charge. McKee agreed with the recommendation, called Shearard outside the
office and gave him his discharge.
As to the first contenttion, the respondent relies on the testimony of Farmer
and McKee which is to the effect set forth in the contention above. Shearard
denied that he had "allowed any man to work in a place that had been dan-
gered off that was ahead of air." The record discloses that Shearard had many
years' service as a fire boss and was much more experienced in safety measures
than either Farmer or McKee. He was a credible witness and the undersigned
credits his testimony to the effect that he had not allowed a man to work in a
place that had been dangered off ahead of air. Neither McKee nor Farmer
proved to be credible witnesses herein. On the above and the entire record
fire run and given a section-boss job, Looney had found gas on his fire run which he reported
to McKee, and discussed it with Shearard on the following morning, and that Shearard
explained that a certain door could have been left open (after Shearard checked it) The
undersigned does not credit Looney's testimony to the effect that he had discovered gas on
Shearard's fire run after the latter had covered the run or that Looney discussed the alleged
discovery with Shearard.
54 The record discloses that it is always possible to find "something wrong" and in need
of repair in an operating section of the mine In this connection Looney testified:
Q As a matter of fact, Mr Looney isn't it true that even today, no matter what
time of the day or night you may go into a section, you will find something wrong with
it that needs repair?
A. Yes, you can
Q Constantly find things that need to be repaired, that no section is ever perfect at
any time, is that correct?
A That's right.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the undersigned concludes that Shearard did not knowingly permit any man
to work in dangered off places This contention is without merit.
The second contention, as to (a) Only McKee and Looney testified on the
alleged Perrigan incident 65 Perrigan was not called as a witness. The under-
signed cannot, on the basis of the testimony of McKee and Looney, find that the
alleged incident did, in fact, occur Shearard's denial that the Perrigan inci-
dent was reported to him by McKee and Looney is credited. The record indi-
cates that Shearard had much more experience in seeking out dangerous working
places than had either McKee or Looney. His appraisal of a given situation
would be entitled to more weight than would that of McKee and Looney. It is
so found. As to (b) McKee testified that during this inspection he found that
the steel rails had been unloaded in the clearance along one side of the track.
Looney, in his testimony, included the finding of rails in the clearance at the
time of inspection Shearard testified that he did not recall any rails being un-
loaded on the clearance; that if he had received any fire boss orders he cleared
them up every day ; if he found something that could not be cleared up on one
day, it was cleared up the next day.
Farmer, through a witness, was not questioned concerning this alleged episode.
Since the record does not disclose the time the rails were allegedly unloaded in
the clearance, nor contain the fire boss report concerning rails, the record will
not support a finding that Shearard was in anywise guilty of neglect in this con-
nection. It is so found. As to (c) McKee and Looney each testified the track
had slid over in such manner that the cars rubbed against the timbers in cer-
tain places, and that they had reported such fact along with other items to
Shearard. Shearard denied that any report or complaint was made to him,
but admitted "that there were quite a few close timber on the section," and added
that during the 3-week period he was on the section he had "moved any num-
ber of close timbers" and was moving them as fast as his timbermen could get
the material and time to do it. It is undisputed as found above that during
the short time lie was in charge of the section, lie kept three men busy timber-
ing. The credible evidence discloses that the section was a large and somewhat
difficult section to handle ; that when Shearard took it over it needed consider-
able timbering; and that he had in the comparatively short time he was in
charge of the section improved the timbering. Contention (2) (a), (b), and
(c), above, are without merit.
As to third contention, having to do with removal of the man station, the
undisputed testimony discloses that the removal of the man station had been
ordered ; and that at the time of his discharge Shearard had about half of the
work necessary for removal, completed. McKee and Looney testified, however,
that it was important that it be moved quickly and that Shearard had had ample
time to have moved it, since it was only a 2-day job for two men Following
Shearard's discharge he was succeeded by two temporary foremen who super-
vised the section for at least 3 days each, neither was instructed to complete
the removal of the man station. As found below, in connection with the dis-
charge of Virgil Runyon, the respondent advanced failure of its removal as one
of the reasons for his discharge. Shearard denied that McKee and Looney had
66 As is noted below in connection with Virgil Runyon's discharge, McKee testified that
while on an inspection of Virgil Runyon's section he found a loader working under a
dangerous top and made him take it down , that he asked the miner about the foreman
( Virgil Runyon ) and was informed that he "just had left " and gone up to the entrance.
EASTERN COAL CORPORATION 1203
informed him that they had made an inspection of his section and gave him
any reports (tasks) that he failed to clear up His denial is credited.
On the entire record, and in view of the fact that, as is found above, McKee
informed Shearard at the time of his discharge that the reason he was dis-
charged was "because your timbering is not up to standard . ," the under-
signed is convinced that the alleged negligence in removing the man station
was and is but an afterthought, injected into the hearing in an attempt to
justify an illegal discharge. It is so found. This contention is without merit.
The fourth contention has to do with the alleged adobeing of a rock over
the main hallway. According to Looney, he recommended Shearard's discharge
because he found that the slate "was shot off." 58 There Is no contention on the
part of the respondent that Shearard was informed at the time of his discharge
that he was fired because of the alleged adobe shot. In this connection Looney
testified in substance, that, aside from looking over the place and noting that
there was evidence of adobe shooting he did nothing to determine who was
responsible for the shooting; that he held Shearard responsible for taking the
slate down the way it was taken down ; that he had no knowledge as to whether
Shearard ordered the adobeing, that no one working for him has ever told him
that Shearard had ordered the slate adobed; that he at no time discussed the
matter with Shearard ; that he was present when McKee fired Shearard ; that
McKee told Shearard lie was discharging him because his work was not satis-
factory ; that he had been transferred from fire boss to section foreman because
Looney had found gas behind him; that Shearard then asked Looney when and
where he had found gas behind him ; and when Looney told him that he had
talked to him about it the next morning after he "had found gas," Shearard told
Looney that he "was dirty as hell," and walked away from Looney and McKee.
In this same connection Farmer testified, in substance, that on February 2,
1945, he examined the rock ordered taken down and found that "to the best"
of his judgment, the rock had "dobeed (sic) off" ; that he reported to McKee that
in his judgment the rock had been adobed off ; 5i and that he did not talk with
Shearard concerning the adobeing he allegedly found in Shearard's section.
Shearard in this connection credibly testified, and the undersigned finds, that
he at no time had ordered any adobe shooting on his section, that he saw nobody
56 Looney testified
Q And did you and Rufus talk the thing over?
A Yes, we did
Q What conclusion did you come to?
A. To dischaige Shearaid
Q Whose conclusion was that9 I mean , was that conclusion reached by you and
McKee acting together'
A I recommended the discharge simply because I found the slate that was shot off
Q Was that your own conclusion1
A Yes, sir.
Q Based upon what you had found in the mine?
A Yes, sir.
Q Was there any other reason outside of what you had encountered in the mine
which tended in any way to influence }our decision?
A That simple thing I had in mind was the shooting of the slate.
57 Since, according to Farmer's testimony, lie left his die run for a week after February
2, 1945, his report to McKee , if in fact made , would have been made before shift time on
the morning of February 2, 1945, or 2 days prior to the time Looney testified he had
informed McKee that the rock had been adobed Neither McKee nor Looney testified
that any action was taken as a result of Farmer ' s February 2 report ; nor did they explain
why they took no action on February 2 and 3 as the result of such report
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do any adobe shooting in that section ; that at the time of his discharge by
McKee, he was not informed that it was because of adobe shooting ; and that
the first time he learned of such allegation was during the hearing herein.
On the basis of the foregoing and the entire record the undersigned cannot
conclude that there was in fact any adobe shooting done on Shearard's section
during the time of his employment. Shearard was not informed that any had
been done. McKee and Looney contend that before McKee could tell him about
the adobe shot, Shearard walked away. They each testified that McKee, for
the first time, informed Shearard that the reason he was transferred from his
fire run to section boss was because Looney had allegedly found gas behind him.
The undersigned is of the opinion that if McKee and Looney had evidence on
February 4, 1945, that Shearard had been responsible for any adobeing on his
section they would have so informed at that time, and before referring back to
the gas incident which allegedly occurred before January 13, 1945. It is so
found. This contention is without merit.
(3) Concluding findings
From the above and upon the entire record, the undersigned concludes and
finds that the respondent discharged James A. Shearard on February 4, 1945,
because of his membership in and activity on behalf of the Union, thereby dis-
couraging membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
d. Virgil Runyon 68
(1) Events leading up to the discharge
Virgil Runyon was employed by the respondent in July 1941. He worked
as a coal loader for about 6 months and then became a "center boy."" He
next became as assistant foreman, and later was promoted to the position
of fire boss. He held his job as fire boss until one week before his discharge,
when, as was Shearard before him, he was put in charge of third right flat as
section foreman. As detailed below, he was discharged on February 18, 1945.
Virgil joined the Union in August or September of 1944. In late September,
and while Riddle and Fanto were still employed, and McKee was still section
boss on third right flat, McKee stated to Virgil:
You know, I'm going to be the mine foreman here and your brother is
going to be superintendent. I am going to put you on 711/2 mine because
I want fellows that don't belong to the Union.
When Virgil replied, "Well, Rufus, you know I belong," McKee said, "Well, I
don't think your brother 60 will like that very much.
During a part of Christmas week 1944, while the mine employees were on
vacation, McKee on one occasion assigned Virgil to "look after the mines"
and while so employed, Virgil had occasion to look for a blank form used in mak-
ing compensation claims on behalf of injured employees. While doing so he
58 The record discloses that Virgil Runyon and Jacob Runyon are distantly related.
Virgil Runyon will at times be referred to herein as Virgil
59 A center boy, by the use of a plumb, lights and markers, establishes the centers of
spaces being mined or used
60 The brother referred to was Lawrence Runyon. He was not called as a witness.
EASTERN COAL CORPORATION 1205
found an unsigned slip of paper , written in green ink , entitled- "discharge" with
the names of Luther Loftis, J. A. Shearard, John Wallen, Virgil Runyon, Floyd
Farmer, and Raymond Jones on it. The slip designated no addressee,61 and
bore no signature.
Virgil told no one of his having seen the slip, since, as he testified,
I didn't figure it was any of my business . I noticed we was (sic) going
[to be fired] and I wasn't going to cause the boys any more worry than
they already had. (Emphasis supplied.)
On the day that the employees returned to work after the 1944 Christmas
holiday, McKee, in the presence of Virgil Runyon, Shearard, Floyd Farmer, and
Fred King, each of whom was either a section foreman or a fire boss, stated,
"That no one could [continue to] belong to the Union and be a foreman" for
the respondent .62
As is set forth in greater detail below, following Shearard's assignment from
his job as fire boss to third right flat and his subsequent discharge, Looney
instructed Wallen, who was also a fire boss, to take over third right flat as
section foreman. Wallen demurred, then agreed to take over the section and
then before actually taking over, asked for and received a 3-day leave of
absence. McKee then took Virgil off his fire boss job and assigned him as
section foreman to third right flat, which he took over on or about February
11, 1945.
During the week that he was so engaged, Virgil discontinued mining opera-
tions on one right butt on one left fiat due to the fact that it was dangerous to
send a motor into the location until some necessary timbering was done. Virgil
had been unable to get "headers" to replace the broken ones and while he bad
ordered timbers every night to be brought in, none came.
At the close of the workday on February 18, 1945, McKee told him, "I've
got to let you go, Virgil." When Virgil asked why, McKee replied that his
work was not satisfactory and when Virgil asked why his work was not satis-
factory, McKee said, "You have not been working one right butt on one left
flat." Virgil explained that he had not worked it because it was too dangerous
to send a motor into the area until there was some timbering done and that he
had not been able to get headers to replace those broken and that he had
_ordered the timbers every night and none had been sent in, to which McKee
replied, "Well, hell, Virgil, I hivve to let you go." (Emphasis supplied.)
(2) Respondent's contentions as to the discharge
The respondent, in substance, contends, (1) that within 2 days after his taking
charge of the section, McKee instructed Virgil to complete the removal of the
m The record discloses that Wheeler used green ink in his office and Virgil assumed that
be had written the slip. The record further shows that other mine officials also used green
ink. Wheeler denied that he had written the slip and McKee denied that any such slip
was in his office. Virgil Runyon was a credible witness, and while the undersigned does not
find that Wheeler had in fact written such slip, he is convinced that the slip was among
McKee's effects and was seen and noted by Virgil Runyon as found above . McKee's
credibility as a witness is discussed elsewhere herein.
e2 This finding is based on Virgil Runyon ' s credited testimony as corroborated by the
testimony of Shearard, who testified that he, Virgil Runyon and Floyd Farmer were present
on the occasion above referred to, along with others whose names he could not recall.
King was subsequently called as a witness by the respondent but was not questioned con-
cerning Virgil Runyon's testimony in this connection. Farmer testified that he had not
heard any such statement at any time. Farmer's testimony in this regard is not credited
by the undersigned.
809095-49-vol. 79-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man station ( which Shearard had started ) and to open four new coal rooms
for' operation by the machine crew, and that he had neglected to complete either
assignment by the end of the week; '(2) that Virgil had discontinued mining
operations in certain "rooms" before all available coal had been recovered
by permitting his miners to move to rooms where coal was easier to mine, thus
indicating that he had no control over his men ; and (3) that during an in-
spection trip McKee and Looney discovered a miner working under a danger-
ous "top," which they immediately caused to be taken down , and upon inquiry
learned from the miner °3 that "the foreman [Virgil Runyon] just had left . . ,
thus indicating inattention and carelessness on Virgil 's part.
As to the first contention , McKee testified that both he and Looney had instructed
Virgil to remove the man station and open up four new rooms for the machine
crew and explained that both jobs were very important ; that such instruction
had been either on the first or second day after Virgil took over the section ; that
toward the latter part of the week .°" McKee and Looney inspected the section
to see whether the work had been done and found that the man station had not
been moved and only one of the four rooms had been started ; that Virgil had
had plenty of time, opportunity and men to have done the work at the time of
the inspection , and had not requested additional help. Virgil oil the other
hand testified that he had no specific instruction to move the man station and
was "never directed to turn in any special place ( rooms ) ;" and that he did turn
in at least six places during the one week he was on the section.
While McKee and other ' respondent witnesses testified that the removal of
the man station was urgent , the record discloses that at least a week elapsed
between the time Shearard was discharged and Virgil took over the section,
during which time Charles Daugherty , a section foreman from number 7 mine,
supervised it for about 4 days and one Coley was in charge for the balance of
the week and neither finished moving the man station . McKee testified that
he did not remember whether Looney directed Daugherty to move the man sta-
tion or not . According to Looney , Shearard had the materials assembled and
only a day and a half time would have been required to complete that task. If
the removal of the man station had been truly urgent 8° either Daugherty or
Coley would have been ordered to move it. Since as the undersigned has found
above that at the time of the discharge McKee stated that Virgil 's work was
unsatisfactory and when asked "why " it was not, McKee assigned Virgil's al-
leged failure to continue mining certain rooms as the reason and made no men-
tion of the man station , the undersigned is of the opinion and finds that the "man
station" issue was urged merely as an afterthought to justify Virgil 's discharge.
As was the case of the man station , McKee made no reference to the alleged
failure to open four additional coal rooms or places" at the time of the dis-
charge. It is undisputed that Virgil opened up at least six new places. The
83 The "miner" was not called as a witness.
84 Virgil worked as section foreman for 1 week.
65 Wheeler testified that he ordered the man station change because a federal inspection
had been made , and the Inspector recommended that the area be split ; that he then told
McKee that he had better "get this done before" another inspection was had.
48 Both McKee and Wheeler testified that the opening of four new places or rooms grew
out of a demand from a miner ' s committee McKee named Walter 'Home, Bert Hayes and
"Trap" ( Kenneth ) Fowler, as the committee , all three of whom were called as witnesses.
Horne testified before and Hayes and Fowler testified after McKee and Wheeler. None of
the committeemen were questioned concerning their alleged demand for the, opening of
new places.
EASTERN COAL CORPORATION 1207
credible evidence discloses that McKee made no mention of the man station or
of the alleged neglect in opening up four new rooms at the time of the discharge.
The undersigned credits Virgil's testimony to the effect that no specific instruc-
tions were given concerning the man station and no special places or rooms
were designated for opening. This contention is without merit.
As to the second contention, the record discloses that at the time of Virgil's
discharge, McKee informed him that his work was unsatisfactory in that he
had "not been working one right butt on one left flat " 6l Looney testified that
on their inspection trip made the day of the discharge he and McKee found
work had been discontinued. McKee testified that Fire Boss Farmer had re-
ported about rooms "that had been pulled out and he could not get working."
Virgil testified as set forth above that he had not worked the rooms in question
because it was too dangerous to send a motor into the area until there was some
timbering done; that he had ordered timbers every night, and none was sent in 8°
Virgil's testimony is credited by the undersigned. This contention is without
merit.
As to the third contention, which was not at the time of the discharge given
as a reason therefor, but advanced at the hearing in support of the respondent's
contention that Virgil was an inefficient and careless foreman. McKee and
Looney testified that a similar incident occurred during ^Shearard's supervision
of the section. In neither case was the miner who was supposedly working
under dangerous places, with the knowledge of his foreman, called as witness.
The credible evidence will not support a finding that a "miner" was, with Virgil's
knowledge, working under a dangerous top. This contention is without merit.
(3) Conclusions as to the discharge
The above and the entire record disclose that Virgil Runyon had served satis-
factorily as a fire boss for more than 31/z years ; that the respondent was deter-
mined to discourage union organization of its supervisory employees ; that it was
more difficult to find a plausible pretext for the discharge of a fire boss than it
was for the discharge of a section foreman ; that Virgil Runyon, like Shearard
before him, was transferred from his fire run to section foreman, in order that
the respondent's agents could devise a plausible pretext with which to mask its
discriminatory discharge ; and that since the reasons assigned for such discharge
are each without merit, the undersigned finds that the respondent discharged
Virgil Runyon on February 18, 1945, because of his membership in and activities
on behalf of the Union, thereby discouraging membership in the Union, and
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
e. The demotion of John Wallen
(1) Events leading up to the demotion
Wallen has been engaged in mining since 1927. He was employed by Ford-
son at the time the respondent took over the mines. Prior to May 1, 1944,
67 Virgil had, allegedly , discontinued mining before all available coal had been recovered.
68 McKee and Looney both denied that Virgil had ordered timber sent in. Their denials
are not credited. McKee testified that the places were subsequently worked without
setting any additional timber, "other than four straight timbers on the wire side . . ,
[Italics added] Farmer testified that Section Foreman Roy Alexander worked the places
after Virgil left and "not to my knowing" were new timbers added. Farmer's testimony
in this connection is not credited.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallen worked as a coal loader, and on that date he was promoted to section
foreman. He worked under the supervision of Jake Runyon and McKee during
the time they were assistant mine foremen. He joined the Union in July 1944.
On or about November 18, 1944, following the discharge of Jake Runyon, he
was transferred from section foreman to fire boss by Looney, Jake Runyon's
successor at 7Y mine.
A few days following Shearard's discharge on February 4, 1945, Hurley, in a
conversation with Wallen, informed the latter that he was going to be transferred
to third right flat section from which Shearard was discharged. When Wallen
told Hurley "I really don't want third right flat," Hurley said, "You might as
well go ahead and take it because you are next . . . you're on the slate." '9
On the morning of February 10, 1945, as Wallen was getting ready to go home, after
having made his preshift fire run, Looney said, "don't you come to work tonight,
John. You're coming out in the morning to work ; go down on third right flat."
When Wallen said, "Glenn, I don't want that section, I personally don't want it,"
Looney replied, "Well, the boss [McKee] said to tell you to take that section." 70
Wallen then said to Looney:
Glenn, if you're sending me down on third right flat just to fire me, there
is not any use of me going down there for just a week; just as well fire
me now.
To the foregoing statement, Looney said, "Come on over and get your discharge,
then." Looney and Wallen then proceeded to McKee's office where Looney asked
McKee to write out a discharge for Wallen. McKee did so without comment
and tendered the discharge to Wallen, who said, "State on there the reason why
you are discharging me." McKee asked Looney why he was discharging Wallen.
Looney stated that Wallen had refused to go to third right flat. This statement
was denied by Wallen, who said that he had not refused to go to the section and
agreed that he would do so. McKee then destroyed the discharge slip. A few
minutes later Wallen requested a 3-day leave of absence which request was
granted. Looney wrote out the slip.71
During his leave of absence, Wallen reported the treatment he had received
at the hands of Looney and McKee to Kerr. Wallen went to the mine on
February 13, 1945, the day before his leave was to expire in order to inform
Looney that he would report to work on the next morning. At this time Looney
tendered Wallen a second discharge. Wallen refused to accept it and asked
why it had been offered since he had agreed to return to work on the next day.
Looney replied, "The Boss said to give it to you." - Wallen then proceeded to
McKee's office and found him in. McKee then asked Wallen if he wanted to go
to No. 8 mine as a section foreman. Wallen said, "I don't care." McKee then
stated, "All right, then, we'll send you down to number S. There's a section down
°0 These findings are based on the credited testimony of Wallen , as corroborated by that
of Virgil Runyon. Hurley denied having had such a conversation. His denial is not
credited by the undersigned . Hurley 's credibility as a witness is discussed elsewhere herein.
70 McKee testified that he had no knowledge that Looney had ordered Wallen to take
charge of third right flat section, until the two "came quarreling into" his office. Looney,
however, testified that Wallen was a fire boss at number 7 mine, and thus was not under
Looney ' s jurisdiction and that McKee "designated John Wallen to fill that place."
71 On that same day following the granting of a leave of absence to Wallen , Virgil Runyon
was, as set forth hereinbefore , taken from his fire run and assigned to third right flat as
section foreman.
EASTERN COAL CORPORATION . 1209
there." 48 Wheeler then entered McKee's office and asked Wallen if he wanted to
go to number 8, "as section foreman down there?" As was the case when re-
plying to McKee, Wallen again said "I don't care." Wheeler then gave Wallen
a transfer as section foreman to number 8 mine. Wallen reported with the
transfer the next morning February 14, 1945, and presented himself to Harold
Brogan, general mine foreman at number 8 mine. Brogan said that he did not
have a foreman 's job as "he done promised another man that job and he done
gave it to him." When Wallen complained that he was sent down as a foreman,
Brogan said he would give Wallen something else to do, until the next opening,
"then I will place you up." Wallen was assigned to a rank and file "company"
man's job, loading slate. On that same morning Wallen met Wheeler and
informed him that Wallen had been assigned to a slate job. Wheeler asked,
"He didn't give you that section?" When Wallen answered in the negative,
Wheeler said, "I'll see about that." Wallen was never given a supervisory job
at 8 mine and worked as a rank and file employee until his discharge as such
on September 2, 1945.48
(2) Respondent's contentions as to the demotion
The respondent contends, in substance and effect, (1) that Looney's attempt
to transfer Wallen from fire boss to section foreman on third right flat was not
made for the purpose of finding a plausible excuse to discharge Wallen because
of the latter's union membership; and (2) that Wallen was transferred to
number 8 mine at his own request and willingly accepted a demotion to a rank
and file job in order that the transfer might be effected.
As to the first contention the record discloses that it was the practice of the
respondent to transfer fire bosses to section foremen and to promote rank and file
employees to section foremen where it sought plausible excuses to justify their
discharges. Thus, as found above, it caused the transfer of Shearard and Virgil
Runyon from fire bosses to section foremen and later discriminatorily discharged
them. Also as found above, it sought on two occasions to have Horne, a rank
and file employee and member of the UMWA Local's grievance committee,
accept a promotion as section foreman, in order that it might find a plausible
excuse for his discharge. Third right flat was a large and difficult section to
handle. That it was used as a convenient section to put a man on bossing "and
get rid of him," is apparent from the record. On the above and the entire record
the undersigned is convinced and finds that Looney, at McKee's instruction,
sought to transfer Wallen to third right flat for the purpose of later discharging
him. This contention is without merit.
As to the second contention, respondent's witnesses testified to the effect that
it was a definite policy to discourage transfers from one mine to another ; that a
72 At the time Wallen received his tranfer as a section foreman to No. 8 mine, McKee
gave him a signed statement , reading as follows
Mr Ford (superintendent at No 8 mine) 2/13/45
It is OK for John Wallen to work at #8 mine. He does good work as a foreman or
fire boss.
(S) Rurus McKee.
"The record indicates that at a time when number 8 mine employees were on strike,
Wallen procured a leave of absence as a rank and file employee and then went to work for
another mine company, after which he sought to return to his rank and file position with
the respondent, but was refused reemployment. It appears that as a rank and file employee
he was not entitled to reemployment and all of which has no bearing upon the issues
herein.
1210 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person transferring must first procure the consent of the mine foreman of the
mine to which he wishes to transfer ; that Wallen had applied to Mine Foreman
Brogan at No. 8 mine in November 1944 and on or about January 1945, for a
foreman's job and was informed that both vacancies he sought to fill had been
promised to other men ; that about February 15, 1945, he again applied, and
when told that there was no vacancy, Wallen stated that he could not get along
with McKee and would "take anything" ; that he was offered "miscellaneous" work
in the mine, and he said, "Well, I'll take that" ; that thereafter he went and
"got his transfer 74 and came back and reported to work."
The record discloses that on February 13, 1945, McKee gave Wallen a
statement to the effect that it was "OK" for Wallen to work "at #8 mine" and
that Wallen did "good work as a foreman or fire boss," thus indicating that
McKee understood that Wallen was going to 8 mine in a supervisory capacity ;
that Wheeler 76 wrote the transfer transferring Wallen as a "section foreman"
to 8 mine; that as a result of the war, a manpower shortage affecting both
supervisory 76 and nonsupervisory employees, prevailed at the respondent's mines ;
and that Wallen was efficient both as a fire boss and a section foreman. It
is clear that but for the fact the respondent was determined to discourage
membership in the Union it would not have assigned Wallen to rank and file
work after he was transferred to 8 mine in a supervisory capacity. It is so
found. This contention is without merit.
(3) Concluding findings
From the above and the entire record the undersigned concludes and finds : that
following Shearard's discriminatory discharge, Wallen was selected as the next
union member for discharge ; that since it was difficult to find a plausible
74 Brogan testified that Wallen produced a transfer "that was on a formal paper issued
by the Company" ; that he "wouldn't swear either way" as to whether the transfer read
that Wallen was transferred to number 8 mine as a foreman or "to do miscellaneous work "
The undersigned finds below that Wallen was transferred as a foreman to a position as such.
76 On direct examination Wheeler denied that he had approached Wallen in the manner
hereinbefore described and offered to transfer him to 8 mine and that he had no "inde-
pendent recollection of transferring John Wallen from number 7 to number 8 (mines)." On
cross -examination , however , Wheeler testified :
Q (By Mr. OSTRix ) Am I correct in understanding that your testimony concerning
Wallen is that you never wrote out a transfer for him9
A Why, I certainly did. °
Q. So that you did have something to do with his transfer, did you not
A To that extent, yes, sir.
Q Before writing out that transfer, did you communicate with the superintendent
or general mine foreman of mine number 8 to inquire whether or not there was a job
open for section foreman or fire boss 9
A. No, I can't recall that, but due to the fact that he hadn't talked to me about this
transfer . . .
Q I am not asking you about what he said in his testimony.
A. I am leading up to that.
Mr. RICHARDSON . The witness has answered it
He said that he can't recall. [Italics added ]
On the above and the entire record the undersigned finds that Wheeler gave Wallen a
transfer from number 7% mine to number 8 mine as a section foreman.
76 A number of witnesses so testified , including McKee and Brogan . Mine Superintendent
Ford and Wheeler testified to the contrary. The credible evidence in the record clearly
indicates that the manpower shortage did exist at the times in 1944 and early 1945 which
affected all classes of labor.
EASTERN COAL CORPORATION 1211
pretext for the discharge of an efficient fire boss, McKee authorized the transfer
of Wallen, a fire boss at No. 7 mine under the jurisdiction of Assistant Mine
Foreman King, to 71/2 mine (which was under Looney's jurisdiction), as a section
foreman ; that Wallen, having been informed that he was on the "slate" for
discharge, told Looney, when the latter ordered him to the section, that if
he was being sent to the section merely to discharge him, he should fire him
then ; that the granting of Wallen's request for a 3-day leave of absence paved
the way to move Virgil Runyon from his fire boss job to section foreman and his
subsequent discriminatory discharge; that since Virgil was on the section and
not yet discharged, when Wallen reported to work he was transferred to 8 mine
as a section foreman, but never assigned to a foreman's job; and that his de-
motion to a rank and file job which Wallen had accepted on the promise that
he would later be assigned to a foreman's job, was occasioned by Wallen's
membership in and activity on behalf of the Union, thereby discouraging member-
ship in the Union and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed by its Section 7 of the Act.
f. Luther Loftis
(1) Events leading up to the discharge
Loftis had worked as a miner on Pond Creek for 21 years and was employed
by Fordson when the respondent took over the mine in 1936. He worked at
dumping coal for upwards of 15 years, and he was promoted to tipple foreman
by the respondent, a job he held for 2 years prior to his discharge on January 30,
1945 He joined the Union as a charter member at the time it was organized
in early July 1944 and attended meetings regularly until sometime in October
1944. As has been found hereinabove, Kerr instructed Fanto "to get rid of"
Loftis, which Fanto refused or neglected to do and was thereafter discharged.
On the day Fanto was discharged he showed his discharge slip to Loftis and
said, "This is what I got for not discharging you fellows."
The record discloses that Loftis was highly respected among the respondent's
employees. He was considered a truly Christian man. In this connection,
McKee was asked in substance if he ever talked "rough" to Loftis. McKee
replied :
Well, sir, he was a Christian man, and you have to handle everybody
different. Some people you talk up to and get work done where other
people you have to respect them, you see, on account of being religious,
and you can't handle everyone the same.
Since operation of the tipple depended upon the amount of coal mined, there
were times when the tipple would not be operated for different periods of time,
from a few minutes, to on occasion, many minutes. During the time that the
tipple is idle the employees have certain duties in cleaning up the tipple, keeping
the tracks clean, cleaning cars before loaded and "tagging" the cars for ship-
ment. When such "chores" are completed, there are times during the day when
tipple employees have moments of leisure during which they can rest, smoke
and talk.
The weigh man is required to keep an accurate record of the time that the
tipple is not actually working each day. This record so kept is forwarded to
the general mine foreman daily.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During December 1944, on an occasion when McKee and Loftis were examin-
ing certain slate, the former asked Loftis if he "didn't think the Union had all
went through" to which Loftis replied that he did not know."
On January 29, 1945, McKee instructed employee Clarence Davenport to make
a time study of the time lost at the tipple. That day the tipple report, normally
required, showed that the time lost was 110 minutes, whereas, according to
the testimony of Davenport, his report showed the time lost to be 109 minutes.78
On January 30, 1945, Looney met Loftis at the tipple and said, "I got your
discharge." When Loftis got his release he was given a Notice of Separation and
Disqualification which recited that he was separated from his employment because
of "Misconduct connected with work."
(2) Respondent's contentions as to the discharge
McKee testified that he discharged Loftis "because he hadn't done the work I
told him to"; that "he hadn't been cooperating at all with Mr. Helms [chief
electrician]" or with the 'tipple repairman ; and "he wasn't keeping the tipple
oiled."
In support of- these contentions, McKee testified that within 2 weeks after he
became general foreman he had a complaint against Loftis from Helms, who
reported "that the tipple wasn't being properly oiled" ; that he made no investi-
gation of the complaint, but talked to Loftis, who merely said "well"; that some
2 or 3 weeks later W. B. Stanley, tipple repairman, reported that the tipple
"was still not oiled," after which McKee again took the oiling matter up with
Loftis, and in addition told Loftis that foreign coal was not being cleaned out
of coal cars before loading ; called his attention to a bridge to be built over the
tipple, and the necessity of cleaning certain "stations" in the rear of the houses
in a nearby colored area ; and that in response to many complaints made by
McKee on this occasion, Loftis replied "Huh," and that he was the "boss" out
there (at the tipple) ; that Helms again complained concerning a bearing burn-
ing up from lack of oil ; and that 3 or 4 days before Loftis' discharge, on January
30, 1945, he informed Loftis that complaints were still coming in; that he had not
built the bridge as directed although McKee "knew positive" that his "men were
sitting around enough time to do the work" ; that he had Clarence Davenport, an
expert, make a time study of the tipple employees on January 29, 1945;'8 that
he went to the tipple on January 30, 1945, looking for Loftis and failed to find
him but did find that certain bearings had not been oiled and were running in
the dust, that he then wrote out a discharge for Loftis and caused Looney ,to
deliver it to Loftis. Helms testified, in substance, that in June 1944, an eccentric
bearing ran dry from. lack of grease; that in latter part of July 1944, a bushing
got hot, "burned up, throwed (sic) the babbit out of it because of lack of grease" ;
and that this matter was called to Loftis' attention ; that later he found the
rollers on the egg table loading boom to be dry ; that an acetylene hose had been
77 This finding with reference to the Union 's discussion is based on Loftis' credited testi-
mony. Insofar as the record discloses , McKee was not questioned concerning this
statement.
78 This report is discussed further under "Respondent 's contentions as to the discharge"
below.
79 Davenport was called as a witness before McKee . He testified that he made but one
time check at Loftis' tipple and that was on the day before Loftis was discharged His
report coincided as to time lost at the tipple ( while men awaited arrival of coal from mines)
within 1 minute of that shown in the daily report of the Tipple Weighman . McKee testified
that Davenport's time study played no part in connection with Loftis' discharge.
EASTERN COAL CORPORATION '1213
cut with a knife while Fanto was general mine foreman, and when called to
Fanto's 80 attention, the latter said "skip it."
Stanley, the tipple repairman, testified, in substance, that it was his job to
keep the tipple in repair ; that he repaired the eccentric referred to above ; that
his difficulty in getting the tipple greased continued after McKee became mine
foreman, and he so reported to McKee ; that he was with McKee on January 30,
1945, when McKee examined the bearing on the aerial train that had run dry
for want of oil; that when the tipple was not in operation awaiting coal between
trips, under Loftis, the men "cleaned up some, along, and a lot of the time
they got together and smoked, rested ;" that Loftis' successor has men to take
care of "all these small things" that he (Stanley) had to stay and do when
Loftis was in charge ; and it is seldom that he has to go to the tipple now, "Its
got to be a big break down." 81
Loftis, however, testified that during the more than 2 years he was tipple
foreman, while he had had some breakdowns, there were none which manage-
ment asked him to explain ; that he was at no time reprimanded or "bawled"
out for his work. The record discloses that Loftis was highly respected by his
men and associates. Even McKee acknowledged that he was not a man you
would talk "rough" to but was "a Christian man" that "you have to respect . . .
on account of being religious." The undersigned does not credit the testimony of
either McKee or Helms wherein either testified that they complained to, or
criticized, Loftis for any alleged neglect of duty. Loftis was not under Helms'
jurisdiction in any sense, each were foremen and it is very unlikely that in
case of a breakdown or other circumstance that interfered with the operation
of the tipple, that Helms 82 would presume to reprimand Loftis, a co-equal. The
record discloses that Loftis was not, at the time of his discharge, told the
reasons for it, other than what appeared on the discharge handed to him by
Looney. On the above and the entire record, the undersigned finds that Loftis
was at no time criticized or reprimanded by either McKee or Helms. The con-
tentions are without merit.
(3) Conclusions as to the discharge
The above and the entire record disclose and the undersigned finds that
Loftis became a charter member of the Union ; that the respondent was de-
termined to discourage union organization of its supervisory employees ; that
Kerr instructed Fanto, then a general mine foreman, to discharge Loftis, which
Fanto did not do and was himself subsequently discharged; that the reasons
assigned for the discharge are without merit; and that the respondent dis-
charged Luther Loftis on January 30, 1945, because of his membership in
and activity on behalf of the Union, thereby discouraging membership in the
81 N. D Howard, of ormer chief engineer for the respondent, testified that under Loftis
and the number of men he had, a better job in keeping the tipple clean could have been
done ; that a better job was being done at other tipples with "a fewer crew." The record
does not disclose that the number of men in a tipple crew is determined by its foreman. If
Loftis had too many employees it would appear that a chief engineer would be in a
position to either make or at least recommend a reduction.
82 The record discloses that a report to the effect that all foremen who joined the Union
would eventually be discharged , was current throughout the mines As found above,
Riddle had been instructed to get rid of Helms as one of the "clique," a report that reached
Helms, who tendered his resignation to Kerr who did not accept it. Since that time,
however, five of the foremen have been discharged and one was demoted, a fact that was
not lost upon the foremen still retained,
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
Concluding findings as to interference, restraint, and coercion
The undersigned further finds that by the conduct of Riddle in advising May
against the advisability of joining the Union; by Wheeler's conduct in questioning
May concerning the latter's attitude toward a pending strike vote ; by McKee's
statement to Jake Runyon that he was going to promote the latter to a General
Foreman, and thus get him "out of the God-damn Union" ; by McKee's further
statement to Jake Runyon, that the former could not promote May to assistant
general foreman because "he's president of that God-damn Union"; by McKee's
statement to Virgil Runyon in September 1944, before McKee became general
mine foreman, but at a time he knew he was to be so appointed, that he (McKee)
was to be general mine foreman and was going to assign Virgil to 71/2 mine
because he wanted fellows that did not belong to the Union; by McKee's state-
ment during December 1944, in the presence of Virgil Runyon, Shearard, Farmer,
King and others, that the fire bosses and section foremen "as foremen couldn't
belong to the Foreman's Union and be a fire boss or section foreman" in
his mine ; by McKee's conduct in December 1944, in asking Loftis if the latter
"didn't think the Union was all through" ; and by the totality thereof, the
respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed 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 tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to the
hire and tenure of employment of Jacob Runyon, Daniel R. May, Luther Loftis,
James A. Shearard, Virgil Runyon, and John Wallen, thereby discouraging
membership in the Union. In order to effectuate the policies of the Act it is
recommended that the respondent offer to each of the foregoing named em-
ployees immediate and full reinstatement to their former or substantially
equivalent positions 83 without prejudice to their seniority or other rights and
privileges, and that it make them whole for any loss of pay they may have suffered
by reason of the discrimination practiced against them, by payment to each of
them of a sum of money equivalent to that which he normally would have earned
83 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially equivalent.
position " See Matter of The Chase National Bank of, the City of New York, San Juan,
Puerto Rico , Branch, 65 N. L. R. B.,827.
EASTERN COAL CORPORATION 1215,
as wages, from the date of their respective discharges or demotion to the date
of offer of reinstatement, less their net earnings u during said period.
In view of the unfair labor practices found to have been committed by the
respondent constituting violations of Section 8 (1) and (3) of the Act, the
undersigned is of the opinion and finds that there is danger of the commission
of other and additional unfair labor practices since the violations thus far
engaged in by the respondent have led to discrimination to such degree as would
cause the average employee reasonably to conclude that any union or concerted
activity on his part would lead to discrimination in his tenure and condition
of employment. This disclosed attitude of the respondent towards organization
by their supervisory employees and the continuous threat which it implies,
requires a cease and desist order as broad as the threat.
It will therefore be recommended that the respondent cease and desist from
in any manner interfering with, restraining, and coercing its employees in
their rights to self-organization for the purpose of collective bargaining as
guaranteed in Section 7 of the Act a5
On the basis of the foregoing findings of fact and on the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Clerical , Technical and Supervisory Employees, Division of District
50, United Mine Workers of America , is a labor organization within the meaning
of Section 2 (5) of the Act
2. By discriminating in regard to the hire and tenure of employment of Jacob
Runyon, Daniel R. May, Luther Loftis, James A. Shearard , Virgil Runyon, and
John Wallen, respondent has engaged 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 , respondent has engaged in
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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Eastern Coal Corporation, of Bluefield,
West Virginia, its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Clerical, Technical and Supervisory
Employees, Division of District 50, United Mine Workers of America, or any
84 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, 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.
85 See May Department Stores Company v. N. L R. B, 326 U. S 376; Matter of Wash-
ington, National Insurance Co , 64 N L R B. 929, Matter of C. D. Beck d Company, 63
N. L. It B. 1426 ; Matter of Caroline Mills, I ne., 64 N L. R B 200.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization of its employees by discharging or demoting and refus-
ing to reinstate any of their employees or in any other manner discriminating in
regard to the hire and tenure of employment or any terms or conditions of
employment ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Clerical, Technical and Supervisory
Employees, Division of District 50, United Mine Workers of America, or any
other labor organization, to bargain collectively though 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 i Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Jacob Runyon, Daniel R. May, Luther Lofts, James A. Shearard,
Virgil Runyon, and John Wallen, immediate and full reinstatement to their for-
mer or substantially equivalent positions without prejudice to their seniority
or other rights and privileges previously enjoyed ;
(b) Make whole the said Jacob Runyon, Daniel R. May, Luther Loftis, James
A. Shearard, Virgil Runyon and John Wallen, for any loss of pay they may have
suffered by reason of the respondent's discrimination against them in the man-
ner provided herein in the section entitled "The remedy" ;
(c) Post immediately at its place of business and at mines No. 7, 71/2 and 8,
located at McVeigh, Kentucky, copies of the notice attached hereto marked
"Appendix A." Copies of such notice, to be furnished by the Regional Director
for the Ninth Region, shall, after being duly signed by respondent's representa-
tive, be posted by the respondent immediately upon receipt thereof and main-
tained by them for sixty (60) consecutive days thereafter, in conspicuous places
including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the respondent to insure that said notices are
not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Ninth Region in writing, within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
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 Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Washing-
ton 25, 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;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
0
EASTERN COAL CORPORATION 1217
or counsel for the Board filing the same shall serve a copy thereof upon each of
the other parties and shall file a copy with the Regional Director . Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203:39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10 ) days from the
date of service of the order transferring the case to the Board.
PETER F WARD,
Trial Examiner.
Dated January 2, 1947.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act , we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist UNITED CLERICAL , TECHNICAL AND SUPERVISORY EM-
PLOYEES, DIVISION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA, or
any other labor organization, 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.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjp ed,
and make them whole for any loss of pay suffered as a result of 'the
discrimination.
Jacob Runyon James A. Shearard
Daniel R. May Virgil Runyon
Luther Loftis John Wallen
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
EASTERN COAL CORPORATION,
Employer.
Dated ------------------------------ By -------------------------------
(Representative ) ( Title)
NoTE.-Any of the above -named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.