Hackathorn & Myers

National Labor Relations Board - Board Decisions

Jul 7, 1950

90 N.L.R.B. 785 (N.L.R.B. 1950)

In the Matter of HACKATHORN .& MYERS, EMPLOYER and GAY W.
SMYTH, PETITIONER and LOCAL UNION No. 8458, INTERNATIONAL
UNION, UNITED MINE WORKERS OF AMERICA, UNION
Case No. 8-RD-36.-Decided July 7, 1950
DECISION AND ORDER
Upon a petition for decertification duly filed, a hearing was held
before Carroll L. Martin, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
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 the undersigned Board members [Members Houston,
Murdock, and Styles].
Upon the entire record in the case, the Board finds :
1. The business of the Employer :
The Employer, Glenn Hackathorn and L. J. Myers, a partnership,
operates the Balser Mine, located near Bergholz, Ohio.
During 1949, the Employer mined from the Balser Mine 38,974
tons of coal, valued at $175,693, all of which was sold to purchasers
located within Ohio. Of the amount so produced and sold, coal
valued at approximately $45,153 was sold to nonindustrial users; coal
valued at approximately $120,447 was sold to dealers for resale to a
public utility and four industrial users engaged in interstate
commerce.'
Also during 1949, the. Employer purchased supplies, consisting of
tools, machinery, fuel oil,. and greases, valued at approximately
-$14,882, of which all was procured from suppliers located within
Ohio.
' The Ohio Edison Company, a: public utility with gross operating revenue during 1949
of $2,487 , 000 derived from outside Ohio, received coal from the Employer ' s Balser Mine
valued at approximately $27,225 ; the McLain Fire Brick Company , with plants in
Ohio and Pennsylvania , received coal from the Employer ' s Balser Mine valued at approx-
imately $73 , 658 ; the American Vitrified Products Company , with out-of-Ohio sales for
1949 exceeding $90,000 , received coal from the Employer' s Balser Mine valued at approxi-
mately $18 ,655; and the Homer Laughlin China Co. of Newell , West Virginia, with out-
of-west Virginia sales for 1949 exceeding $ 10,000 , 000, received coal from the Employer's
Balser Mine valued at approximately $909.
90 NLRB No. 128.
903847-51-vol. 90 51 785
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, contrary to the Employer's contention, that the Employer
is engaged in commerce within the meaning of the National Labor
Relations Act, and that it. will effectuate the policies of the Act to
assert jurisdiction in this case.2
,2. The Petitioner asserts that. the Union no longer 'represents . em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
On December 23, 1948, the Employer recognized the Union as the
bargaining agent of. its production and maintenance employees, the
employees in the unit herein. involved. On that date, the Employer
and the Union's international, .International Union, United Mine,
Workers of America, executed a bargaining contract covering such
employees; that contract terminated on June 30, 1949. No new con-
tract was thereafter executed, and there is no evidence in the record
of dealings between the Employer and the Union after June 30, 1949.
Accordingly, there is no basis in this record for finding that the Union
is "currently recognized" by the Employer.
As the Union has never been certified by the Board as the bargain-
ing representative of employees of the Employer, and as it is not
"currently recognized," neither of the requisites prescribed by Section
9 (c) (1)' (A) (ii) of the Act has been satisfied in this case.3 Accord-
ingly, the Board lacks the power to entertain the decertification peti-
tion, and we shall therefore dismiss it.,'
ORDER
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
MEMBER MURDOCK, dissenting:
For the reasons stated in lny dissenting opinion in Tunnel Mill Min-
ing Company, 90 NLRB 787, decided this day, I would not assert
jurisdiction in this case, and for that reason would dismiss the petition.
2 Tunnel Mill Mining Company, 90 NLRB 787, issued this day.
'Section 9 (c) (1) (A ) ( ii) of the Act empowers the Board to investigate a petition
for decertification of a "labor organization which has been certified or is being currently
recognized " by the employer.
4 Davisville Hosicry Mill, Inc., 88 NLRB 738.