Harlan Fuel Co.

National Labor Relations Board - Board Decisions

Jul 5, 1938

8 N.L.R.B. 25 (N.L.R.B. 1938)

In the Matter of HARLAN FUEL COMPANY and UNITED MINE WORKERS
OF AMERICA , DISTRICT 19
Case No. C-489.-Decided July 5, 1938
Coal Mining Industry-Interference , Restraint , and Coercion : antiunion state-
ments ; circulation of petitions to be used as basis of request for gubernatorial
intervention in organizational activities of "outside " union ; interference with
organizational activities and meetings ; threats of bodily harm to union organ-
izers ; expressed opposition to labor organization ; ejection of organizers from
company town : right of employees to receive aid, advice , and information from
others concerning rights guaranteed by the Act ; employer ordered to cease
interfering with right of representatives of labor organizations to enter town-
Conipany-Dominated Union: domination of and interference with formation and
administration ; support ; circulation of petitions for formation of, during work-
ing hours , by foremen , in violation of mine rule , with tacit assent of supervisory
employees and officials ; coercion to join ; discrimination in favor of , in endorse-
ment and recognition as representative of employees ; discrimination in favor of
members of ; application of, for certification as representative , dismissed; dis-
established , as agency for collective bargaining-Contract : employer ordered
to cease giving effect to any contract it has or may have entered into with
organization found to be company-dominated-Discrimination: as to tenure of
employment : discharges , for union membership and activity ; closing sections of
mine and discontinuing shifts, as adaptation of lock-out technique ; transfer to
work entailing peril to life, held to constitute discharge ; transfer of employee
from only work within his physical ability, held to constitute discharge ; as to
terms and conditions of employment : for union membership and activity ;
transfers from hourly paid work to coal loading under adverse conditions ;
transfer of coal loaders to poor working places ; "doubling up" employees ; fail-
ure to cut and shoot coal , preparatory to loading ; furnishing insufficient cars
for loading ; charges of , dismissed as to 11 persons-Reinstatement Ordered:
transferred employees and discharged employees , dismissing newly hired em-
ployees, if necessary-Back Pay: awarded ; discharged employees ; employees
discriminated against as to conditions of employment as coal loaders , for losses
of production on tonnage basis.
Mr. Leonard Shore and Mr. Charles M. Ryan, for the Board.
Mr. Cleon K. Calvert and Mr. William Sampson, of Pineville, Ky.,
for the respondent.
Mr. Gus B. Bruner, of Harlan, Ky., for the Association.
Mr. James S. Golden, of Pineville, Ky., for the Union.
Mr. David Y. Campbell, of counsel to the Board.
8 N. L. R. B., No, 3,
25
26 NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and supplemental charges duly filed by United Mine
Workers of America, District 19, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by Philip
G. Phillips, Regional Director for the Ninth Region (Cincinnati,
Ohio), issued a complaint dated October 1, 1937, against Harlan
Fuel Company, Yancey, Kentucky, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were
duly served upon the respondent, upon the Union, and upon Yancey
Workmen Association, Inc., herein called the Association. On Oc-
tober 4, 1937, the respondent filed an answer. The Association filed
its answer at the hearing. Likewise at the hearing, the complaint,
charge, and answer of the respondent were each respectively
amended.
The complaint, as amended, alleged in substance, so far as here
material, (a) that on various dates during February, April, May,
June, and September, 1937, the respondent discharged certain named
employees,' 36 in number, for the reason that they joined and as-
sisted the Union, thereby discriminating in regard to the tenure of
employment of these persons and discouraging membership in the
Union; (b) that the respondent assigned 24 others of its employees 2
to dangerous working places, laid them off for periods of time when
work was available, gave 2 or more of said employees working rooms
which would accommodate only 1 person, and, in sundry other ways,
prevented said employees from earning as much as they would have
earned under normal working conditions, for the reason that they,
'The names of these employees are as follows : Oley Bates , E J. Bowling , Walter
Bowling, Dewey Brock , J. L Cooper , Lee Cornett, Sam Dice , Ira Dodd , Clarence Douglas,
Cecil Dozier , Leonard Dozier , Albert Goins . C. C. Gibson , J. T. Latham , Hayes Lewis,
John Henry Lewis, Charley Lasicy , Lumus Lundy , E M Mason, Charles Osborne, Chester
Perkins , Elmer Perkins, 0 M Perkins , Wells Richardson , Earl Shakelforth, Alonzo
Shepherd , Homer Slover , Fate Smith, Clifford Smithers , Blanc Stephens , Johnston
Sweeney, Walter Thomas, Ray Walters, Albert Young , Arthur Young , and Nap Young.
2 The names of these employees are as follows, Edgar Baird , Cecil Boyd , Leonard
Boswell , Roy Brannin , Jack Calvin , Evan Davenport , David Davis, Fred Day, Ernest
Plucker , Preston Garner , Henry Gaston , Millard Harness , Charlie Hicks, Grover Hicks,
Ned James , Henry Lasley , Tom McIntyre , 0 L. Nelson , Nead Patterson , Murphy Pierce,
Leslie Smithers , Ben Stevens , George Washington , and James Wilburn.
DECISIONS AND ORDERS 27
too, joined and assisted the Union, thereby discriminating in regard
to the hire and tenure of employment and condition of employment
of said persons and discouraging membership in the Union; (c) that
the respondent formed, and dominated and interfered with the ad-
ministration of a labor organization of the employees known as
Yancey Employees Association,3 and contributed support to it; (d)
that by the afore-mentioned acts and each of them, and in many other
devious ways, the respondent has interfered with, restrained, and
coerced its employees, and now is so interfering with, restraining,
and coercing them, in the exercise of the rights guaranteed in Section
7 of the Act.
The respondent, by its answer, as amended, objected to the juris-
diction of the Board over the subject matter on the ground that the
respondent's business was not in, nor did it affect, interstate com-
merce. It denied, in general, the material averments of the com-
plaint, as amended. It alleged, among other things, that it had
entered into a contract with the Association respecting hours, wages,
and working conditions of its employees, and providing for a check-
off. The Association in its answer denied the averments of the com-
plaint, as amended, in so far as they related to it, and petitioned the
Board for certification of itself as the duly authorized representative
of the respondent's employees for purposes of collective bargaining.
Pursuant to notice, a hearing was held on October 11, 12, 13, 14,
15; and 16, 1937, at Harlan, Kentucky, before James G. Ewell, the
Trial Examiner duly designated by the Board. The Board, the re-
spondent, the Union, and the Association were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to produce evidence bear-
ing upon the issues was afforded all parties. During the course of
the hearing, counsel for the Board moved to dismiss the allegations
of the complaint, as amended, with respect to J. L. Cooper and 24
other persons therein named 4, for the reason that they had failed to
appear at the hearing although duly notified thereof. This motion
was allowed by the Trial Examiner. The Trial Examiner made
various rulings on other motions of the parties, and on objections to
the admission of evidence. The Board has reviewed said above-
mentioned rulings of the Trial Examiner and finds that no prejudicial
errors were committed. Said rulings are hereby affirmed.
On March 19, 1938, the Trial Examiner made his Intermediate
Report, which was filed with the Regional Director and duly served
5 The correct name of this organization is Yancey Workmen Association. Inc
* The persons so named were E J. Bowling, Walter Bowling, Cecil Boyd, Dewey Brock,
Evan Davenport, Sam Dice, Ira Dodd, Clarence Douglas, Cecil Dozier, Leonard Dozier,
Preston Garner, Henry Gaston, Millard Harness, Grover Hicks, Charley Lasley, Hayes
Lewis, John Henry Lewis, Wells Richardson, Monro Shepherd, Pate Smith, Ben Stevens
Walter Thomas, George Washington, and Nap Young
28 NATIONAL LABOR 11ELATIO1'stS EOARf
upon all the parties, finding that the respondent had engaged in and
was engaging in unfair labor practices, within the meaning of Sec-
tion 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act and
recommending that the respondent cease and desist from its unfair
labor practices; reinstate, with back pay, certain of its employees e
found to have been discriminatorily laid off or discharged by the
respondent; make whole certain other of the employees 6 found to
have been discriminated against in regard to conditions of employ-
ment, for any loss in pay suffered by reason of such discrimination;
withdraw all recognition from and disestablish the Association as an
agency for collective bargaining with the respondent; and take cer-
tain other appropriate action to remedy the situation brought about
by the respondent's unfair labor practices. The Trial Examiner also
recommended that the complaint, as amended, be dismissed as to cer-
tain employees' whom the Examiner found not to have been dis-
criminated against.
On March 31 the respondent filed its exceptions to the Intermediate
Report. On April 18 it filed amended exceptions. The Association
filed no exceptions to the Intermediate Report, but has submitted a
brief in support of its position. The parties, although accorded an
opportunity for oral argument before the Board, made no request
therefor. We have carefully considered the respondent's exceptions
and amended exceptions to the Intermediate Report, and in so far
as they are inconsistent with the findings, conclusions, and order
below, find them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Kentucky corporation engaged in the business
of mining and selling bituminous coal. Its principal place of busi-
ness is located at Yancey, Harlan County, Kentucky. The respond-
ent employs 500 or more persons.
Yancey is what is commonly termed a "company town." All its
property is held, and to that extent its civic life controlled, by the
'The names of these employees are : Lee Cornett , Fred Day, Albert Goins, Charles
Gibson, J. Latham , E. Mason, Nead Patterson , Chester Perkins , O. Perkins , Homer Slover,
Clifford Smithers , Leslie Smithers , Blane Stephens , Ray Walters , Albert Young, Arthur
Young.
6 The names of these employees are : Edgar Baird, Roy Brannin , Ernest Plucker, Ned
James, Tom McIntyre , Elmer Perkins , Murphy Pierce , Johnston Sweeney , James Wilburn
7 The names of these employees are : Oley Bates, Leonard Boswell , Jack Calvin, David
Davis, Charles Hicks , Henry Lasley, Lumus Lundy, O. L. Nelson, Charles Osborne, Earl
Shakelforth.
DECISIONS AND ORDERS 29
respondent. Its inhabitants are employed by the respondent in the,
adjacent mining property. About 5,000 acres of uninclosed land,
comprising in part the mine and town site, together with all im-
provements appurtenant thereto, are under lease to the respondent, as
lessee, for a term of 99 years. The improvements include the mine
property, with its mines, tipple, other buildings, constructions, and
equipment; and the town proper. Yancey has 250 dwelling houses;
a commissary building containing offices, a general retail store, and
a United States Post Office; other buildings and structures; paths,
roads, streets, and ways. All of this is company property. The mine
and town, together form one connected plant, plan, and enterprise.
Surrounding both is a belt of apparently unimproved land, likewise
under lease to the respondent, traversed at one place by a paved
road which the respondent constructed, leading to Gulston, Kentucky.
The road constitutes the regular means of ingress and egress to and
from Yancey.
The mine has a daily capacity of 3,000 tons, and an annual output
of about 500,000 tons. The dollar volume of the respondent's sales is
not shown, but the market value of the coal at the time of the hearing
was $1.80 per ton. Ninety per cent of the coal mined is shipped out-
side the State of Kentucky. During the month of September 1937,
a representative month, shipments were made from the mine to points
in the States of North Carolina, South Carolina, Illinois, Georgia,
Tennessee, Alabama, Indiana, Michigan, Ohio, and Iowa.
The respondent sells its coal to sales agencies, located in Detroit,
Michigan; Atlanta, Georgia; and Chicago, Illinois. Some coal is also
regularly sold to purchasers by Elzo Guthrie, the respondent's presi-
dent. All coal is sold f. o. b. the tipple, according to railroad weights,
and settlements are made monthly on the basis of market price less
8 per cent. Orders are filled by loading coal from the respondent's
mine tracks into railroad cars of the Louisville and Nashville Railroad
for transport to the consignees.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District 19, is a labor organi-
zation affiliated with the Committee for Industrial Organization. It
admits to membership all employees of the respondent, except super-
visory, office, and clerical employeees.
Yancey Workmen Association, Inc., is a labor organization, admit-
ting to membership all employees of the respondent, except super-
visory and clerical employees. .
30 NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union first began organization of the respondent's employees
about January 1937. Its principal membership campaign was
launched sometime in April.
In January or February the respondent had its general foreman,
Sharp, and other foremen circulate petitions among the employees,
for their signatures, stating that the employees were satisfied with
working conditions at the mine. It was proposed by the respondent
to use the petitions when signed in making a request of the Governor
of the State to prohibit "outside" organizers from entering Harlan
County. Clyde Guthrie, vice president of the respondent, testified
that "there was a request on that [the Governor] . . . protect this
whole coal field from outside agitation by the United Mine Workers."
However, the evidence fails to show the existence of any cause or
ground for such intervention, and the record as a whole yields a
strong inference that the sole purpose of the request was to enlist the
aid of public authority to defeat organizational activity.8
On April 29 a number of the Union's organizers were in Yancey
talking from a sound truck about the Union to gatherings, of the re-
spondent's employees. While one of them was speaking the whistle
in the respondent's power plant commenced to blow and continued
blowing for about 20 to 30 minutes, effectively rendering the speak-
er's words inaudible. At the hearing the respondent 's officers ad-
mitted having heard the whistle but disclaimed knowledge of the
reason therefor, and offered no explanation for their failure to inves-
tigate the occurrence.
On May 22 several of the organizers, while in Yancey, went to the
commissary and purchased some "coca-colas." While they were at
the soda fountain, Clyde Guthrie came in, ordered them out of the
commissary and off the respondent's property, saying, "Get your
coca-cola drunk, and get the hell out of here."
On July 10 some of the organizers were in the post office at Yancey
posting letters and making inquiry about general-delivery mail.
While they were thus occupied, an unidentified person signaled their
presence to an individual outside the building. Thereupon, Elzo
Guthrie, president of the respondent, and several other persons, each
with his hand on his pistol, entered the building and surrounded
Hurd, a colored organizer. Guthrie said to Hurd, "What the hell are
you doing in here?" ,Upon Hurd's reply that he had business at the
I It is of interest to note that Kentucky Acts of 1934, C. 51, Sec. 21, makes the follow-
ing provision , subject to penalty of fine and imprisonment for any violation thereof, "No
officer or member of the Active Militia shall at any time , or under any circumstances
whatsoever , participate in any labor or industrial controversy on either side thereof .. .
DECISIONS AND ORDERS 31
post office, Guthrie said, "Get the hell out of here, you black son of
a bitch there, and get your mail . I ought to shoot your . . . damn
black brains out." Hurd left the building, followed by Guthrie.
Guthrie observed Green, another organizer, standing near, and said,
"What the hell are you doing here?" With his hand still on his gun,
Guthrie then ordered all the organizers to leave the property.
In the light of the foregoing occurrences and the record, we are
satisfied that coincident with the coming of the Union organizers to
Yancey for the purpose of enlisting members among the mine em-
ployees, the respondent through its officers and agents determined to
combat such activity. The respondent's circulation among its em-
ployees of the petitions, its blowing of the whistle, its exhibition of
hostility and violence to,. and the organizers, and the marked con-
trast 9 between such treatment and that accorded the Association's
organizers, hereinafter set forth, all were intended by the respondent,
and had the necessary effect, to intimidate, restrain, and coerce its
employees in their right to join a labor organization of their own
choosing, and in other rights guaranteed by the Act.
Of wider significance, perhaps, the above-mentioned events serve to
bring to the fore an issue which in past years has proved a trouble-
some cause of serious industrial disturbances. The record clearly
establishes that the respondent was resolved to keep the organizers
out of Yancey.1° It sought gubernatorial intervention. It threat-
ened the lives of the organizers with show of great force. The
respondent urges in justification of its exclusion of the Union organ-
izers, that its property interests in the land where Yancey is situated,
and in all improvements appurtenant thereto, entitled it to prohibit
the organizers from entering Yancey and forcefully to remove them
as trespassers. The respondent also contends that it extended to the
organizers a license to, traverse the town, but the organizers abused
their license and consequently properly were prohibited from enter-
ing it and were ejected as trespassers.
The evidence shows that substantially all of the dwellings located
in Yancey are occupied by employees of the respondent. These
houses are leased by the respondent, as landlord, to the employees, as
tenants. The premises so demised are, as heretofore mentioned, com-
pletely surrounded by other lands in which the respondent has its
property interest, and access to any of the houses necessarily can be
° Cf. Matter of Wallace Manufacturing Company, Inc. and Local No. 2237, United
Textile Workers of America, 2 N. L R B 1081 ; National Labor Relations Board v.
Wallace Manufacturing Company , Inc, Fourth Cir. 95 F ( 2d) 818 ; Miter of Ballston-
Stillicater Knitting Co, Inc and Textile Workers Organizing Committee , 6 N. I; R B. 470
10 A description of parallel action by the Harlan County Coal Operators ' Association, of
which the respondent was a member , may be found in the decision of the Board , Matter
of Clover Fork Coal Company and District 19, United Mine Workers of America, 4'
N. L. R B 202; Clover Fork Coal Company v National Labor Relations Board, 6th Cir,
decided, June 8 , 1938, 97 F ( 2d) 331.
32 NATIONAL LABOR RELATIONS BOARD
had only over such other lands. The respondent maintains for pur-
poses of ingress and egress to the homes of its tenants, various private
and customary ways, roads, streets, and paths traversing Yancey and
the adjacent land.
It is established doctrine in such cases that rights of ingress and
egress over the private and customary ways, roads, streets, and paths,
essential to the enjoyment of the demised premises, pass to the tenant
as annexed to his leasehold; and the use of such rights free from
interference by the landlord is not limited to the tenant but extends
to all third persons visiting the tenant under express or implied
invitation for any lawful purpose. Persons transacting matters of
interest with tenants in company towns have a right to use the
private ways in doing so.
In entering and passing through Yancey on their visits to the
employees there residing, the Union organizers were engaged in a
transaction of mutual interest, the exercise by the employees of their
right under the Act to form and join a labor organization for the
purpose of collective bargaining and other mutual aid and protection.
The use made by the organizers of the customary passways, roads,
and streets to reach the employees was accorded by law and could not
be defeated through the simple assertion by the respondent of a land-
lord's interest.- By forcibly preventing the organizers from coming
to or remaining in Yancey, the respondent not only violated this right
but engaged in an unfair labor practice. Interference by an em-
ployer with the lawful conduct of organizational activities among
employees by labor organizers is in derogation of rights secured
employees under Section 7 of the Act; and constituted an unfair
labor practice within the meaning of Section 8 (1). The rights
guaranteed to employees by the Act include full freedom to receive
aid, advice, and information from others; concerning those rights
and their enjoyment.12
The respondent also contends, as above stated, that it ejected the
organizers from Yancey because they abused a license it had granted
them to visit the employees at their homes. The normal right of use
in the organizers, however, did not arise from nor depend upon such
license. The claimed abuse consisted in alleged solicitation of em-
ployees in the mine proper, and in insulting a clerk in the commissary.
The evidence does not support this claim.
n Whether , as has been argued with considerable weight, the organizers also had a right
of ingress and egress, under the Act, need not be determined . Also compare , Matter of
Waterman Steamship Corporation and National Maritime Union of America, Engines
Division, Mobile Branch, Mobile, Alabama, 7 N. L. R . B. 237; Matter of Alabama Mills,
Inc. and Local No. 2051, United Textile Workers of America, 2 N. L. R. B. 20.
v Cong Rec., May 16, 1935, v. 79, No. 102, pp . 7948-7960 , 7967-7970 ; H. it. Report No.
1147 , 74th Cong ., 1st Sees., p. 16: Cf. Matter of Ralph A. Freundlich, Inc., etc. and Max
Marcus at al., 2 N. L. R . B. 802; Matter of Protective Motor Service Company, a Corpora-
tion and Twenty-Five Employees , 1 N. L. R . B. 639.
DECISIONS AND ORDERS 33
We find that the respondent by its foregoing acts has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
B. Domination of and interference with the formation and adminis-
tration of the Association
About April 1, 1937,_ there were circulated at the respondent's
mine among its employees certain petitions setting forth the follow-
ing:
We, the members of the Yancey Workmen Association, hereby
choose unanimously for the purpose of collective bargaining in
respect to rates of pay, wages, hours of employment or other
conditions of employment, the following :
O. M. Lowery, President
Jess Daniels, Chairman
Ham Hatmaker, Representative
Claud Braden, Representative
Judson Bearden, Representative
Albert Adams, Representative
F. G. Posey, Representative
Bill Qualls, Representative
J. C. Hannah, Representative
At the time that the circulation was begun there was in existence
no organization known as Yancey Workmen Association. The cir-
culation, itself, was the first step in the formation of the Association.
Various persons who assisted in the circulation, called to the hearing
as witnesses for the Association, did not know who had prepared the
petitions or what was the source of their origin.
The petitions were circulated during working hours by several
employees later prominent in the affairs of the Association, and by
foremen. Signatures to the petitions were expressly solicited. A
rule of the respondent requires that its workers remain at their places
when on duty and prohibits them from going elsewhere in the mine.
Although this rule was violated in the circulation of the petitions, no
action was taken by the respondent to prevent tlh circulation nor was
anyone ever disciplined therefor. At the hearing the respondent's
officers and foremen disclaimed having witnessed any circulation.
The record permits of no doubt, however, that the respondent's super-
visory force well knew of the circulation of the petitions at the time
it occurred. In one case, Kitts, an employee, later president of the
Association, solicited another employee in. the presence of the gen-
eral foreman, Sharp. Moreover, as above stated, the foremen them-
selves participated in the activity. Collier, one of the foremen, was
34 NATIONAL LABOR RELATIONS BOARD
particularly aggressive . He not only solicited signatures to the peti-
tion but told the employees that the petition was for "the company-
protected union," and if 51 per cent of the employees signed, the
Union could be kept out , that the respondent was proposing to put
loading machines in the mines and only those who signed the petition
would be offered an opportunity to work, that the others would have
no jobs. At the hearing, Collier denied the occurrence. His testi-
mony, however , is neither clear nor convincing , and we can accord it
no credence.
According to claim made at the hearing by the Association, some
400 of the respondent 's employees signed the petitions . At least one
of the signatures is shown to have been a forgery . Some of the
employees had no opportunity to read the petitions at the time they
were solicited , and signed upon being told it was for "the company-
protected union. " Davenport , an employee called as a witness by the
respondent , described his becoming a member of the Association
thereafter formed, and the part played therein by his foreman,
Hamilton, and the petitions , as follows :
Q. How did you happen to get the [Association membership]
card through the mail?
A. I don't know . I signed a paper in number two.13
Q. Who brought you the paper?
A. Mr. J . B. Hamilton.
Q. Is he still boss up there?
A. Yes, sir.
Q. Gave you that paper to sign, didn't he?
A. Yes, sir.
Q. After he got that paper,signed, you became a member of
Yancey Workmen's Association?
A. Yes, sir.
Q. Well, do you know what the Yancey Workmen's Associa-
tion is?
A. No.
Q. Don't know anything about that?
A. No.
Q. And you never signed anything to become a member of
that Association?
A. Not unless that paper was it.
On May 22 the Association held an organizational mass meeting
for the employees at the gymnasium in Yancey . Notices of the
meeting appeared on a bulletin board regularly used by. the re-
spondent for posting work notices and official announcements.
"This refers to the respondent ' s Mine No 2
DECISIONS AND ORDERS 35.
In early June the Association filed articles of incorporation, and
on June 7 was certified by the Secretary of State as a corporation.
A photostatic copy of the certificate was posted on the bulletin board.
The articles of the Association provided for an election of officers and
a board of representatives to be held on June 12, 1937. No election
was held on that date or at any time subsequent. At the hearing
the Association claimed that its officers and representatives had
previously been elected by popular vote at the May 22 mass meeting.
The testimony, however, of various persons who attended the meet-
ing leaves serious doubt as to the occurrence at that time of such
election.
On June 15 the Association asked the respondent to recognize it
as the exclusive representative of all the employees for purposes of
collective bargaining. In support of its claim that it represented a
majority of the employees, the Association submitted the signed
petitions which had been circulated about April 1 by the Association
organizers and foremen. On June 20 the respondent accorded the
Association recognition as exclusive bargaining agent.
At the same time that recognition was obtained, the Association
submitted to the respondent a proposed form of contract. The sub-
ject matter thereof is not clear from the record. Neither the Asso-
ciation nor the respondent introduced in evidence a copy of the con-
tract. Thereafter, some negotiations were had by an Association
committee and the _respondent. Although the answer of the re-
spondent alleges the existence of a contract between itself and the
Association covering terms and conditions of employment, officers of
the Association denied at the hearing the making of such contract,
and we cannot find that any was entered into. The. Association
never requested the respondent to increase wages, shorten hours, or
provide a check weighman, three of the common subjects treated in
labor contracts in the coal mining industry. The Association did
secure from the respondent an undertaking to check off Association
dues; to pay for certain "dead work," such payment, however, not
to come from the respondent but out of the earnings of the machine-
men; and, as landlord, to set aside a rent increase, put into effect a
short time before.
On June 22 the board of representatives of the Association adopted
bylaws for the organization. The bylaws were never submitted to
or ratified by the membership. Among other things, they provide
that only regular employees of the respondent may be officers and
that the officers shall be elected by the board. The conduct of the
business of the Association is vested in the officers and board. The
divorcement thus achieved of the administration of Association
affairs from control by popular vote of the membership has resulted
in an ignorance by members concerning fundamental facts of the
1 1 721 3-39-vol 8-4
3l NATIONAL LABOR RELATIONS BOARD
Association. Substantially all the Association members called as
witnesses by the respondent were unable to state whether or not the
Association had bylaws, whether or not there was a grievance com-
mittee, whether or not the Association had a contract with the re-
spondent; and were unable to name the officers of the Association
or their respective representatives.
Throughout the period under review, employees of the respondent
who became members of the Union were discriminated against in
regard to their tenure and condition of employment because of their
organizational affiliation and activities.- Some were discharged;
others assigned to poor working places in the mine. No such penalty
because of membership or organizational activity was meted out to
Association members. Some Union members were discharged for
not joining the Association. In one instance a Union member was
transferred from his job on the tipple, and the secretary-treasurer
of the Association given his place. The tipple job in question was
at a strategic point passed daily by practically all employees leav-
ing the mine.
The use of the respondent's bulletin board, as already indicated,
was freely made available to the Association. At the hearing the
respondent contended that the bulletin board was for a public use,
over which it had no control. In the light of the record, especially
the position taken by the respondent in connection with the presence
of the Union organizers in Yancey, we entertain little doubt that the
respondent had and has full control over the use of the board in such
matters. While the Union made no request for use of the board, it is
clear that any such request would have been futile. On July 16 the
Association posted a notice on the board stating that "Every man
employed by Harlan Fuel Co., Yancey, Kentucky, must sign a mem-
bership card in the Yancey Workmen Association, Inc."
Upon the foregoing facts and the record, we are convinced that the
Association is not the free representative of the respondent's em-
ployees, which the Act contemplates. Its formation and affairs have
been dominated and interfered with, throughout by the respondent.
It is the creature of the respondent who has supported it. Its exist-
ence can be viewed only as part of the broader plan of the respondent
to defeat the Union and stifle self-organization among the respond-
ent's employees.15
From the outset the respondent, through its officers and super-
visory force, was determined to have its employees become members-
See Section III C, infra.
Cf. National Labor Relations Board v. Wallace Manufacturing Company, Inc, 4th
Cir 95 F. (2d) 818; Matter of Wallace Manufacturing Company, Inc. and Local 2237,
United Textile Workers of dmersca, 2 N L R. B. 1081; National Labor Relations Board
v. Pennsylvania Greyhound Lines, Inc, at al., 58 S. Ct. 577.
DECISIONS AND ORDERS 37
of the Association. This was clear from the circulation of the peti-
tions on the respondent's time, with the assistance of its foremen,
and in violation of its own rule forbidding travel about the mine.
Any desire for expression the employees may have had with respect
to the formation of the Association was effectively thwarted not only
by the manner of the circulation and the threats of foremen, but by
the language of the petition itself which assumed the existence of
the Association and named the representatives.
The record establishes, and what has been set forth above shows,
that throughout the period under review the respondent never ceased
in its support of the Association. It assisted the Association's
organizers, discharged employees who would not join the Association,
and awarded favorable working places to those who did. It lent
further assistance in distinguishing sharply in treatment accorded
the Union. Whereas the Association held its mass meeting without
interference by the respondent, and was permitted the use of the
bulletin board for its notices and organizational literature, the Union
was stopped by force in its activities, had its organizers ejected from
the town, and had its members discriminated against in their tenure
u nd conditions of employment. '
Events as they occurred point to the end sought by the respondent.
An organization, dominated in its formation, with separation of
direction from popular control assuring continued serviency, came
into being to receive from the respondent exclusive recognition as
representative of the employees for purposes of collective bargaining.
It is noteworthy that recognition was based not upon any member-
ship roll taken by the Association after incorporation, but upon the
signatures of the April 1 petitions which, among other things above
mentioned, had been obtained through aid of the foremen. In its
dealings with the respondent, the Association hardly has functioned
as a bargaining agency. It has made no requests of substance; it
has been given no concessions of substance; and so far as the record
discloses, it has secured no contract from the respondent relating to
wages and hours of employment.
We find that the respondent has dominated and interfered with
the formation and administration of the Association, and has con-
tributed support to it; that it thereby has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. The discharges
Charles Gibson and J. Latham were discharged by the respondent
on April 27, 1937. Both men were members of the Union. During
the Union membership drive, above-mentioned, which commenced
38 NATIONAL LABOR RELATIONS BOARD
shortly before the discharge, Gibson and Latham proved very active
in soliciting fellow workers to join. They succeeded in securing as
members all of the employees on their shift. The circulation of the
April 1 petitions and the formation of the Association are not shown
to have caused them to lessen or cease in any manner their efforts on
behalf of the Union. That their affiliation and union activities were
known to the respondent we have no doubt. Denials by witnesses of
the respondent that the respondent had any awareness thereof are
unconvincing.
The section of the mine where Gibson and Latham worked was
closed on the night of April 26. Upon reporting for work the
following day, Latham was told by the foreman, Lovett, of the dis-
continuance of the shift and to see Sharp, the general foreman, about
being assigned other work. It is the usual and customary practice
at the mine to assign employees whose section has been closed or shift
discontinued to other work either in the same or a different classi-
fication. Gibson was a motorman, Latham a coupler. - Motormen,
couplers, and other employees paid on an hourly or salary basis are
generally the oldest workers in point of service, with experience at
various jobs. The record shows that there is a considerable amount
of change in job and classification among the respondent's employees.
Latham went to see Sharp, in company with Lovett. Lovett told
Sharp that he thought Latham would be all right. Sharp replied,
"Hell, no, he is too strong a Union man. I can't use him." While
Sharp denied at the hearing having so said, the general circum-
stances surrounding the discharge show little credence can be ac-
corded Sharp's testimony. Gibson did nothing at the time and
waited several days before asking Sharp for other work. Gibson
then made the request and was told that there was no job for him.
Gibson asked for a recommendation to obtain work elsewhere. Some
days later Sharp gave him one, after first securing authority to do
so from Charles Guthrie, an official of the respondent. In authoriz-
ing the recommendation, Guthrie said to Gibson, who was present,
"Be damn sure you don't bother me any more. Don't be fooling with
my men or trying to sign any of them up."
The respondent contends that it discharged Gibson and Latham
because the section of the mine where they worked shut down. It is
asserted that a want of current demand for the grade and size of coal
there mined occasioned the shut-down. The record shows, however,
that although the section was closed on April 26, it reopened later and
since has been worked ; that the three other motor crews who worked
there, consisting of a motorman and coupler each, apart from the
Gibson-Latham crew, were returned to work ; that all other employees
in- the closed section likewise have been put hack to work; that
DECISIONS AND ORDERS 39
shortly after April 26, new employees were hired for jobs as motor-
men and couplers.
There can be but one finding. The respondent discharged Gibson
and Latham on April 27, refused them other employment, and failed
to reinstate them upon the opening of the section where they worked,
because of their union affiliation and activities. We are of the opin-
ion that the closing of the section was merely an adaptation by the
respondent of the familiar lock-out technique, utilized in this instance
to rid itself of two Union members whose activities threatened the
respondent's own plans concerning organization of its employees.
The hostile words of Sharp and Guthrie, the failure to follow the
usual practice in assigning other work where a shut-down of a section
has occurred, the obvious contrast in treatment between that accorded
the two men and the others with whom they worked, confirm the
conclusion reached.
At the time of the discharge, Gibson was paid as wages $5.75 per
shift; Latham $5.60. Since then, Gibson has earned under $300.
Latham's earnings are not shown.
Blane Stephens was employed as a coal loader by the respondent
about 4 years. He joined the Union in April 1937. On or about May
2, some 5 days after the discharge of Gibson and Latham, Stephens
was discharged by his foreman, York.
Stephens testified that York came to the place where Stephens was
working without stopping at any of the other working places in the
section, and said, "I have got to fire you"; that York gave no reason
therefor; that Stephens, assuming he was being discharged because
of his membership and activities in the Union, made no protest but
in reply stated that some of his tools were elsewhere in the mine,
inferring that he first would have to get them ; that York then said,
"Anyhow, you got to go on out."
York was called as a witness by the respondent. He testified that he
went into Stephens' working place as a matter of mine inspection;
that he found the roof in bad condition and the place poorly timbered ;
that he and Stephens then jointly proceeded to measure the distance
from the nearest timber to the working face and found it to be 31
feet; that there was only one timber in the place and it was set
crooked; that thereupon he discharged Stephens for failure to main-
tain his timbering. On cross-examination, York admitted that he
had been in Stephens' working place 2 or 3 days before and had not
observed that the timbering was bad.
The respondent also called as a witness one Pace, an employee
loading coal in Stephens' working place. Pace testified that he was
off work for 11 days ; that at the time he left, the working place was
timbered to within 6 feet of the face; that on his return to work, he
40 NATIONAL LABOR RELATIONS BOARD
found the place was not properly timbered. Pace's testimony fails to
fix what time relationship, if any, his period away from work and
return, had to the date of Stephens' dismissal.
Stephens specifically denied at the hearing York's version of the
discharge. He testified that his working place had been properly
timbered. The record does not show that Stephens, during the
entire course of his employment, ever failed to set his timbers in
accordance with mine rules, or that he ever was reprimanded or
warned for so failing. The respondent does not claim it gave
Stephens any opportunity on May 2 to do the timbering it alleges
he failed to do, despite his 4 years of competent service. While the
respondent urges that vigorous enforcement of its timber regulation
moved York to discharge Stephens, it appears that a Kentucky
statute of similar purpose requiring daily inspection of safety con-
ditions in working places was not followed by York although it is
admitted that that was his duty under the statute.
We have concluded elsewhere below that York is not a credible
witness. The part he played was sinister in aim. This, as well as
the nature of his testimony above reviewed, the admission on cross-
examination, and the circumstances as a whole impel us to accord his
testimony no greater weight here. We are satisfied that Stephens
was peremptorily discharged without ostensible cause. Such dis-
charge by the respondent of an experienced coal loader, shortly after
his becoming a member of the Union, creates a natural suspicion as
to the motivation of the respondent's action. When it is noted that
the discharge occurred in the midst of a period of Union activities,
and counter-activities by the respondent, at a time when, as wq find
herein, the respondent discharged a number of its employees because
of their Union membership and activities, we are compelled to con-
clude, as Stephens himself understood when his discharge occurred,
that he had been discriminated against. Pace's testimony, we feel,
is so uncertain as to time and event, and otherwise unsatisfactory, as
to be without consequence.
At the time of his discharge, Stephens earned on an average $100
per month. He has earned nothing since.
Ray Walters, a coal loader, was discharged by Sharp 3 days after
the dismissal of Stephens, above-mentioned. Walters also had joined
the Union in April. Sharp told Walters that the reason therefor
was that Walters had been away from work attending a carnival
the preceding Saturday night, May 1, without first having secured
the respondent's permission. Walters immediately protested to
Sharp that the real reason for the discharge was Walters' refusal to
join the Association.
DECISIONS AND ORDERS 41
About a week prior to the discharge , Collier, the foreman whose
activities have been noted above , approached Walters and his cousin,
Ester Walters , while at work and requested them to sign the petition
for "the company -protected union." Collier mentioned that those
who signed would be given work at the proposed new loading ma-
chines and the others would not . Walters refused to sign; Ester
Walters did . On the following Saturday night, May 1, 44 of the
respondent 's employees , including Walters and Ester Walters, laid
off work , without permission , to go to the carnival.
The record shows that of the 44 employees who went to the car-
nival only Walters and one other employee , who likewise had re-
fused to sign the petition , were discharged for having laid off.
While it does not clearly appear that all of the others had signed
or were members of the Association , the evidence does establish that
at least one , Ester Walters , who had signed the petition had not been
so disciplined . It has not been the respondent 's rule or practice to
discharge an employee for absence without leave , but, in proper
cases, to lay off the employee for a specified period 16
The discharge of Walters also occurred during the period of
marked activity by the Union and repressive antiunion acts by the
respondent . Walters' refusal to sign the petition at Collier 's solici-
tation showed the respondent where he stood . His dismissal, along
with one other employee who had not signed the petition , when 42
employees in like position received no such penalty , as well as the
departure by the respondent from its accepted mode of discipline,
convinces us that the true cause of his discharge was not his Satur-
day night absence but his refusal to join the Association and give
up his membership in the Union.
Lee Cornett joined the Union in early May. On May 21 he was
in the office of Sharp , the general manager , looking at the time sheet,
when Sharp came in . After sending another employee who was
present out of the room and closing the door, Sharp turned to Cornett,
saying : "Lee, I understand you are organizing up here on the com-
pany's time ?" Cornett replied , "Mr. Sharp, absolutely not." Sharp
then said "Lee, we are paying you good for your wages here. You
work, and we don 't want [any] organizing on the company's time."
To this Cornett answered , "Mr. Sharp , I am not organizing, but if
you are laying at me for belonging to the Union, I sure belong."
Sharp in his testimony at the hearing did not deny this conversation.
Three days later, May 24 , Cornett was told by his foreman, Fee,
that he was being laid off as a trackman , although he could have a
job as a coal loader . Cornett had worked as a trackman at the mine
16 This appears from the testimony of Parsons , Watkins, Pierce, Brannin , and Day.
42 NATIONAL LABOR RELATIONS BOARD
for almost 2 years. The following day, Cornett went to the working
place assigned to him for coal loading, and found that the place was
so dangerous as to imperil the life of anyone working there. He
then reported the matter to Fee and asked to be assigned another
working place. Fee replied that he had none for Cornett. Cornett
then left.
The respondent called several witnesses. Fee, the foreman, testified
that Cornett was transferred from track work to coal loading for
inability to lay switches properly; that Cornett had not been dis-
charged; that he, Fee, knew nothing of Cornett's Union affiliation.
Hamilton, Cornett's former foreman, testified that Cornett's services
as trackman for the year Cornett worked for him were unsatisfac-
tory. Lowery, a trackman, and one of the organizers of the Associa-
tion, testified that during the year before the discharge he had to
re-lay every switch that Cornett laid. The record raises doubt,
however, that Lowery and Cornett worked in the same section to-
gether during the year preceding the discharge, and Lowery admitted
on cross-examination a general prejudice. Jackson, a motorman,
testified that the switches laid by Cornett caused cars to leap the
track upon several occasions, and that Lowery had had to re-lay them.
On cross-examination he testified that he did not know whether or
not Cornett had laid the switches in question. Bargo, a trackman,
who allegedly had caused Cornett to be transferred from Hamilton's
section to Fee's section for asserted inefficiency, testified that he did
not know whether Cornett had laid any switches in Hamilton's section.
We are unable to attach any weight to the foregoing testimony
offered by the respondent in support of its claim- that Cornett had
been transferred to another classification, at work where his life was
in grave danger, solely because of inefficiency. The testimony is
unpersuasive, often confused, and reflects bias. Cornett had been
employed as a trackman for 6 years at other mines before he came
to the respondent, and served in that capacity with the respondent
for almost 2 years. During the time he was with the respondent no
complaints were made to him about his work, and he received the
regular wages paid the trackmen. Sweeney, another employee called
by the Board, testified that Cornett was a good trackman.
The respondent also sought to show at the hearing that Cornett
admitted to one Anderson that the working place assigned Cornett
was safe. This evidence we find difficulty in believing. Fee, in his
testimony, did not deny the hazardous character of the working place
he had given Cornett ; indeed, the proof is that Fee admitted its
dangerous condition to one Grant.
We are of the opinion, and find, that Cornett was transferred by
the respondent from his position as trackman to coal loader, and
DECISIONS AND ORDERS 43
1
then assigned an unsafe working place, because of his Union mem-
bership and activities; that the claimed inefficiency has not been
established, and, apart from that, constituted a mere pretext em-
ployed by the respondent to rid itself of another Union member.
The conversation between Sharp and Cornett, in which Cornett was
accused of organizing during working hours, can only be interpreted,
in the light of the record, as an indirect method taken by the re-
spondent to warn Cornett about his remaining a Union member. We
feel that Cornett accurately interpreted the conversation- when it
occurred. In view of Sharp's interrogation about Cornett's activi-
ties, Fee's denial of knowledge thereof cannot be accepted. Trans-
ferring Cornett to work as a coal loader and then offering him a
working place where he could not work without peril to his life,
constitutes a discharge, within the meaning of Section 8 (3) of the
Act."
At the time of his discharge, Cornett earned as trackman $5.60
per shift, seven shifts per week. Since May 24, 1937, the last day he
worked for the respondent, Cornett has earned $9. °
Albert Young, a coal loader, was discharged by York on May 25.
When the respondent circulated the first petitions in January or
February, heretofore mentioned, intended for use in connection with
the request to the Governor to keep the Union organizers out, Young
refused to sign. Young joined the Union in April. Three days
before his discharge, on May 22, Young attended a gathering of
employees at Yancey, assembled to listen to some organizers of the
Union. Young actively assisted in the solicitation of members which
then occurred. The day happened to be the same one on which the
Association was holding its mass meeting above-mentioned.
At the time of his discharge Young was called by York from his
place of work and told to "bring his tools out." The expression meant
that Young was dismissed. When asked for a reason York replied,
"I have plenty of reasons." Young said "I would like you to explain
some of them." 'York answered, "Where were you on Saturday?"
Young then said "That was up to me. I had a right to go any place
I wanted to." Young also informed York that he was carrying, and
evidently intended to continue to do so, application cards for member-
ship in the Union. York thereupon handed Young an order of dis-
charge but refused Young's request to write on it the reason for the
discharge. The mine did not operate on May 22. Young's testimony
17 Matter of Clover Fork Coal Company and District 19, United Mine Workers of America,
4 N. L. R. B. 202; Clover Fork Coal Company v. National Labor Relations Board, 6th
Cir, decided June 7, 1938, 97 F. (2d) 331. Note, under Kentucky Acts of 1934, Extra
Session , C. 21, Sec. 42, it was Cornett's statutory duty to refrain from working the
place until the unsafe condition was remedied. It is clear that the respondent took no
steps to have the working place made safe.
44 NATIONAL LABOR RELATIONS BOARD
was not denied by the respondent although York was called several
times as a witness at the hearing.
We find from the foregoing facts that the respondent discharged
Young on May 25 because of his Union activities. Young was then
earning an average of $4.64 per shift, or approximately $115 to $120
per month. Since that date he has earned nothing.
0. Perkins and E. Mason worked on the tipple. Perkins was dis-
charged by the respondent on June 15; Mason on June 16. Both
men were members of the Union. Mason had been in the employ of
the respondent for over 16 years.
Three days before his discharge Perkins was told by either Charles
or Clyde Guthrie, officials of the respondent, while conversing with
them, that his working day was being decreased to 7 hours because
"a damn Union man didn't want but seven hours." Perkins was being
paid on an hourly basis. On June 15, at the end of the shift he was
discharged by Charles Guthrie for allegedly having slept at work
earlier in the day.
Charles Guthrie was a witness for the respondent. He testified
that on the day of Perkins' discharge, he, Guthrie, and one Patterson,
a visitor, passed by the coal crusher where Perkins worked and found
him asleep; that he, Guthrie, did not then reprimand Perkins because
he did not wish to embarrass the visitor; that he later discharged
Perkins.
Perkins testified that he had not been asleep at work when Guthrie
and his visitor came to the crusher, that he had observed them come,
examine the machinery, and leave.
Mason was discharged by Sharp the following day, likewise for
allegedly sleeping at work. Sharp testified that he, accompanied by
Joe Guthrie, a brother of the Guthries who were officers of the re-
spondent, went to Mason's station at the crusher and found him
asleep ; that they thereupon threw pieces of rock and iron on the
floor in order to awaken Mason but did not succeed ; that at that time
a belt on one of the conveyors came off and hit a wall, making a loud
noise and awakening Mason; that Sharp then told Mason he could
no longer work on the crusher and gave his job to Joe Guthrie, until
another employee could be secured to fill it. Sharp further testified
that he had found Mason asleep 2 weeks before and had warned him
about it. Sharp claimed that Mason had not been discharged but
merely removed from the crusher, that Mason himself had quit. The
record shows that because of his age and ill health Mason could not
work elsewhere in the mine.
Mason denied at the hearing the incident as depicted by Sharp.
Mason testified that he had not been asleep when Sharp and Joe
Guthrie arrived at the crusher; that some 5 minutes before he had
.DECISIONS AND ORDERS 45
been engaged in and had completed-repairing the machinery which
broke down; that Sharp accompanied by Joe Guthrie came to him,
accused him of sleeping, discharged him, and put Guthrie in his place.
He denied having been given the alleged warning testified to by
Sharp. Arthur Young, another witness, stated that on the day in
question, as he and his brother were leaving work, Mason called to
them to assist him in fixing the crusher; that his brother went to help
Mason and he went into the bathhouse; that his brother joined him
there some 15 minutes later; that a half hour later he met Mason
who told him of the discharge.
The evidence shows that Perkins and Mason are the only employees
ever discharged by the respondent for having slept at the tipple. All
of the employees working there have slept at one time or another
during working hours. Sharp testified on cross-examination that "if
a fellow stayed up there long it would make him sleepy." One of the
respondent's witnesses, Johnson, testified in response to interrogation
by the Trial Examiner, as follows :
Trial Examiner EWELL. You said you had been asleep there
yourself ?
WITNESS. I have been asleep, yes, sir, in fact every man on the
job, I expect, has been sleeping.
Trial Examiner EWELL. On the job?
WITNESS. On that tipple. .
Trial Examiner EWELL. And is he the only man that ever got
fired for it?
WITNESS. No, sir ; thinks they fired someone else.
Trial Examiner EWELL. Know who they fired?
WITNESS. Think the other was Sode Mason.
Sode Mason is E. Mason.
We have carefully considered the discharges of Perkins and Mason
and are satisfied that they too were discharged because of their Union
affiliation. No other employee at the tipple has ever been discharged
by the respondent for sleeping during working hours-the act of
which these men stood charged-although sleeping on occasion dur-
ing working hours has not been an uncommon practice among those
at work on the tipple. Only a few days preceding Perkins' discharge
there had been a marked display of animosity toward Perkins by
officials of the respondent, and a threat of cut in wages, because of
his Union membership. Mason, despite his 16 years of service with
the respondent, was summarily discharged. We do not believe
Sharp's testimony of a warning given Mason 2 weeks before. And
Sharp's statement that he had not discharged the old employee but
merely removed him from the crusher, the only place where Mason
46 NATIONAL LABOR RELATIONS -BOARD
could work, is specious and ironic.18 The discharges of the two Union
men coincided with the time when the Association, which we have
found was the creature of the respondent, was seeking recognition
as bargaining agent on the claim that it represented a majority of
the employees. We are equally satisfied, although not determinative
of the issue here,19 that neither of the employees was asleep, as claimed.
In the instance of Mason, Young's testimony corroborates a chronology
of events preceding the discharge, as testified to by Mason. There is,
moreover, a matter of doubtful fortuity in Sharp's being accom-
panied by Guthrie, available for replacement, before the need therefor
appeared.
At the time of their discharges Perkins and Mason each earned
$8.28 per shift, six shifts per week, or $49.68 per week. Since their
respective discharges, Perkins has earned $10, Mason nothing.
Chester Perkins and Arthur Young also worked on the tipple. To-
gether with Nap Young,29 another employee, they constituted one of
the regular tipple shifts. All three men belonged to the Union.
Young was a strong Union member. At the time the April 1 petitions
were circulated he refused to sign although solicited in the presence
of Sharp.
On or about July 19 the Perkins-Young shift was discontinued by
the respondent without previous warning. The working hours ap-
portioned the discontinued shift, 71/2 hours, were divided among the
two remaining shifts by increasing the respective hours of each. At
the hearing the respondent contended that discontinuance of the
shift had been ordered for economy reasons. The record shows, how-
ever, that employees on all three shifts were paid on an hourly basis.
Any discontinuance of one shift, therefore, attended by a correspond-
ing increase in the hours of the others, merely would result in a pro-
portionate increase in. the wages paid the other shifts, and no
economy.
Shortly after the discontinuance of their shift Chester Perkins and
Young asked Charles Guthrie whether there was any other work for
them to do. Perkins had been a coal loader. Guthrie told the men
that there was nothing for them. He told Perkins that he, Perkins,
had no job, and accused Perkins of "sticking him in the back."
Thereafter, Perkins asked Guthrie to approve the cashing of his
wage credit slips. This Guthrie refused saying that Perkins had
"joined in with Turnblazer," and was in "bad company." The
18 We have already pointed out such conduct constitutes a discharge under the Act.
See footnote 17.
19 Matter of The Kelly-Springfield Tire Company and United Rubber Workers of America,
Local No ,26, etc, G N. L. R. B 325
20 Allegations in the complaint as to the discriminatory discharge of Nap Young were
dismissed . See footnote 4.
DECISIONS AND ORDERS 47
"Turnblazer" mentioned was William Turnblazer, president of the
Union. By "sticking him in the back" and "bad company" Guthrie
had reference to Perkins' joining the Union.
Some time prior to the discontinuance of the shift Guthrie had
made other remarks concerning the Union. Perkins testified that he
and Edgar Baird, another employee hereinafter mentioned, were-
asked by Guthrie why they had joined the Union; that Guthrie then
proceeded to speak in derogatory fashion about it; that Baird com-
mented, "Charles, I guess you would fire us if you could," to which
Guthrie answered, "You're damn right I would," adding that he
could find many reasons for discharging employees besides their
Union activities. At the hearing Guthrie denied the conversation as
testified to by Perkins. Guthrie's version was that he asked Perkins
and Baird, "What is it you fellows are joining the Union around
here to make me do. If I find out I will go ahead and do it and stop
all this trouble." By "trouble" Guthrie explained that he had meant
"All this messing around, dissatisfaction there... Well, you
know, organizers running over the place ..." Quite apparent,
from Guthrie's own testimony, he was moved to keep his employees
from belonging to the Union. From this, as well as his attitude and
other statements above-mentioned, we feel he also made the earlier
remarks attributed to him by Perkins.
We are of the opinion that the respondent discontinued the shift
composed of Arthur Young, Chester Perkins, and Nap Young, by
dividing the work hours among the other two shifts, because the three
men were members of the Union. The foregoing facts, in the light
of the entire record, support such conclusion. The shift having been
discontinued for such reason, the loss of employment which resulted
constituted a discharge, within the meaning of Section 8 (3) of the
Act. `
We accordingly find that the respondent discharged Chester Per-
kins and Arthur Young on July 19 because of their membership in
the Union. At the time of their respective discharges each was paid
$5.18 per shift, and worked six shifts per week. Since then neither
has earned anything.
Homer Slover was employed as a motorman for 11/2 years. He was
a member of the Union and continued his membership after recogni-
tion had been accorded the Association as bargaining representative.
On one occasion York, the foreman, asked Slover if it were not true
that he was a member of the Union. Slover replied, "Yes, sir. -What
do you want to do, fire me now or wait a while?" York answered,
"No, don't get me wrong. I just asked how many belong to it."
Slover then said, "There is a good many belong to it in my opinion."
On August 27 York discharged, Slover allegedly for leaving a ven-
48 NATIONAL LABOR RELATIONS BOARD
tilation trap-door open for one-half hour, which time was longer than
that permitted by a rule of the respondent. Under the rule, motor-
men are required to keep trap-doors shut except during the several
minutes necessary for taking a train through, dropping the cars, and
returning.
At the hearing York, called as a witness by the respondent, testi-
fied on direct examination that Slover had left the door open a half-
hour on the day of the discharge and York discharged him therefor.
On cross-examination York testified that he had found the trap-
door open after Slover had gone through with his train and assumed
that Slover would return shortly; that he, York, then spoke with
one "H. C. McCann," 'another motorman waiting on a side track,
who told him that Slover had been through the door about 20 min-
utes before; that 5 minutes later he, York, returned and closed the
trap-door which still was open; that he, York, then sought out
Slover and reprimanded him for leaving the door open. York fur-
ther testified that he did not discharge Slover at that time, or notify,
him thereof, but discharged him at the end of the shift. York ad-
mitted that he did not know of his own knowledge whether Slover
had left the door open the asserted half hour; that York only knew
of the 5 minutes when he was there ; that Slover had never before
left the door open an improper length of time.
The respondent also called one H. C. McKeehan as a witness. It
is clear from the record that the "H. C. McCann" referred to by
York, and H. C. McKeehan are one and the same person.21 With
reference to Slover's discharge, the following appears in McKeehan's
testimony :
Q. Do you know why [Slover was discharged] ?
A. [McKeehan] Yes, I know ... what the boss [York] said
he was going to discharge him for.
Q. Well, I don't ask you to tell what the boss said. Where
were you when he was supposed to have been discharged.
A. On the side track... .
Q. Do you know whether the trap-doors above where you were,
were left open?
A. No. I don't know for sure whether it was or not.
Q. [on cross-examination] What did you say about the doors,
did you say you saw them, or saw Mr. Slover, or anything of
that kind?
A. No, did not say anything about it.
In the light of McKeehan's statement above and York's own admis-
sions, York's direct testimony that Slover had left the trap-door open
21 The error is quite evidently typographical.
DECISIONS AND ORDERS 49
a half hour, and that that was the cause of the discharge stands com-
pletely discredited. All that York knew was that Slover had left
the door open 5 or 10 minutes. And, at the hearing, Slover so testi-
fied. It is conceded that such a length of time was permissible. We
do not believe, particularly in view of McKeehan's denial, that York
ever was told by McKeehan that Slover had been through the door 20
minutes. We are satisfied from what McKeehan has testified and
the record as a whole that York went to the trap-door with a prior
determination to discharge Slover.
The evidence also shows that the respondent's trap-doors are often
open for 1 or 2 hours at a time; that upon at least two occasions trap-
doors were broken and left open for several days; that no other
employee has ever been discharged by the respondent for the reason
given Slover.
We are convinced that the claimed ground for the discharge never
occurred; that its assertion was a pretext, no less than in other in-
stances above discussed; that the respondent discharged Slover on
August 27 because of his membership in the Union. At the time of
his discharge Slover earned $6.56 per 8-hour shift. Since that date
he has earned nothing.
Clifford Smithers and Leslie Smithers, brothers, worked together
as coal loaders at the mine. Both were. members of the Union. Fee,
the foreman, discharged the two, Clifford on September 3 and Leslie
on September 29, in each instance for allegedly working on a "failed
shot" without waiting 24 hours after the charge had been set off, as
required by a mine rule. Although Fee denied at the hearing that
he knew of Leslie's Union affiliation, we have no doubt that he knew
of both brothers'. The record shows that a short time before Clif-
ford's discharge Fee approached Clifford and asked how "that damn
Union" was getting on, expressing the- opinion that it was "about
through"; that Clifford had replied, "No, it is just getting started."
Leslie had been specifically warned by one Jones, who solicited his
membership in the Association, "If you don't, you will be fired."
On Friday, September 3, after Clifford had been at work some 2
hours laying the temporary track and loading 4 cars of coal, Fee
came in and discharged him. Clifford testified that Fee asked
whether he knew that there was a failed shot where he was working;
that Clifford replied that he did not know and asked when the charge
had been set off; that Fee stated, "Wednesday morning between 2
and 3 o'clock"; that Clifford then pointed out that that was more
than 24 hours previous; that Fee merely replied "You can go see
Frank [Sharp] about it." Sharp affirmed the discharge.
The time when the powder charge in question was placed and
failed to detonate was not established by the respondent. The plac-
ing of charges in the mine wall, and setting them off, are done by
50 NATIONAL LABOR RELATIONS BOARD
employees known as shot firers. Clifford was given no notice and
had no knowledge of any failed shot at the time he commenced work.
Although the respondent failed to introduce in evidence its printed
copy of the rule, the proof sufficiently shows that the rule not
merely prohibits loading in the vicinity of a failed shot until 24
hours have elapsed, but provides that during such period the work-
ing place where the shot failed to detonate must be barricaded and
warning notices posted. The taking of these precautionary measures
rests with the shot. firers in the first instance, and with the foreman,
in general. Elsewhere Fee testified that he "always blocks off those
places until they are made safe." In view of the want of proof
regarding the time when the shot in question was placed, and the
failure of the respondent to give the required warnings, we find
no reason for disbelieving Clifford's testimony that Fee had admitted
that the shot had been placed on the preceding Wednesday.
Leslie Smithers was absent from work on the day Clifford was
discharged. On September 29 Leslie was discharged under sub-
stantially similar circumstances. Leslie had bes;n at work about 2
hours when Fee came in and stated that Leslie was working with a
failed shot in his place. Leslie previously had examined the work-
ing place and found no holes indicating the presence of failed
charges. No barricade had been raised or notices posted. Leslie
told Fee he did not know of any failed shot. Fee then turned his
light toward the rib, several feet away from the working face, and
found the shot. The coal on the rib where the hole was located
was not cut, and the hole itself was filled and covered with coal dust.
At the hearing, Fee claimed that the hole was only 4 feet from the
working place. Leslie testified that it was 15 feet. From Fee's own
testimony in general, as well as Leslie's, it satisfactorily appears that
the hole was considerably further than 4 feet from the working
place.
We are convinced, by the absence of any satisfactory showing that
either Clifford or Leslie in fact had worked within 24 hours after a
failed shot, by the unexplained lack of due warning by the re-
spondent to either employee of the presence of the danger whose
supposed ignoring justified his discharge, by the unusual placement
of the shot hole in Leslie's case, and the record that neither man on
the day of his discharge was working in a place where a shot had
failed within the time alleged. We also are convinced that Fee knew
this. The true reason for the discharge of the Smithers brothers
lies elsewhere, in their continued Union membership. Clifford and
Leslie were the only employees ever discharged by Fee, except one
unidentified person discharged some 2 years previous, for "working
a failed shot." The shot firer who placed the shot in Leslie's case
DECISIONS AND ORDERS 51
is still employed by the respondent despite his failure to erect barri-
cades and post notices. The respondent does not even appear to have
disciplined him. As heretofore stated, Fee participated in the dis-
charge of Lee Cornett, for Union affiliation and activities. We are
satisfied that he did likewise in connection with Clifford and Leslie
Smithers. We find that the respondent discharged these employees
because of their membership in the Union. At the date of his dis-
charge Clifford Smithers averaged in earnings $5.40 per shift. His
earnings since have been not more than $4.
Albert Goins was a shot firer at the mine for 5 years. He was
discharged by the respondent on September 30 for using a motor
to transport explosive powder, in violation of a mine rule. Goins
was a known Union member. He refused to join the Association
although solicited several times. On one occasion his affiliation
caused Charles Guthrie to accuse Goins of "pinching him in the
back," and to threaten to "get even."
At the hearing Goins conceded the use of a motor to transport
powder, but took the position that such use was a common practice
at the respondent's mine, ordered and acquiesced in by the respond-
ent's officers and supervisory force. Goins testified that he had fol-
lowed the practice during his entire employment as a shot firer; that
the mine superintendent told him to do so as early as February 1933;
that Collier, the foreman, had observed such use numerous times;
that in at least one instance Charles Guthrie furnished him with a
motor; that other shot firers customarily used motors, and on some
occasions cutting machines, which are more dangerous. Other wit-
nesses testified to the same effect : Harbin, that he had seen Goins
use a motor a year previous to the discharge and again 2 or 3 days
before; Mason, that as motorman he had been instructed by his
foreman to leave his motor out for use by the shot firers; Collins,
that he and the shot firers on 13 or 14 crews transported powder on a
cutting machine which is more dangerous because it gives off more
sparks than a motor.
At the hearing Collier denied ever having seen Goins use a motor,
and Guthrie that he ever furnished Goins one. No denial was made
that other shot firers followed the practice.
The record amply supports the contention of Goins. It is evident
that whatever rule or other prohibition may have existed, it was the
established practice and usage at the mine for shot firers to employ
motors at the respondent's mine, that this practice was acquiesced in,
if not authorized, by the respondent. Any mine rule governing the
situation long had fallen into disuse.
In this circumstance, little credence can be given the respondent's
contention that it discharged Goins for using a motor in the course
of his work. Of greater relevance is Guthrie's threat to "get even"
117213-39-vol. 8-5
52 NATIONAL LABOR RELATIONS BOARD
with Goins because of his Union membership. The true cause of
Goins' discharge was no different than that in the other cases we
have considered. We find that the respondent discharged Goins on
September 30 because of his membership in the Union. Goins then
was earning $6.56 per shift. He has earned nothing since.
Earl Slaakel f orth,, Charles Osborne, Oley Bates, and David Davis
were discharged by the respondent on various dates, respectively,
during the period under review. While there is some inference in
the record of discrimination, within the meaning of Section 8 (3) of
the Act, the evidence is not sufficient to support a finding that such
discrimination occurred in regard to any of these men. Although
Shakelforth was discharged on the same day that he joined the Union,
the testimony of himself and his foreman, Emery, indicates that the
cause of the discharge was Shakelforth's refusal to repair the track
leading to his working place which a motorman had torn up by acci-
dent. Osborne was discharged when he refused to remove some six
or seven cars of rock for which no compensation would be paid him.
Coal loaders are expected to do an amount of such work and there is
no showing' that the amount iii question was unusual. Oley Bates
and David Davis were discharged after they had been arrested for
participation in a brawl in which gun shots were fired. While Bates
and Davis do not appear to have been responsible for the occurrence,
such want of culpability does not establish that their discharge was
discriminatory.
We find that the respondent has discriminated in regard to the
tenure of employment of Charles Gibson, J. Latham, Blane Stephens,
Ray Walters, Lee Cornett, Albert Young, O. Perkins, E. Mason,
Chester Perkins, Arthur Young, Homer Slover, Clifford Smithers,
Leslie Smithers, and Albert Goins, thereby discouraging membership
in the Union ; that by such acts, and by other acts herein mentioned,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed • in Section 7 of the
Act.
' We find that the-respondent has not discriminated in'regard to the
hire or tenure of employment or of any term or condition of employ-
ment of Earl Shakelforth, Charles Osborne, Oley Bates, and David
Davis.
D. Discrimination as to terms and conditions of employment-
Johnston Sweeney was the head trackman in one of the sections at
the mine, and together with one Goodman constituted the regular track
crew. Both men were Union members. Sweeney was solicited to
join the Association but refused. Shortly after the solicitation, the
foreman in the section 'added two new trackmen to Sweeney's crew
DECISIONS AND ORDERS 53
and the following week laid off Sweeney and Goodman. Both men
went to see Sharp about the matter and were told that' it had been
found necessary to decrease the number of trackmen in that section
to two. Sweeney was assigned work as a coal loader under York.
Coal loaders are paid on a tonnage basis.
In his new job Sweeney experienced great difficulty in securing
cars for loading purposes. Complaint to York and Sharp brought no
result. On one occasion Sweeney accused the motorman who brought
the cars of not furnishing him enough because he was a Union mem-
ber. The next day Sweeney received six cars; the following, none.
Further complaint by Sweeney resulted in Sweeney's being trans-
ferred to another working place where he was doubled up with Elmer
Perkins. As chief trackman Sweeney had earned $5.60 per 7-hour
shift and had worked 8 to 10 shifts per week. After the transfer his
earnings depreciated considerably.
At the hearing Sharp testified that Sweeney had been transferred
from track work to make room for a machineman. No explanation
was offered why in the week preceding the transfer the respondent
had deemed the work so abundant as to add two new men to the crew,
nor why neither of these two men was transferred when the need for
transfer arose.
The conduct of the respondent in regard to Sweeney can only be
interpreted as moved by an intent to single him out for his adherence
to the Union and to discriminate against him by preventing him
from earning the rewards which his capacity and willingness would
bring. There is no mistaking the plan pursued to deprive Sweeney
of rights guaranteed by the Act. To afford it an excuse for removing
Sweeney, along with Goodman, from a position where his.earnings
were computed on a shift basis, two new trackmen were added to
Sweeney's crew, and Sweeney and Goodman then laid 'off. To defeat
the possibility of his sustaining at coal loading the amount of his
earnings, the respondent furnished him an insufficient number of
cars. That it was of equal advantage to itself to provide the neces-
sary cars did not deter the respondent. When Sweeney repeated his
complaint he was doubled up with Elmer Perkins, mentioned below,
the necessary result of which was to hamper the work of both men
and prevent each from earning as much.
We find that the respondent discriminated against Sweeney in re-
gard to terms and conditions of employment, thereby discouraging
membership in the Union.
Elmer Perkins, a brother of Chester Perkins, heretofore mentioned,
worked on the tipple for 2 years. Shortly after his joining the Union
Elmer Perkins was told by Charles Guthrie that his workday was
being decreased to 7 hours because he had "been running' around in
54 NATIONAL LABOR RELATIONS BOARD
bad company." The statement was substantially the same as that
made by Guthrie to Chester and O. Perkins, set forth above. On
July 6 Elmer Perkins was transferred from his job on the tipple to
coal loading , likewise in York's section. He was assigned a danger-
ous and poor working place, doubled with one Davenport. There-
after, Davenport was assigned a working place elsewhere and Sweeney
was moved in with Perkins as above stated. Perkins' job on the tipple
was given to one Leonard, the secretary-treasurer of the Association.
The job on the tipple was strategically located from the standpoint
of affording Leonard daily contact with the mine employees. 22 Per-
kins, when working on the tipple, had earned $7.99 per 12-hour shift.
In June he earned $119. After the transfer to coal loading, his earn-
ings precipitately dropped to $23.76, for July.
Sharp testified that Perkins was transferred from the tipple to make
room for a motorman . Why this should have resulted in Perkins'
position being given to Leonard is not satisfactorily shown. Perkins'
service during his 2 years on the tipple was competent. Nor is
adequate explanation made for Perkins being doubled with Daven-
port, or the exchange of Davenport for Sweeney. It is customary
practice at the mine not to double men up because of the consequent
lessening of production, particularly where the working place is poor
and dangerous, nor to shift a coal loader until it is infeasible to work
further the place assigned. York testified that the only available
working place for Perkins was with Sweeney. However, Perkins, as
stated above, was doubled not with Sweeney but with Davenport,
until Davenport was assigned a different working place. York, we
have said, was not a credible witness. His testimony with respect
to Sweeney, and otherwise, is completely unconvincing.
We are satisfied that the respondent transferred Perkins from
the tipple in order to reduce his earning power, that this was done
because of his Union membership. We find that the respondent dis-
criminated against Perkins in regard to terms and conditions of em-
ployment, thereby discouraging membership in the Union.
Nead Patterson was employed as a coal loader. Before joining
the Union, he, along with two other coal loaders, was assigned and
worked an 8-car wall, approximately 80 feet in width. Patterson
joined the Union, and it is uncontroverted that his foreman knew
about it. Almost immediately Patterson was changed to a 1-car wall,
not more than 16 feet wide; track which he needed to bring the cars
into the place was not furnished; the coal was not shot properly.
As a consequence, Patterson's average daily production, which during
the 6 months preceding his transfer was 10.42 tons per day, fell dur-
sa See Matter of Atlantic Greyhound Corporation and Brotherhood of Railroad Train-
men, 7 N . L. R. B. 1189.
DECISIONS AND ORDERS 55
ing the succeeding 24 workdays to 9.2 tons per day. His earnings
decreased correspondingly. On August 9 Patterson quit. We have
no doubt that the respondent, in transferring Patterson, likewise
discriminated against him in regard to terms and conditions of em-
ployment.
One year previous, in June 1936, Patterson's mother died, and the
funeral expenses were paid out of a burial fund maintained by the
respondent to which all employees contributed an assessed monthly
payment. A few weeks later Patterson left his work, but returned
in October 1936. Thereafter he regularly paid the monthly burial
assessments. On July 19, 1937, after Patterson joined the Union,
Charles Guthrie presented a bill in the amount of $90 for funeral ex-
penses in connection with the death of Patterson's mother, and until
Patterson quit on August 9, deductions n ere made from his daily,
earnings on account thereof. Prior to July 19 no demand ever had
been made for such payment, nor does it appear that Patterson was
expected to do so. We have grave suspicion that the charge was an-
other act of discrimination against him. However, we are unable so
to find on the record presented. Neither the rules of the burial fund,
nor the details of its creation, are shown.
-
Edgar Baird and Roy Brannin are coal loaders and members of-
the Union. Their affiliation was known to the respondent. Baird
has been mentioned above in connection with the discharge of Chester
Perkins. The record shows that in June, about the same time that
the Perkins incident occurred, Clyde Guthrie approached Baird and
said, "Baird, you brung the Union on us." Baird answered, "No, I
didn't bring it on. It was already here." Clyde then said, "You have
been agitating it."
Baird worked alone in a working place 24 feet wide, with room
for two cars. Commencing with June 22 he began receiving an in-
sufficient number of cars in which to load his coal. One week later
Brannin was doubled with him, and another coal loader given
Brannin's place. , The number of cars continued to be inadequate. A
complaint to York met with no success. The record shows that at
that time another coal loader in the same section, one Johnson, who
had joined the Association, was given as many cars as Baird and
Brannin together received. Whereas during the 6 months prior to
June 1937 Baird's average daily production was 12.662/3 tons, during
the 38 working days from June 22 to September 30 his daily average
was, 10.06 tons. Brannin's average daily production of 14.068 tons in
6 months prior to June 29, the date he was doubled, dropped to 10.777
tons during the 38 working days from June 29 to September 30.
The earnings of the two men decreased accordingly.
York testified that Brannin and Baird were doubled because "the
56 NATIONAL LABOR RELATIONS BOARD
super told me to rush that head." The reason for the rush, if any,
is not shown, nor if such was the case, why the men were not given
what cars they needed. As we have said before, York's testimony
warrants no belief. We find that the respondent discriminated in
regard to the terms and conditions of employment of Edgar Baird
and Roy Brannin, respectively.
James Wilburn and Tom McIntyre are coal loaders at the mine and
active union members. Wilburn was vice president of the Union
local and active in soliciting memberships. On July 6 the men were
doubled together in a narrow working place large enough for only
two cars. Neither had been doubled before except on rare occasions.
Eight or ten other members of the Union at work in the same section
likewise were doubled. Some 3 days later Wilburn and McIntyre
began having difficulty in securing cars. Wilburn's average daily
production of 11.21875 tons, maintained during the 6 months preced-
ing July, fell to 6.941 tons during the succeeding 34 working days
from July 6 to September 30, 1937. McIntyre's daily average of
10.40244 tons in the 6 months preceding July dropped to 6.3846 tons
in July, August, and September, covering some 36 working days.
The respondent sought to show at the hearing that Wilburn and
McIntyre were assigned a good working place, although it is not
denied that they were furnished an insufficient number of cars. We
are satisfied, however, from the foregoing facts and record, and
find, that the respondent discriminated against the two employees
in regard to their terms and conditions of employment in order to
lessen their earnings, thereby discouraging membership in the
Union.
Fred Day is a coal loader in York's section. His membership in
the Union and activities were the subject of inquiry by York. Some-
time in June or July, Day was asked by York if he was a union
member, York saying "If you belong to it, I will find it out." Day
replied, "Well, I don't doubt that. I don't doubt that you already
know, as far as that is concerned." Within a few days Day was
transferred from his working place on a 5-car wall, about 50 feet
wide, to a narrow place and "doubled." His former place was given
others. The number of cars thereafter furnished him was inade-
quate. Day's average daily production, which during the 6 months
prior to July was 11.2754 tons, was 5.75 tons during 8 working days
in August and September. Since the exact date when the alleged
discrimination commenced is not known, the month of July cannot
be considered.
York testified that Day was transferred because the roof where
he worked was bad, that he failed to work his new place properly,
and is a careless worker. If the roof were bad it is not explained
why others were put to work there the day after Day was trans-
DECISIONS AND ORDERS 57
ferred. Day was entitled under the mine practice above mentioned
to load coal there as long as feasible. Nor does Day's record of pro-
duction in the 6 months before his transfer support the claim of
incompetency. York's testimony, as has been stated, can be given no
weight, and our opinion in that regard obtains here. The respond-
ent urges further that Day was furnished as many cars as other
coal loaders in the section. This allegation, if true, is without sig-
nificance, for numerous other discriminations of similar character
against members of the Union occurred in York's section during
that period.
We are of the opinion that Day was transferred and doubled for
the purpose of reducing his earnings, that the respondent thereby
discriminated in regard to his terms and conditions of employment
and discouraged membership in the Union.
Ned James and Ernest Flucker work together as coal loaders.
Both belong to the Union. On or about July 15 one Gaston solicited
another employee to join the Union in the presence of James. A
few days later Charles Guthrie accused James of soliciting members,
and upon James' denial thereof threatened : "If I hear you say any
more about that damn Union, I will stop you in the mountain."
Thereafter, for a period of 2 weeks, the coal in James and Flucker's
working place was not shot although it had been cut. As a conse-
quence, the men lost 3 of the 5 remaining workdays in July. On
July 29 Flucker asked Clyde Guthrie to authorize the cashing of a
wage credit slip, in order to save the usual 15-per-cent discount
charged by the respondent for cashing wage slips. Guthrie first.
spoke with the bookkeeper about it, and then asked Flucker for his
full name.23 Upon being told it, Guthrie refused, saying that
"George Titler" would "okay it." Titler was one of the organizers
of the Union in Harlan County.
Witnesses called by the respondent testified that the coal had not
been shot during the 2 weeks because of an alleged failure of James
and Plucker to "rock dust" their working place. Rock dust some-
times is spread over coal to lessen the possibility of coal dust ex-
plosion. It is not clear that the mine rules of the respondent re-
quire rock dusting, and the proof is that such is not the general
practice of its employees. Whether James and Flucker used rock
dust in their work does not appear. As a whole, the witnesses were
vague on material points ; the testimony of one Dickerson related to
undated occurrences.
We are of the opinion, in view of the time relationship between
the failure to shoot the coal and Clyde Guthrie's threat, as well as
the record as a whole, that the failure to shoot the coal for 2 weeks
was not induced by any matter of rock dusting, but by a desire
28 The respondent employs another coal loader named Herman Fluker
58 NATIONAL LABOR RELATIONS BOARD
to warn James and Flucker in regard to the Union through leaving
the two employees without work for that period. This is sup-
ported by the hostility shown Flucker by Clyde Guthrie, above-
mentioned. We find that in not providing the men with work in the
2 weeks, the respondent discriminated in regard to their terms and
conditions of employment, thereby discouraging membership in the
Union. James' average daily production in the 6 months preceding
July was 10.2078 tons. Flucker's is not shown.
The evidence shows that while the respondent's acts of discrimi-
nation were being committed against members of the Union, an
entirely different attitude was being displayed toward members of
the Association. Members of the Association who worked at coal
loading were given favorable working places, and no instance is
shown of Association members being transferred to poorer jobs.
When the respondent allegedly found it necessary to eliminate shifts
or otherwise decrease the working force, members of the Union were
selected to bear the brunt of the change. 'No attempt has been made
by the respondent to disprove or explain its contrasting manner of
treatment of the members of the two organizations.
The respondent argues broadly that the acts, upon which the
charged discriminations as to terms and conditions of employment
rest, are mere incidents arising in the usual course of mine opera-
tions; that working places in mines vary and coal loaders are ex-
pected to take the poor as well as the good places; that it is not
always possible to furnish each coal loader with an adequate number
of cars or to cut and shoot his coal promptly; that on occasion it is
necessary to double coal loaders in order to provide wider employ-
ment until additional working places are made available. While
the respondent's portrayal of conditions of employment of coal load-
ers in the industry may be an accurate statement, it does not explain
the acts of discrimination above discussed. The explanation does not
square with such conduct as the respondent's transfer of employees
from track work or work on the tipple to coal loading:
The chief difficulty with the respondent's contention, however, is
that it presupposes that all coal loaders were accorded the same treat-
ment by the respondent and were subject to the same working con-
ditions. As stated, the record amply establishes otherwise. Only
members of the Union are shown to have sustained the unfavorable
conditions of employment which resulted in marked decreases in
earnings. Their complaints to York and Sharp brought no remedy
of conditions; on the contrary, Sweeney's complaint to Sharp re-
sulted in a vituperative outburst by Sharp. We observe that York's
name appears prominently in the matter. Five of the employees
who suffered adverse working conditions were employed in York's
DECISIONS AND ORDERS 59
section. Sweeney and Perkins were transferred from track work
and the tipple, respectively, to York's section. As set forth above,
it was York who discharged three employees for their activities in
the Union. We equally are satisfied of his complicity in the re-
spondent's campaign to forestall the growth of the Union by dis-
criminations in regard to terms and conditions of employment.
While some doubt might arise, although we have none, in respect to
individual employees, above mentioned, we Cannot escape the con-
clusion upon a collective view of the facts in regard to all the above
employees, that the respondent has engaged in a series of discrimi-
nations against Union members. This was part of a concerted cam-
paign to oppose to the utmost the membership of its employees in
the Union, first by attempting to keep the organizers out of Yancey,
then by causing the formation of the Association as a rival labor
organization, and finally by the discharges of, and other discrimina-
tory acts against, those who belonged to the Union.
Lumus Lundy, Murphy Pierce, Leonard Boswell, Charles Hicks,
Jack Calvin, Henry Lasley, and 0. L. Nelson, and each of them, are
not shown by the record before us to have been discriminated against
by the respondent in regard to any term or condition of employ-
ment. Lundy's average daily earnings did not decrease after he
joined the Union, and the diminution in number of workdays allotted
him coincided with a slack period at the mine and general irregular
employment. Pierce's doubling up on July 3 does not appear at-
tributable to any discrimination but to a normal mine condition,
existing only temporarily and without material loss to him in earn-
ings. His lay-off for 6 working days, because of absence from work
without permission, was the customary penalty imposed by the re-
spondent in such cases. Boswell's receiving a lesser number of cars
is unconnected with his Union membership and appears to have been
caused by a temporary condition at the mine. While Hicks is shown
to have sustained a loss in earnings during the 2 weeks just prior to
the hearing, such loss occurred after the issuance of the complaint,
and accordingly cannot be considered. While there is some evidence
of Calvin, Lasley, and Nelson's having been doubled up and fur-
nished an insufficient number of cars, the proof is too uncertain and
lacking in material detail to establish discrimination. None of these
men sustained any material loss in earnings.
We find that the respondent has not discriminated in regard to
any term or condition of employment of Lundy, Pierce, Boswell,
Hicks, Calvin, Lasley, and Nelson, or of any of them, as charged in
the complaint, as amended.
We have found, heretofore, that the respondent has discriminated
in regard to the terms and conditions of employment of Johnston
60 NATIONAL LABOR RELATIONS BOARD
Sweeney, Elmer Perkins, Nead Patterson , Edgar Baird, Roy Bran-
nin, James Wilburn, Tom McIntyre, Fred Day, Ned James, and
Ernest Flucker, and each of them, thereby discouraging membership
in the Union. We further find that by such acts, and by other acts
herein mentioned , 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
We find that the activities of the respondent set forth in Section
III above , occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. In order to effectuate the policies of the
Act and free the employees of the respondent from such domination
and interference, and the effects thereof, which constitute a continuing
obstacle to the exercise by the employees of rights granted them by
the Act, we shall require the respondent to withdraw all support and
recognition from the Association , to disestablish it as a representative
of the employees for the purpose of dealing with the respondent, and
to cease giving effect to any contract it may have entered into with
said Association in respect to rates of pay, wages ,- hours of employ-
ment, or other conditions of employment . In view of our order in
this regard , we will deny the application of the Association, con-
tained in its answer , for certification of itself as collective bargaining
representative of the respondent's employees.
The respondent will, in addition , be required to cease and desist
from other of its unfair labor practices specified above, and to take
such action hereinafter set forth , essential to effectuate the purposes
and policy of the. Act.
We have found that the respondent has discriminated against cer-
tain of its employees by discharging them because of their Union
membership and activities . We shall , to effectuate the, purposes and
policy of the Act, order the respondent to offer them immediate and
full reinstatement to their former positions , with back pay, displac-
ing, if necessary , any employees since employed therein. With re-
-spect to four of said employees, Charles Gibson, J. Latham, Chester
DECISIONS AND ORDERS 61
Perkins, and Arthur Young, the record shows that their, or some of
their, respective former positions may have been abolished. If, for
that reason, any or all of said employees cannot be reinstated to his
or their former position, we shall, in addition, order the respondent
to offer such employee, or employees respectively, immediate and full
reinstatement to substantially equivalent position or positions, with
the right to be reinstated to or employed in a like position as the
former position, in his or their respective former classification, if and
when a vacancy in such classification occurs, prior to the hiring or
transferring of any other employee to work in such position.
The respondent also has been found to have discriminated against
certain employees in regard to terms and conditions of employment.
With respect to Johnston Sweeney and Elmer Perkins we shall order
the respondent to offer these employees immediate and full reinstate-
ment, with back pay, to their former positions as trackman and on
the tipple, respectively, displacing, if necessary, any employees since
employed in, transferred to, or otherwise assigned said positions.
With respect to Edgar Baird, Roy Brannin, Fred Day, Tom Mc-
Intyre, Nead Patterson, and James Wilburn, we shall require the
respondent to make them, and each of them, whole for any loss of
wages, earnings , or pay they have suffered by reason of said dis-
crimination, by payment to each of a sum of money equal to an
amount computed by multiplying the figure set forth opposite his
name in the column entitled "Number of Tons," appearing in ap-
pendix "A," attached hereto and made part hereof, by the amount
paid per ton as compensation by the respondent to such employee for
coal loading during the period when the respondent discriminated
'against him, said period having heretofore been found and set forth
opposite his name in said appendix "A" in the column entitled
"Period." The figures set forth in said column entitled "Number of
Tons" represent total tonnage loss occasioned by the respondent's dis-
criminatory acts, and were determined in the case of each said em-
ployee in the following manner : There first was computed in the in-
stance ,of each said employee, the average number of tons loaded by
him per day throughout the period from the date 24 of the commence-
ment of the respondent's discrimination against him, to, but not in-
cluding, the date of issuance of the complaint. There then was sub-
tracted, with respect to each said employee, his said respective daily
24 At the hearing the respondent contended that in determining any tonnage loss of
each said employee , comparison should be made between the average daily tonnage produc-
tion of said employee during the 6-month period prior to April 1, 1937, and his daily
average tonnage production during the 6 months subsequent to that date . Counsel for
the Board acquiesced in the use of a 6 -month period as the basis for comparison , provided
that instead of the line of demarcation being April 1, 1937, in all cases, it be in each
instance the date when the respective discrimination began. We think that counsel
stated the proper basis for the comparison.
62 NATIONAL LABOR RELATIONS BOARD
average number of tons, so computed, from the average number of
tons loaded per day by such employee during the 6-month period
preceding the said date of the commencement of discrimination. The
result reached in each case was then multiplied by the number of days
respectively during which the discrimination occurred, said number
appearing opposite the name of each said employee in the column en-
titled "Number of Working Days" in said appendix "A."
With respect to Ernest Flucker and Ned James, we have found
that each lost 3 days of work by virtue of the respondent's discrimina-
tory acts. Each of these employees shall be paid by the respondent
a sum of money equal to an amount computed by multiplying his
average daily loading production during the 6-month period preced-
ing July 1937, by three, and then multiplying the amount so reached
by the amount paid him per ton as compensation for coal loading on
July 13, 1937, the day preceding the last 5 working days in July
when their discrimination occurred.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Mine Workers of America, District 19, and Yancey
Workmen Association, Inc., are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of Yancey Workmen Association, Inc., and
by contributing support to said organization, has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
4. The respondent, by discriminating in regard to the tenure of em-
ployment of Lee Cornett, Charles Gibson, Albert Goins, J. Latham,
E. Mason, Chester Perkins, 0. Perkins, Homer Slover, Clifford Smith-
ers, Leslie Smithers, Blanc Stephens, Ray Walters, Albert Young,
and Arthur Young, and by discriminating in regard to the terms and
conditions of employment of Edgar Baird, Roy Brannin, Fred Day,
Ernest Flucker, Ned James, Tom McIntyre, Nead Patterson, Elmer
Perkins, Johnston Sweeney, and James Wilburn, and thereby dis-
couraging membership in the Union, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
DECISIONS AND ORDERS 63
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not discriminated, and is not discriminating
in regard to hire or tenure of employment, or any term or condition
of employment of Oley Bates, Leonard Boswell, Jack Calvin, David
Davis, Charles Hicks, Henry Lasley, Lumus Lundy, O. L. Nelson,
Charles Osborne, Murphy Pierce, and Earl Shakelforth, within the
meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Harlan Fuel Company, and its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Yancey Workmen Association, Inc., or with the formation
or administration of any other labor organization of its employees,
and from contributing support to said 'Association, or to any other
labor organization of its employees;
(b) 'Discouraging membership in. the Union or any other labor
organization of its employees by discriminating in regard to hire
and tenure of employment or any term or condition of employment,
whether in regard to laying off, discharging, transferring, or
doubling employees, or in assigning them working places, furnish-
ing them necessary facilities for work, or otherwise; .
(c) Interfering in any manner with the right of any agent, repre-
sentative, officer, member, or organizer of the Union, or of any other
labor organization, or with the right of any person, in his entering
upon and traversing the paths, roads, streets, or other ways of in-
gress and egress, public or private, in the town of Yancey, Kentucky,
customarily used by the respondent's employees there residing and
persons engaged in lawful transactions with them, for the purpose
of consulting, conferring or advising with, talking to, meeting, or
assisting, the respondent's, employees or any of them, in regard to
the rights of said employees under the Act to self-organization, to
form, join, or assist labor organizations, to bargain collectively
'through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection;
(d) In any other manner interfering with, restraining or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
64 NATIONAL LABOR RELATIONS BOARD
through 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 in Section 7 of the Act;
(e) Giving effect to any and all contract or contracts it has or
may have entered into with Yancey Workmen Association, Inc., as
the representative of any of its employees in respect to grievances,
labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act;
(a) Withdraw all recognition from Yancey Workmen Associa-
tion, Inc., as the representative of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of
employment, and completely disestablish said Association as such
representative ;
(b) Offer to Lee Cornett, Albert Goins, E. Mason, O. Perkins, Homer
Slover, Clifford Smithers, Leslie Smithers, Blane Stephens, Ray
Walters, and Albert Young immediate and full reinstatement to
their former positions without prejudice to their seniority and other
rights and privileges, displacing, if necessary, any employees since
hired, transferred or otherwise assigned to work in said positions;
(c) Offer to Charles Gibson, J. Latham, Chester Perkins, and
Arthur Young immediate and full reinstatement to their former po-
sitions, without prejudice to their seniority and other rights and
privileges, displacing, if necessary, any employees since hired, trans-
ferred, or otherwise assigned to work in said positions; and if said
positions or any of them have or has been abolished, offer to each
whose position has been so abolished reinstatement to and employment
in a position substantially equivalent to his former position with the
right to be reinstated to a like position as his former in his respective
former classification if and when a, vacancy therein occurs, prior to
the hiring or transferring of any other employee to work in such
position, and without prejudice to his seniority and other rights and
privileges;
(d) Make whole Lee Cornett, Charles Gibson, Albert Goins, J.
Latham, E. Mason, Chester Perkins, O. Perkins, Homer Slover.
Clifford Smithers, Leslie Smithers, Blane Stephens, Ray Walters,
Albert Young, and Arthur Young, for any loss in pay they, or any
of them, may have suffered by reason of their discharge, by pay-
ment to- each of them, respectively, of a sum of money equal to
that which he normally would have earned as wages during the
period from the date of his respective discharge until the date of
the offer of reinstatement, less the amount, if any, which he may
have earned during such period;
DECISIONS AND ORDERS 65
(e) Offer to Johnston Sweeney immediate and full reinstatement
to the position in which he formerly was employed on or about May
30, 1937, in track work, and to Elmer Perkins, to the position in
which he formerly was employed on or about July 6, 1937, on the
tipple, without prejudice to their seniority and other rights and
privileges, displacing, if necessary, any employees since hired or
transferred to work in said position; and make whole said Sweeney
and said Perkins for any loss they may have suffered by reason of
the respondent's discrimination against them in transferring. them
from their former positions to coal loading on said dates, by pay-
ment to each of them, respectively, of a sum of money equal to that
which he normally would have earned as wages in his said former
position during the period from the date of his said transfer to the
date of the offer of reinstatement, less the amount, if any, which
he may have earned during such period;
(f) Make whole the employees listed in appendix "A" for any
loss of pay they may have suffered by reason of the respondent's
discrimination in regard to terms or conditions of employment, by
payment to each of them, respectively, of a sum of money equal to
an amount computed by multiplying the figure set forth opposite
his name in the column entitled "Number of Tons," in said appendix,
by the amount paid per ton as compensation to him for coal loading
during the period when the respondent so discriminated against him,
said period being set forth opposite his name in the column entitled
"Period" in said appendix;
(g) Make whole Ernest Flucker and Ned James for any loss of
pay they may have suffered by reason of the respondent's discrimi-
nation in regard to terms or conditions of employment, by payment
to each of them, respectively, of a sum of money equal to an amount
computed by multiplying his average daily loading production dur-
ing the 6-month period preceding July 1937, by three, and then mul-
tiplying the amount so reached by the amount paid per ton as com-
pensation for coal loading on July 13, 1937;
(h) Post immediately, and keep posted for a period of at least
thirty (30) consecutive days from the date of posting, notices in
conspicuous places in and about the mines, at the tipple, and at
the commissary, stating that the respondent will cease and desist
in the manner set forth in 1 (a), (b), (c), (d), and (e), and that
it will take the affirmative action set forth in 2 (a), (b), (c), (d),
(e), (f), and (g), of this order;
(i) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.
And it is further ordered that the complaint, in so far as it
alleges that the respondent has discriminated in regard to the hire
66 NATIONAL LABOR RELATIONS BOARD
and tenure of employment, or any term or condition of employment
of Oley Bates, Leonard Boswell, Jack Calvin, David Davis, Charles
Hicks, Henry Lasley, Lumus Lundy, O. L. Nelson, Charles Osborne,
Murphy Pierce, and Earl Shakelforth be, and the same hereby is,
dismissed.
And it is further ordered that the application of Yancey Work-
men Association, Inc., for certification of itself as a representative
of the employees of the respondent for the purposes of collective
bargaining be, and the same hereby is, dismissed. -
APPENDIX A
Employees Period
Number of
working Number of
days tons
Edgar Baird ------------------ June 22 to September 30, 1937 ------------------- 38 99.028
Roy Brannin ----------------- June 29 to September 30. 1937 ------------------- 38 125.058
Fred Day------- -------------- August 1 to September 30, 1937------------------ 8 44.2032
Tom McIntyre --------------- July 6 to September 30,1937--------------------- 36 144.6422
Nead Patterson --------------- June 9 to August 9, 1937 ------------------------ 24 29.28
James Wilburn--------------- July 6 to September 30, 1937--------------------- 34 145.4435