Hayes Coal Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1972

197 N.L.R.B. 1162 (N.L.R.B. 1972)

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hayes Coal Co., Inc. and United Mine Workers of
America and Southern Labor Union , Local No.
290. Case 9-CA-5857
June 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On September 16, 1971, Trial Examiner Alvin
Lieberman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the Charging Party filed
cross-exceptions to the Trial Examiner's Decision
together with a supporting brief, Respondent filed a
motion to strike the Charging Party's cross-excep-
tions together with an answering brief, and the
Charging Party filed an opposition to Respondent's
motion to strike.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the Trial Examiner's
Decision in light of the exceptions and briefs and has
decided to affirm the Trial Examiner's rulings,
findings, and conclusions only to the extent consist-
ent herewith.
The Trial Examiner found that Respondent prema-
turely recognized Southern Labor Union, Local No.
290, herein called the Union, in violation of Section
8(a)(2) of the Act. Based thereon, the Trial Examiner
found that Respondent unlawfully assisted and
supported the Union in further violation of Section
8(a)(2) by deducting union dues and initiation fees.
He found that the collective-bargaining agreement
executed by the parties was invalid, and that by
including and maintaining a union-security provi-
sion, Respondent violated Section 8(a)(3), and
further violated Section 8(a)(2). The Trial Examiner
also found that the invalid bargaining agreement
rendered invalid the "Settlement of Disputes" proce-
dure contained therein, the strikers therefore were
not required to follow the contract and their failure
to do so did not cause the strike to lose its protected
character, and Respondent violated Section 8(a)(1)
of the Act by discharging the strikers because of their
participation in the strike. We do not agree.
The record shows that on May 1, 1970,1 Respon-
dent purchased an operating coal mine which its
I Unless otherwise noted, all events herein occurred during 1970
2 The Union previously had obtained signed cards from Neal and
Crawford, 2 of the 12 who had been employed by Respondent's predecessor
and who worked for Respondent on May 2
3 The "Settlement of Disputes" procedure provides , in pertinent part,
predecessor had operated on a single-shift basis and
which it continued to operate without interruption
on the same basis and with substantially the same
number of employees and job classifications utilized
by its predecessor. Respondent's intent at the time of
purchase was to operate on a one-shift, 10-man basis
for about 6 months while rebuilding, repairing, and
buying machinery. Respondent hoped to expand
thereafter to a two-shift, 20-man operation, which
action Respondent considered necessary in order "to
make [the mine] a going concern."
At the time of purchase, 8 of the 12 employees
employed by Respondent's predecessor were work-
ing at the mine. During the first pay period in May
(May 1-15), 10 of those 12 employees were listed in
Respondent's timebook as Respondent's employees,
and 9 of those 10 worked at some period between
May 1 and May 5. On May 5, the mine was worked
by 4 of those 10 and a newly hired employee. When
these five employees emerged from the mine on May
5, they were met by several of the Union's represent-
atives who obtained signed authorization cards from
all five employees.2 The union representatives and
several of the employees then met with Uslander,
Respondent's secretary, who examined the seven
cards, expressed satisfaction that the Union was a
majority representative, and then negotiated and
executed a 3-year bargaining agreement with the
Union. The agreement contained, inter alra, a union-
security clause, a checkoff provision, a bonus
provision, and a "Settlement of Disputes" provision
which culminated in binding arbitration.3 It also
provided for a daily wage of $25 for certain
classifications and a $20 daily rate for other
classifications. Inasmuch as some, or all, of the
employees then working already were being paid $28
daily, the employees present at the negotiations
objected to the $25 rate, and the parties thereupon
entered into a side agreement , not memorialized in
their contract, to continue paying "the men that were
already there" at the rate of $28 daily, or whatever
they were making. Subsequently, Respondent de-
ducted union dues and checked off union initiation
fees, although the latter was not required contractu-
ally.
Respondent operated on a one-shift basis through
June 30 with a transitory, but average, daily work
force of approximately 10 employees. During this
period, it not only reached but on a number of
occasions exceeded its predecessor's production of
250 tons of coal daily. On July 1, Respondent began
that "Should differences arise between the [Union ) and [Respondent] as to
the meaning and application of the provisions of the Agreement , or should
differences arise about matters not specifically mentioned in this Agree-
ment , or should any trouble of any kind arise at the mine the
grievance procedure would be invoked
197 NLRB No. 181
HAYS COAL CO., INC. 1163
a second shift which, through December, averaged
about 13 employees per pay period and resulted in an
average total work force of 23 or 24. According to
Uslander's undisputed testimony, Respondent re-
vised its original plan to begin a night shift about 6
months after purchase because the price of coal,
which was between $5 and $6 a ton when Respon-
dent acquired its mine on May 1, began rising almost
immediately at the rate of $1 to $1.50 a month until
by July 1 the price was $8.50 or $9 a ton and,
therefore, it was highly advantageous economically
for Respondent to begin a night shift as soon as
possible.
In September, the night-shift employees, at least
some of whom fell within classifications calling for
the $28 daily rate but were being paid at the rate of
$25 daily, learned that some day-shift employees
were receiving the $28 rate. They also learned that
they were not participating in the bonus plan, as were
day-shift employees, and they were further disgrun-
tled because their payroll check stubs did not record
the number of hours worked. Upon being informed
of these complaints by some night-shift employees,
Uslander paid arrearage bonuses to those entitled,
attributing their failure to receive bonuses to a
bookkeeping error, but refused to increase their pay
rates because "they were being paid the minimum
wage that was bargained in the labor contract." On
September 16, following unsuccessful attempts to
adjust these grievances with Uslander and their
refusal to utilize the contractual dispute settlement
procedure as requested by the Union, seven of the
night-shift employees struck. On September 18,
subsequent to their rejection of the Union's request
that they return to work and their establishment of a
picket line, the seven strikers were discharged.
The mine worked only one day in January 1971
and closed the following month because "There's
been no sale for the coal," leaving Respondent with
one employee as of the time of the hearing herein.
Based on his finding that "respondent's work force
consisted of five employees" at the time of recogni-
tion, and his reliance on Respondent's concurrent
intent to increase its work force to about 20 men in
about 6 months, the Trial Examiner concluded that
Respondent prematurely recognized the Union
because the five-man work force existent at the time
of recognition was not representative of the antici-
pated increased work force which Respondent
expanded "to an average of 23" by July 1.
A determination of premature recognition howev-
er, cannot be predicated on whether existent jobs are
temporarily unfilled by reason of quit or discharge,
or on a possibility that future conditions may
warrant an increase in personnel, or on the basis of
an increase in personnel subsequent to the granting
of recognition.4 The correct test is whether, at the
time of recognition, the jobs or job classifications
designated for the operation involved are filled or
substantially filled and the operation is in normal or
substantially normal production.5 Here, the record
clearly shows that Respondent met that test. It
purchased a single-shift operating mine which it
continued to operate without interruption on the
same basis; it intended to, and to a substantial
degree did, maintain its predecessor's work force,
and the mine was engaged in a normal operation
with all or substantially all of the job classifications
necessary for a mine operation.
It is immaterial , therefore, that several of those who
had worked for Respondent's predecessor either did
not work for Respondent at any time or did not work
for Respondent daily prior to its recognition of the
Union and consequently were no longer carried as
part of its work force subsequent to recognition.
Moreover, the record shows that Respondent's work
force at no time consisted of less than nine
employees during any payroll period, and that even
during the work period prior to its recognition of the
Union, the mine was worked by nine employees,
albeit not all these employees worked on the same
day.
Respondent's expectation at the time of its pur-
chase of the mine that future business conditions
would permit it to increase its work force does not
require a different result.6 Even though that expecta-
tion was realized, the record shows that the addition
of a second shift was caused and justified by
economic factors which occurred subsequent to its
recognition of the Union. The uncertainty of those
expectations was demonstrated when economic
factors shifted so rapidly that Respondent was forced
to cease operations by the year's end.
Based on the foregoing, we find, contrary to the
Trial Examiner, that at the time of recognition,
Respondent's employee complement consisted of 10,
and not 5, employees, and that at least 6 of those 10
signed valid cards authorizing the Union to be their
bargaining representative.7 We therefore find that
Respondent did not violate the Act by recognizing
4 Cf. Donald Leasure, 182 NLRB 1011.
5 Cf. Crown Cork & Seal Company, Inc., 182 NLRB 657; Cen-Vi-Ro Pipe
Corporation, 180 NLRB 344; Lianco Container Corporation, 173 NLRB 1444.
6 See, e .g., Crown Cork & Seal Company, supra, Clement-Blythe
Companies, 182 NLRB 502.
' The record shows that there is no dispute regarding the employee status
or the authorization cards signed by N. Woods, T. Lawson, G. Richards, 0.
Lucas, and M. Deal. The Trial Examiner found as to Crawford, however,
that since he worked for Respondent on May 2 only and was classified as an
"extra man ," Crawford was not a "regular" employee on May 5. when
recognition was extended . In our view, the evidence does not establish that
Crawford was not an employee on May 5, or that Respondent did not then
consider him to be one . Moreover , there is no dispute that T. Lawson was
an employee although he . too, was classified as an "extra man." Stated
(Continued)
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union because , at the time of recognition,
Respondent employed a substantial and representa-
tive employee complement . We also find that the
collective-bargaining agreement was valid and there-
fore the strikers were obligated to follow the
settlement of disputes procedure contained therein.
Therefore , Respondent 's discharge of the employees
did not violate Section 8 (a)(3) of the Act.8 Accord-
ingly, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
otherwise , there is no evidence to show that on May 5 Respondent
considered, or treated, "extra man" Crawford differently from "extra man"
Lawson.
8 Cf. Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of
America v. Lucas Flour Co., 369 U.S. 95; J. P. Wetherby Construction Corp.,
182 NLRB 690,697; W. L Mead, Inc., 113 NLRB 1040.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties represented, was held before
me in Summersville, West Virginia, on February 24 and
March 16 and 17, 1971, upon the General Counsel's
complaint,' dated November 30, 1970,2 and respondent's
answer.3 In general the issues litigated were whether
respondent violated Section 8(a)(1), (2), and (3) of the
National Labor Relations Act, as amended (herein, the
Act). Particularly, the principal questions for decision are
as follows:
1. Did respondent violate Section 8(a)(2) of the Act in
any of the following respects:
a. Prematurely recognizing, and entering into a collec-
tive-bargaining agreement with Southern- Labor Union
Local No. 290 (herein, SLU Local)?
b. Checking off union initiation fees and dues from
employees' wages?
2. Did respondent violate Section 8(a)(2) and (3) of the
Act by entering into a collective-bargaining agreement
r During the trial several amendments were made to the complaint.
Thus, paragraph 5 was amended to change the designation of Andrew Fry
from Foreman to President, and the name Fred Schwarz was substituted for
the name Thad Schwartz. The name Hayhurst was substituted for the name
Ahayhurst appearing in paragraphs 8(a) and 8(b). Finally, the name Floyd
Zerkle Bragg was added to the names appearing in paragraphs 8(a) and
8(b).
2 The complaint was issued pursuant to a charge and an amended charge
filed, respectively, on September 23 and November 2, 1970, by United Mine
Workers of America.
3 During the trial paragraph 5 of the answer was amended to admit the
allegations of paragraph 5 of the complaint, as amended.
4 Issued simultaneously herewith is a separate order correcting obvious
inadvertent errors in the stenographic transcript of this proceeding.
(Omitted from publication 1.
5 Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the trial, may not
be discussed in this Decision, each has been carefully weighed and
with SLU Local containing provisions conditioning em-
ployment on union membership?
3. Did respondent violate Section 8(a)(1) or (3) of the
Act by discharging employees because they participated in
a strike?
Upon the entire record,4 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the briefs
submitted,5 I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a West Virginia corporation, is engaged at
Summersville, West Virginia, in mining, processing, and
selling coal . During the year ending on about November
30, 1970, respondent shipped to customers located outside
the State of West Virginia coal valued at more than
$50,000. Accordingly, I find that respondent is engaged in
commerce within the meaning of the Act and that the
assertion of jurisdiction over this matter by the National
Labor Relations Board (herein, the Board) is warranted.
Siemons Mailing Service. 122 NLRB 81, 85.
II. THE LABOR ORGANIZATIONS INVOLVED
Southern Labor Union (herein , SLU) and SLU Local are
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with two matters. The
first is respondent's relationship with SLU Local. The
General Counsel contends6 that in violation of Section
8(a)(2) of the Act, respondent assisted SLU Local by
prematurely recognizing it, by entering into a contract with
it containing union-security provisions,7 and by checking
off SLU Local initiation fees and dues from the wages of
its employees. The second matter involved in this proceed-
ing is respondent's discharge of employees who engaged in
a strike. Viewing the strike as having been protected by the
Act, the General Counsel's position is that the discharges
violated Section 8(a)(1) and (3) of the Act.8
Respondent denies the violations of the Act attributed to
considered.
6 As the contentions of the General Counsel and the charging party are,
in the main, similar, they will be referred to hereinafter as the General
Counsel's contentions unless otherwise noted.
r This, the General Counsel argues. was also violative of Sec. 8(a)(3) of
the Act.
8 Set forth below are the provisions of the sections of the Act mentioned
in the text, insofar as pertinent.
Sec. 8.(a) It shall be an unfair labor practice for an employer-
(I) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7;
(2) to dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization : Provided, That nothing in this
Act, or in any other statute of the United States , shall preclude an
HAYES COAL CO., INC. 1165
it by the General Counsel . Concerning its dealings with
SLU Local, respondent asserts that when its contract with
that union was executed, a representative complement of
employees was working at its mine and that at that time
SLU Local represented a majority of its employees. The
strike , respondent contends , was unprotected by the Act
because those who participated failed to follow the
provisions for the settlement of disputes set forth in its
contract with SLU Local, their bargaining representative.
For this reason , respondent concludes , it was justified in
terminating the strikers ' employment.
B. Preliminary Findings and Conclusions9
1. Respondent's business and employment
complement
On May, 1, 1970,10 by purchase from Loyal Hayes,
respondent became the owner and operator of a coal mine
in Summersville, West Virginia. Respondent continued to
operate this mine until February 1971, when it was shut
down for economic reasons. Although respondent's mine is
not in operation, it does not appear that respondent does
not intend to reopen its mine or that respondent has gone
out of business.
When respondent took over the mine from Hayes it was
worked by a single shift of employees. To increase the
mine's productivity, it was respondent's intention when it
bought the mine to improve its equipment, add employees
to the shift then working, and as Lawrence Uslander,
respondent's secretary, testified, to "expand .... into a
two-shift operation."
Respondent lost little time in effectuating its plan to
make the mine more productive. In this regard, its
contemplated second shift was instituted on June 29.
From the time that shift was established until the end of
1970, respondent's average complement of employees was
23. As to this there is no substantial dispute. There is much
dispute, however, as to the number of workers in
respondent's employ on May 5, the date respondent and
SLU Local entered into their collective-bargaining agree-
ment.lt The General Counsel places that number at 5 and
respondent at 10.
The five people whose employment status on May 5 is in
dispute are Eugene Neal, Kenneth Woods, John Deal,
Estel Crawford, and David Brown.12 None worked for
respondent on May 5. Respondent contends, however, that
all were employees who were absent from its mine on that
employer from making an agreement with a labor organization (not
established, maintained, or assisted by any action defined in section
8(a) of this Act as an unfair labor practice) to require as a condition of
employment membership therein on or after the thirtieth day following
the beginning of such employment or the effective date of such
agreement, whichever is the later, (i) if such labor organization is the
representative of the employees as provided in section 9(a), in the
appropriate collective-bargaining unit covered by such agreement when
made ... .
Sec. 7, relevantly, is as follows:
Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection ... .
9 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent's alleged unfair labor
day. Keeping this contention in mind , the position of each
person concerned will be separately considered.
Eugene Neal: Neal had been employed by Loyal Hayes,
who sold the mine to respondent , as a foreman and as a
rank-and-file electrician . He worked for respondent on
May I and 2. He did not thereafter work regularly for
respondent until September 2. On two isolated occasions
between May 2 and September 2 Neal repaired mine
machinery for respondent. The first time this occurred was
on Sunday, May 24, when no one else worked. The second
instance of this nature took place in the payroll period
ending June 20, during which he worked for respondent for
several hours. In addition, in August, Neal sold mine posts
to respondent.
On May 1, the day respondent began to operate the mine
after purchasing it from Hayes, Uslander, respondent's
secretary, asked Neal to stay on at the mine. Neal refused,
telling Uslander, as Neal testified, that he was going to quit
and "go to work for Hayes." Neal, however, did not
discontinue his employment at the mine until the end of his
shift on the next day.
On May 5 Neal was already working for Hayes and,
except for the odd repair jobs he performed for respondent
as set forth above, continued to do so until September.
Early in that month he applied for a regular full-time job
with respondent. He was hired and worked for about 2
weeks, at the end of which Neal's employment with
respondent was again terminated.
It seems clear from the foregoing that from May 3 until
September Neal was not regularly working for respondent.
Nor can it be said, in view of Neal's express resignation on
May 1, that on May 5, there was a reasonable expectancy
that he would return to work for respondent in the
foreseeable future. Cf. Scobell Chemical Company, Inc., 121
NLRB 1130, 1131, enfd. 267 F.2d 922 (C.A. 2). This being
so, I conclude that Neal cannot be deemed to have been in
respondent's employ on May 5.
Kenneth Woods: Like Neal, Kenneth Woods had also
been employed by Hayes. He did not work for respondent
on May 1, the day on which respondent took over the mine
from Hayes, or on May 2, 3, 4, or 5. He is listed in
respondent's timebook 13 as "gone" on May 6. In this
regard, Uslander, respondent's secretary, stated "at that
point, we considered him quit." Following this, Kenneth
Woods worked for respondent on I day, May 11. On May
18 he was once more listed as "gone" in respondent's
timebook and never again performed any services for
practices and the conclusions to which they may give rise. To the extent that
the contentions of the parties relate specifically to the findings made here,
they will be treated here, although they, as well as the findings , may again
be considered in other contexts.
10 All dates hereinafter mentioned without stating a year fall within 1970.
11 In support of his claim that the contract between respondent and SLU
Local was prematurely entered into and, therefore , violative of Sec. 8(a)(2)
of the Act, the General Counsel argues that on the date of its execution,
respondent's complement of employees was not representative.
12 Uslander . respondent's secretary , testified that Russell Ramsey , a shift
foreman, was among the persons claimed by respondent to have been
employees on May 5 . In apparent abandonment of this claim, respondent,
in its brief , does not mention Ramsey as being in this group. Instead,
respondent, for the first time, included David Brown as having been one of
its employees on May 5 . In view of respondents ' substitution of Brown for
Ramsey, Brown 's status on May 5, but not Ramsey 's. will be considered.
13 C.P. Exh. 1.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent. Under these circumstances, Kenneth Woods
cannot be considered as having been a member of
respondent's employment complement on May 5.
John Deal: In a large measure, John Deal 's situation
parallels Kenneth Woods'. Like Kenneth Woods, John
Deal had also been in Hayes' employ. John Deal worked
for respondent on the day it took possession of the mine
and on the next day, May 2, but never thereafter. He;, too,
was listed in respondent's timebook as "gone" on May 6,
and Uslander testified, as he did with respect to Kenneth
Woods, that "we considered [John Deal] quit and gone
[on] the 6th." My conclusion concerning John Deal's
status on May 5 is the same as it is regarding Kenneth
Woods: namely, that John Deal cannot be held to have
been part of respondent's work force on that day.
Estel Crawford: Crawford also worked for Hayes before
he sold the mine to respondent. After respondent became
the owner of the mine, Crawford worked there only on
May 2 and is listed in respondent's timebook as having
been an "extra man" on that day. Not having worked for
respondent on May 5 and having worked earlier for
respondent for only 1 day, on which occasion he was
classified as an "extra man," a conclusion that Crawford
was a regular employee of respondent on May 5 would be
unwarranted.
David Brown: As is the situation respecting all other
persons in this category, Brown worked for Hayes before
respondent took over the mine's operation. Brown is listed
in respondent's timebook as "gone" during the second half
of May, and no working time is set forth opposite his name
for the days comprising the first half of that month. The
first entry in the book showing Brown's performance of
any work for respondent appears under the date of June 3.
Accordingly, I find that Brown was not in respondent's
employ on May 5.
In sum, therefore, I conclude that on May 5, the critical
date with respect to the alleged prematurity of the contract
between respondent and SLU Local, respondent's work
force consisted of five employees.
2. The contract between respondent and
SLU Local
On May 5, 1970, under circumstances which will be set
forth later in this Decision, respondent and SLU Local
entered into a collective -bargaining contract for a term of
at least 3 years, pursuant to which SLU Local was
recognized as the exclusive bargaining representative of its
employees.14 The pertinent provisions of this agreement
follow:
UNION MEMBERSHIP
It shall be a condition of employment that all
employees of the Employer covered by this agreement
who are members of the Union in good standing on the
effective date of this agreement shall remain members
in good standing and those who are not members on
the effective date of this agreement shall, on the
thirtieth day following the effective date of this
agreement , become and remain members in good
standing in the Union . It shall also be a condition of
employment that all employees covered by this agree-
ment and hired on or after its effective date shall, on
the thirtieth day following the beginning of such
employment become and remain members in good
standing in the union.
CHECKOFF
It is agreed that all monies due the Southern Labor
Union from its members , as dues, shall be checked off
the wages of the employees by the Operator covered by
this contract and shall be remitted promptly by the
Operator to the properly designated officers of the
Southern Labor Union. Such remittances must be
accompanied by an itemized statement showing the
name of each employee and the amount checked off,
with a list of the employees from whom monies have
been collected.
In order that this section may become effective and
operate within the limitations of the "Labor Manage-
ment Relations Act," the Southern Labor Union
hereby agrees to furnish , with all reasonable dispatch,
to the Operator, a written assignment from each
employee so employed, who belongs to the Union.
SETTLEMENT OF DISPUTES
Should differences arise between the Southern Labor
Union and the Operator as to the meaning and
application of the provisions of the Agreement, or
should differences arise about matters not specificially
mentioned in this Agreement , or should any trouble of
any kind arise at the mine, an earnest effort shall be
made to settle such differences immediately:
1. Between the aggrieved party and immediate
superior.
2. Between a mine committeeman and the fore-
man.
3. Between the mine committee and the mine
management.
4. By an arbitration board consisting of three
members, one of whom shall be elected or designated
by the Southern Labor Union and one of whom shall
be designated by the Operator and the other to be
chosen by the two parties or in the event the parties are
unable to agree upon a mutual member within a period
of five days (5) then the two members of the board
named by the parties shall within five days (5) choose
the mutual member . Should the two members be
unable to agree upon a mutual member for any reason,
then either of the parties may request the Federal
Mediation Board to appoint the mutual member. This
may be done by either party immediately upon the
expiration of the time limit set forth heretofore for the
selection of a mutual member. The expenses and
salaries incident to the services of the board members
shall be paid equally by the Operator and the Southern
Labor Union.
Should the aggrieved party be unable to obtain
agreement or settlement of his dispute or difference in
14 G.C. Exh. 2.
HAYES COAL CO., INC. 1167
step one, he shall make a written charge or statement of
the facts causing the dispute and submit same within
three days of the date of the dispute to a mine
committeeman who shall take up the case within 4 days
with the foreman. Should no agreement be reached
between the mine committeeman and the foreman, the
matter shall be taken up and negotiated by the mine
committee and the mine management within five days
after the negotiation provided for in step two. Should
no decision or agreement be reached by the mine
committee and the management of the mine, then the
matter shall be referred to the arbitration board, which
shall be chosen as heretofore set forth, and the said
abitration board shall hear the matter and render a
decision within thirty (30) days. A decision reached at
any state of the proceedings above outlined shall be
binding on both parties hereto and shall not be subject
to reopening by another party, except by mutual
agreement.
RATES OF PAY
All face workers receiving $3.125 per hour shall receive
equal share in ten cents per ton bonus over and above
regular wages on a daily basis
As can be seen, the contract details an elaborate
procedure for settling disputes, culminating in arbitration.
No provision of the agreement, however, expressly prohib-
its strikes by the covered employees.
C. Facts Concerning Respondent's Alleged Unfair
Labor Practices Related to its Recognition and
Contract With SLU Local
On May 5, 1970, during an organizing trip, Lawrence
Viars and two other representatives of SLU appeared at
respondent's mine.15 As Lawrence Uslander, respondent's
secretary, testified, they requested permission "to come on
[respondent's] property" for the purpose of "talk[ing] to
the men who were working for [respondent] about joining
the Union." Uslander permitted them to do so "after.
working hours."
As respondent's employees came out of the mine at the
end of their shift, they were approached by the representa-
tives of SLU who solicited their signatures on cards
15 Respecting the appearance of the SLU representatives at respondent's
mine on May 5, Eugene Neal, who I have found had formerly worked for
respondent, testified , as a witness for the General Counsel, that in his
presence Uslander placed a telephone call and spoke to a man who was
"apparently" Viars on the evening of May 4. After twice saying that he
didn't remember what Uslander said to Viars during this conversation, Neal
finally stated that Uslander asked Viars "to come up there the next
day-evening." Notwithstanding that Neal testified that Loyal Hayes, the
former owner of respondent 's mine, was also present at the time, the
General Counsel did not call Hayes to corroborate Neal's testimony, nor
did the General Counsel state why he did not do so. For his part, Uslander
categorically denied calling Viars on May 4 and denied that he, at any time,
asked Viars or any other representative of SLU "to come and unionize
[respondent's ] mine," and Viars denied receiving such a call. In view of the
mutually corroborative testimony of Uslander and Viars on the one hand
and the uncorroborated testimony of Neal on the other; Neal's uncertainty
that Uslander actually spoke to Viars, saying only that Uslander
"apparently" did so; Neal's inability at the outset to remember what
Uslander said to Viars; and the indecisiveness of Neal's answer when he
finally remembered what Uslander said to Viars, I cannot give any weight to
Neal's testimony concerning this important matter. Accordingly, I do not
designating SLU as their bargaining agent and authorizing
respondent to deduct SLU initiation fees and dues from
their wages.is All five employees then working for
respondent signed the cards.
This accomplished, the'employees and the SLU repre-
sentatives gathered in respondent' s garage . There SLU
Local was created and its officers chosen.
After the formation of SLU Local an SLU representative
announced to Uslander, respondent's secretary, who was in
his office at the time, that SLU represented a majority of
respondent's employees and requested recognition. Follow-
ing this, other representatives of SLU, accompanied by
Norman Woods, an employee who had been selected as
vice president of SLU Local, two other employees, and
Neal, also entered Uslander's office.
When all were present the SLU representatives showed
Uslander seven authorization cards.17 After satisfying
himself that the cards, as Uslander put it, "appeared to be
authentic," 18 he and the SLU representatives turned to
bargaining.
On the question of wages, Uslander and the representa-
tives of SLU settled on a general rate of $25 a day and this
was set forth in the contract which was later signed.
However, inasmuch as employees then working for
respondent were receiving $28 a day, respondent, by way
of a side agreement not memorialized in the contract,
consented to continue paying them $28.
Having agreed upon all the terms of the contract and the
employees' acquiescence in the arrangement pursuant to
which they were to be paid $28 a day, notwithstanding the
contract's stated rate of $25 a day, having been obtained,
the contract was executed by respondent and SLU Local.
The pertinent provisions of this agreement appear in the
preceding section of this Decision.
Findings as to respondent's employment complement on
May 5, 1970, the day the contract was executed, and
following June 29, 1970, the day respondent instituted its
second shift, have already been made. In brief recapitula-
tion, on May 5 respondent's work force consisted of five
employees. After June 29 it averaged 23.
Since entering into its agreement with SLU Local,
respondent, in accordance with the contract, has deducted
union dues from the wages earned by its employees.
Although not required by the contract, respondent has also
find, as suggested on brief by the charging party, that SLU's representatives
came to the mine on May 5 by "prearrangement" with Uslander.
16 Hereinafter these cards will be referred to as authorization cards.
17 In addition to the five which had been signed by respondent's
employees upon emerging from the mine, the cards shown to Uslander
included those signed earlier that day by Neal and Estel Crawford, who, like
Neal, was no longer in respondent's employ on May 5.
18 My findings that the cards were shown to, and examined by, Uslander
are based on testimony given by him and Viars, an SLU representative.
Neal and Woods testified that they did not see Uslander look at any cards.
The failure of Neal and Woods to see Uslander examine the cards does not
warrant a finding that Uslander did not do so. Cf. Corriveau & Routhier
Cement Block, Inc., 171 NLRB No. 113; Corriveau & Routhier Cement Block,
Inc. V. N.LR.B., 410 F.2d 347, 349-350 (C.A. 1). Nor, as the charging party
urges , should Uslander's testimony be rejected because of the version of his
examination of the cards, claimed by the charging party to be somewhat
different, given by Viars. If, in fact, there is a difference between the
testimony given on this point by Uslander and Viars, the difference is not so
material as to require, as the charging party argues on brief, "neither . . . to
be believed on the question of card authentication."
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked off initiation fees payable by its employees to
SLU.
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Unfair Labor Practices Related
to its Recognition and Contract With SLU Local
1. Respondent's employment complement
"[A In employer illegally assists and supports a union by
granting it exclusive recognition before he has a represent-
ative complement [of workers] in his employ." The
Englander Company, Inc., 114 NLRB 1034, 1042, enforce-
ment denied on other grounds 237 F.2d 599 (C.A. 3). The
first, and major, question for consideration is, then,
whether respondent's 5 employees on May 5, 1970, the day
respondent recognized, and contracted with, SLU Local,
was a "representative complement" of its employees after
June 29, when its employment complement averaged 23.
The General Counsel contends, and I agree, that it was
not.19
In contract-bar cases the presence of a representative
complement of employees at the time of recognition is
determined by the application of a formula devised in
General Extrusion Company, Inc., 121 NLRB 1165, 1167.
However, "the Board has established no mathematical
formula nor any per se rule for resolving the issue" in
unfair labor practice cases. Crown Cork & Seal Company,
Inc., 182 NLRB No. 96.
The vice of premature recognition consists of "unjustifi-
ably grant[ing] exclusive recognition to [a union] when [the
actual] working force [does] not represent the anticipated
one [thereby] improperly precommitting the unhired great
majority of employees to a bargaining representative in
whose selection this majority had no voice." Lianco
Container Corporation, 173 NLRB 1444, 1448. It follows
that when the number of employees who choose a
bargaining representative is not large enough to reflect
fairly the wish of an employment complement known soon
to be substantially expanded an employer trenches upon
Section 8(a)(2) of the Act by recognizing the representative
so chosen before the anticipated expansion of the work
force has been accomplished.
Applying the foregoing principles it was held in Donald
Leasure, 182 NLRB No. 149, that a "majority of five
employees could not determine representation for the full
complement which, within a few weeks was three or four
times as large." Accordingly, the Board concluded that, by
recognizing the union selected by these five employees
before his full complement of workers was hired and
entering into a contract with it, their employer violated
Section 8(a)(2) of the Act.
Leasure and the instant case are so close factually that
the Board's decision there is determinative here. Thus,
here, as in Leasure, five employees selected a union as their
collective-bargaining representative and upon its selection
it was accorded recognition- and a collective agreement was
executed. Also here, as in Leasure, the employment
complement covered by the contract was greatly increased.
In Leasure it grew from 5 on March 11, 1968, when the
contract was signed , to 19 on May 15 , 1968, leveling off
thereafter to 17 or 18 . Here the employment complement
expanded from 5 on May 5, 1970, when respondent
entered into its contract with SLU Local, to an average of
23 after the second shift was instituted on June 29.
Therefore , as the Board did in Leasure, I conclude that
by recognizing and entering into a contract with SLU
Local on May 5, 1970, when respondent's employment
complement was not representative of its full work force,
respondent assisted and supported SLU Local in violation
of Section 8(a)(2) of the Act.
2. Respondent's deduction of union dues and
initiation fees from its employees' wages
As earlier set forth, the contract between respondent and
SLU Local provides that "all monies due [SLU] from its
members, as dues, shall be checked off the wages of the
employees by [respondent] . . . and shall be remitted [to
SLU ] promptly." As required by this provision respondent
has deducted SLU dues from the wages of its employees.
Although not required by the contract, respondent has also
checked off SLU initiation fees . By making these deduc-
tions, the General Counsel argues, respondent has further
violated Section 8(a)(2) of the Act.
Much need not be said about this phase of the case. It is
well settled that an employer who, in violation of Section
8(a)(2) of the Act, prematurely recognizes a union
separately violates Section 8(a)(2) by enforcing a provision
in his contract with the union requiring the deduction of
dues from his employees' wages and by checking off
initiation fees . The Englander Company, Inc., 114 NLRB
10348 1042; enforcement denied on other grounds 273
F.2d 599 (C.A. 3).
Accordingly, I conclude that by deducting SLU initia-
tion fees and dues from the wages of its employees,
respondent further assisted and supported SLU Local in
violation of Section 8(a)(2) of the Act.
3. The union-security provisions of the contract
between respondent and SLU Local
Not only does the contract between respondent and SLU
Local make provision for checking off dues, but it also
requires, as a condition of employment, that covered
employees who were already members of SLU Local
continue their membership and that employees not
members of SLU Local on its effective date and those
hired after its effective date become members, respectively,
"on the thirtieth day following the effective date," or "on
the thirtieth day following the beginning of [their]
employment."
Despite their obvious encouragement to employees to
become members of the union which is the beneficiary of
such contract clauses, provisions of this nature do not fall
within the ambit of Section 8(a)(3) of the Act when
included in a contract between an employer and a properly
recognized union. They are, however, specifically pro-
scribed by Section 8(a)(3) when incorporated in a contract
between an employer and a labor organization "estab-
19 1 have already rejected respondent's claim that it had 10 employees on
May 5.
HAYES COAL CO., INC. 1169
lished, maintained, or assisted by any action defined in
Section 8(a) of [the ] Act as an unfair labor practice." 20 An
employer who enters into a collective -bargaining agree-
ment with a union so "established, maintained, or assisted"
not only violates Section 8(a)(3) but also Section 8(a)(2).
Lianco Container Corporation, 173 NLRB 1444, 1447, 1448.
I have found that respondent assisted SLU Local in
violation of Section 8(a)(2) of the Act by prematurely
recognizing it and by checking off SLU initiation fees and
dues from employees' wages. This being so, the union-
security provisions of respondent's contract with SLU
Local fall squarely within the foregoing proscription.
Accordingly, I conclude that by including and maintain-
ing the union-security provisions here under consideration
in its contract with SLU Local respondent violated Section
8(a)(3) of the Act and further assisted SLU Local in
violation of Section 8(a)(2).
E. Facts Concerning Respondent's Alleged Unfair
Labor Practices Related to its Discharge of Strikers
In September 1970 the employees working on the second
shift at respondent's mine learned that some employees on
the first shift were receiving $28 a day, whereas they were
being paid $25 a day.21 It also came to the attention of the
employees on the second shift that the employees on the
first shift were sharing in the 10-cents-per-ton bonus
provided for in the contract between respondent and SLU
Local, whereas they were not.22 Not only were the
employees on the second shift dissatisfied over these
disparities, but they were also upset over the fact that
respondent did not record on the stubs of their paychecks
the number of hours they had worked. In this regard,
Nelson Hypes, a second-shift employee, testified that they
were "being shorted just about every payday."
The second-shift employees discussed these maters
among themselves, with Lawrence Viars, a representative
of SLU, and with Uslander. Uslander refused to adjust
these grievances to their satisfaction. Nevertheless, al-
though Viars suggested that they do so, the second-shift
employees did not avail themselves of the procedures for
settling disputes set forth in the contract between respon-
dent and SLU Local.23 Instead, on September 16, seven
struck.24 Viars, acting on instructions from an officer of
SLU, urged them to go back to work, but they refused.
Picketing began on the following day.
On September 18, six strikers who were then on the
20 When the unfair labor practice involved consists of premature
recognition in violation of Sec. 8(a)(2) of the Act, the violation is
"aggravated where, as here, the agreement that grants recognition also
requires the covered employees as a condition of their employment to join
and pay dues to a labor organization they have not freely chosen" The
Englander Company, Inc., 114 NLRB 1034, 1042, enforcement denied on
other grounds 273 F.2d 599 (C.A. 3).
21 In an earlier section of this Decision findings were made as to the
reason for this. Briefly, this difference in wage rates resulted from a side
agreement reached during the bargaining between respondent and SLU
Local whereby respondent consented to pay $28 a day to those employees
who were then earning that much, notwithstanding that the contract rate
was $25 a day. In September all the employees covered by the side
agreement worked on the first shift.
22 Lawrence Uslander, respondent's secretary, testified that respondent's
failure to pay the bonus to the second-shift employees resulted from a
bookkeeping error.
picket line were arrested on warrants sued out by
respondent charging them with trespassing on its property.
Later that day, after the arrested employees had been
released on bond, the strikers decided to return to work.
Accordingly, they appointed one of their number, Ivan
James , to act as their spokesman for the purpose of
informing respondent of their decision.
As James testified, he told Andrew Fry, respondent's
president, that the striking employees "had agreed to go
back to work and work this [their grievances] out later." At
the same time James also asked Fry to withdraw the
charges against the strikers.
Fry rejected the strikers' offer to return to work and told
James that they were discharged.25 Fry did agree to
withdraw the charges against them, but only if they
discontinued their picketing. This condition was accepted.
Among the strikers discharged on September 18, as set
forth above, were three, Hypes, Boggs, and Floyd Bragg,
who were later reemployed by respondent and worked for
various periods of time .26 Hypes was rehired during the
middle or last part of November and was laid off shortly
after December 25. Boggs was rehired during the latter part
of November and quit about a month later. Floyd Bragg
was rehired on about September 25 and worked for about a
month.27
F. Contentions and Concluding Findings Concerning
Respondent's Unfair Labor Practices Related to its
Dealings With Strikers
Employees who strike "in support of economic demands
[are] clearly engaged in concerted activity for `mutual aid
or protection' within the intendment of Section 7 of the
Act." N.L.R.B. v. United States Cold Storage Corporation,
203 F.2d 924, 927 (C.A. 5), cert. denied 346 U.S. 818. A
corollary to this principle is that an employer's discharge of
employees who engage in such a strike is violative of
Section 8(a)(1). N.L.R.B. v. United States Cold Storage
Corporation, supra; Astro Electronics, Inc., 188 NLRB No.
92; Hilltop Van and Storage Company, 182 NLRB No. 145.
Respondent does not seem to argue that the second-shift
employees who participated in the strike were not engaging
in "concerted activity" for their "mutual aid or protec-
tion." Rather, respondent seeks to escape liability for
discharging the strikers on two grounds, both bottomed on
the premise that the strike was unprotected by Section 7 of
the Act. Respondent first • asserts that the strike was
23 The dispute settlement provisions of the contract appear, in extenso, in
sec. 111, B ,2, of this Decision.
24 The second-shift employees who participated in the strike were Ivan
James, Roy Bragg , Orval Bragg, Everett Junior Hayhurst, Nelson Hypes,
Donald Boggs, and Floyd Bragg.
25 In this regard , the complaint alleges, and the answer admits, that "On
... September 18, 1970. Respondent discharged [the striking employees]
because of their participation in and support of the ... strike."
26 My finding that Hypes, Boggs, and Floyd Bragg were rehired should
not be construed as a finding that they were reinstated to their former jobs
without prejudice to the rights and privileges they enjoyed before their
discharge . As to this, the record is silent. Accordingly . I make no findings at
all regarding this issue . Any dispute concerning this matter can be
determined during the compliance phase of this proceeding.
27 The complaint does not allege that the poststrike employment of these
three persons was terminated under circumstances constituting unfair labor
practices.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unauthorized by the union which represented them. The
second position taken by respondent is that the strikers did
not comply with the dispute settlement provisions set forth
in the contract between it and SLU Local.
The issue of the unsanctioned nature of the strike can be
disposed of quickly. Having been selected, as I have found,
by an unrepresentative complement of respondent's em-
ployees, SLU Local was not duly designated as their
collective-bargaining representative. Cf. Intalco Aluminum
Corporation, 169 NLRB 1034, enfd. in this respect 417 F.2d
36 (C.A. 9). In the absence of such status, the second-shift
employees were not obligated to seek or obtain authoriza-
tion from SLU Local or from SLU, its parent, before
striking. SLU's opposition to the strike did not, therefore,
deprive it of the protection to which it was otherwise
entitled by Section 7 of the Act.
Respondent's second point is that the strike was
unprotected because the strikers did not follow the dispute
settlement procedures of its contract with SLU Local. In
my opinion, this argument is also without merit.
The soundness of respondent's contention, here under
consideration, depends on the validity of the contract. But,
the agreement was "unlawful having been entered into
when [respondent] lacked a representative complement of
employees." Lianco Container Corporation, 173 NLRB
1444, 1447.
As an "unlawful" contract, its provisions, including those
relating to the settlement of disputes, are invalid for all
purposes. Accordingly, the strikers were not required to
follow its dispute settlement procedures, and their failure
to do so did not cause the strike to lose its protected
character. Intalco Aluminum Corporation, 182 NLRB No.
57, enfd. 446 F.2d 1232 (C.A. 9).
Being unpersuaded by respondent's arguments to the
contrary, I find that the strike constituted protected
activity within the meaning of Section 7 of the Act.
Accordingly, I conclude that by discharging the strikers
because they participated in the strike, respondent violated
Section 8(a)(1).28
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's unfair labor practices, as found above,
occurring in connection with its operations set forth in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3)
of the Act, my recommended Order will require respon-
dent to cease and desist therefrom and to take such
28 In view of this , it is unnecessary to determine whether the discharges
were also violative of Sec . 8(a)(3), as alleged in the complaint . San Juan
Lumber Company, 154 NLRB 1153 , 1155, enfd . 367 F.2d 397 (C.A. 9).
29 See , in this connection , In. 26, above.
30 Nothing in my recommended Order shall be construed as requiring
affirmative action as will effectuate the purposes of the
Act.
Insofar as respondent has been found to have violated
Section 8(a)(1) of the Act by discharging employees for
having participated in a protected strike, I will recommend
that upon the reopening of its mine , which was closed for
economic reasons in February 1971, or immediately if the
mine has already been reopened, respondent offer full
reinstatement to the discharged employees to the extent
that those employees have not already been so reinstated.29
Any backpay found to be due to them shall be computed
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and shall include
interest in the amount and manner provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
Concerning respondent' s violations of Section 8(a)(2) of
the Act, I will recommend that respondent withdraw and
withhold recognition from SLU Local and refrain from
dealing with it unless and until it shall have been certified
by the Board as the bargaining representative of respon-
dent's employees. I will also recommend that respondent
cease giving effect to the collective-bargaining agreement
with SLU Local, executed on May 5, 1970, as well as to
any modification thereof or to any superseding agreements
until SLU Local shall have been certified by the Board as
the bargaining representative of the employees con-
cerned.30 I will further recommend that respondent cease
giving effect to any checkoff authorizations in favor of
SLU Local or its parent, SLU. Finally, in this connection, I
will recommend that respondent refund to employees,
except those who signed SLU Local authorization cards
before respondent and SLU Local entered into their
contract ,31 all union dues and initiation fees with interest
at 6 percent computed in the manner set forth in Seafarers
International Union, 138 NLRB 1142-1143.
Respecting the posting of notices, I will recommend that
this be done at respondent's premises in the usual manner
if respondent' s mine is again in operation. If it is not, I will
recommend that respondent mail notices to all employees
who worked for it on, and between, May 5, 1970, and the
date of the mine's closing.
In view of the nature of respondent's unfair labor
practices, including discharges in violation of the Act, my
recommended Order will contain broad cease-and-desist
provisions.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(5) of the Act.
2. SLU and SLU Local are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent's employment complement on May 5,
1970, was not representative of its ultimate full work force.
respondent to vary the wage, hour. and other substantive features of its
relationship with its employees which may have been established by
respondent in performing its collective-bargaining agreement with SLU
Local.
31 Donald Leasure, 182 NLRB No. 149.
HAYES COAL CO., INC. 1171
4. By discharging employees for having participated in
a strike falling within the protection of Section 7 of the Act,
respondent has engaged , and is engaging , in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. By recognizing , and entering into a collective-bar-
gaining agreement with SLU Local on May 5, 1970, when
respondent 's employment complement was not yet repre-
sentative of its ultimate full work force as set forth in
Conclusion of Law 3 , above , respondent has engaged, and
is engaging , in unfair labor practices within the meaning of
Section 8(a)(2) and (1) of the Act.
6. By deducting union initiation fees and dues from the
wages of its employees, notwithstanding respondent's
premature recognition of SLU Local as set forth in
Conclusion of Law 5, above, respondent has engaged, and
is engaging , in unfair labor practices within the meaning of
Section 8(a)(2) and (1) of the Act.
7. By including and maintaining provisions in its
contract with SLU Local conditioning employment upon
membership in SLU Local, notwithstanding respondent's
premature recognition of SLU Local as set forth in
Conclusion of Law 5, above , respondent has engaged, and
is engaging, in unfair labor practices within the meaning of
Section 8(a)(2) and (1) of the Act.
8. By including and maintaining provisions in its
contract with SLU Local conditioning employment upon
membership in SLU Local, thereby encouraging member-
ship in SLU Local, notwithstanding its assistance to SLU
Local in violation of Section 8(a)(2) of the Act as set forth
in Conclusions of Law 5, 6, and 7, above , respondent has
engaged , and is engaging, in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
9. The unfair labor practices engaged in by respondent
as set forth in Conclusions of Law 4, 5, 6, 7 , and 8 , above,
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
[Recommended Order omitted from publication.]