Industrial Collieries Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1946

65 N.L.R.B. 683 (N.L.R.B. 1946)

In the Matter Of INDUSTRIAL COLLIERIES CORPORATION and LOCAL UNION
#324, UNITED CLERICAL, TECHNICAL AND SUPERVISORY EMPLOYEES
OF MINING INDUSTRY, DIVISION OF DISTRICT 50, U. M. W. A.
Case No. 6-R-1074.-Decided January 31, 1946
Cravath , Swaine cC Moore , by Mr. C. A. McLain, of New York City,
for the Company.
Messrs. Samuel Krimsly, John McAlpine, and Robert J. Condra,
of Pittsburgh , Pa., for the Union.
Mr. Bernard Goldberg. of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local Union #324, United Clerical,
Technical and Supervisory Employees of Mining Industry, Division
of District 50, U. M. W. A., herein called the Union,' alleging that a
question affecting commerce had arisen concerning the representation
of employees of Industrial Collieries Corporation, Johnstown, Penn-
sylvania, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
W. G. Stuart Sherman, Trial Examiner. The hearing was held at
Johnstown, Pennsylvania, on May 11, 1945. The Company and the
Union appeared and participated.' All parties were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. At the hearing the Com-
pany moved to dismiss the petition on the following grounds: (a)
that the clerks whom the Union seeks to represent as the collective bar-
gitining agent are not "employees" within the meaning of the Act;
(b) that the unit sought by the Union is inappropriate; and (c) that
the Union is not qualified under the Act to represent the employees in
the alleged appropriate unit. For reasons stated hereinafter, the
'Local Union # 324 is sometimes referred to hereinafter as Local 324 and United
Clerical , Technical and Supervisory Employees of Mining Industry , Division of District
50, U. M. W. A., is referred to hereinafter as United.
2 The Company appeared specially to contest the jurisdiction of the Board . However,
it participated fully in the hearing.
65 N. L . R. B., No. 118.
683
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion to dismiss the petition is hereby denied. The Trial Examiner's
rulings made at the hearing, including the rulings sustaining objec-
tions to questions by company counsel designed to elicit the number of
locals of United which admit supervisory employees and the total
number of supervisory employees who are members of United or its
locals, are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Industrial Collieries Corporation is a Delaware corporation en-
gaged as an independent contractor in managing a number of bitumi-
nous coal mines in the Commonwealth of Pennsylvania and the State
of West Virginia. During the year ending October 31, 1944, the mines
managed by the Company produced approximately 8,200,000 net tons
of bituminous coal, of which more than 50 percent was shipped out of
the State where'the coal was mined.
The Company admits, for the purpose of this proceeding only, that
it is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATION INVOLVED
Local Union #324, United Clerical, Technical and Supervisory
Employees of Mining Industry, Division of District 50, United Mine
Workers of America, is a labor organization admitting to membership
employees of the Company.'
3 The Company contends that neither United nor its Local 324 is a labor organization
within the meaning of the Act. In support of its position , the Company relies on the
following arguments : that United has no charter , constitution or bylaws of its own but
operates under those, of its parent organization , United Mine Workers of America ; that
United has no membership on the International Executive Board of United Mine Workers
of America ; that the affairs of United and of its locals are dominated by two appointive
officials and that the incompetency of United as a labor organization necessarily applies
to its subdivision Local 324, although the latter has a charter from United , a separate set
of bylaws , and an elected slate of local officials The objectipns made by the Company are
clearly directed to internal union matters and not to the status of United and its local
as labor organizations within the meaning of the Act . It is clear that the Act prescribes
no form of internal organization as a prerequisite for recognition as a labor organization
Section 2 ( 5) thereof defines a "labor organization" in the broadest terms , declaring that
"The term 'labor organization ' means any organization of any kind, or any agency or
employee representation committee or plan, in 'which employees participate and which
exists for the purpose, in whole or in part , of dealing with employers concerning
grievances , labor disputes, wages , rates of pay , hours of employment , or conditions of
work." Both United and its Local 324 meet the tests of a "labor organization " prescribed
in the statute. Accordingly , we find them to be labor organizations within the meaning
of the Act. See Matter of The Regina Corporation , 57 N L. R. B 4, and eases cited
therein.
INDUSTRIAL COLLIERIES CORPORATION
III. THE QUESTION CONCERNING REPRESENTATION
685
The Company has refused the demand of the Union for recognition
as the collective bargaining representative of the clerical employees
in the accounting division of the Company's general office.
United presently organizes both supervisory and non-supervisory
employees into separate locals. The Union is one of United's locals
which admits only non-supervisory employees into membership. The
Company contends, relying on the Rochester and Pittsburgh Coal
Company case,4 that the Union is not qualified to represent non-super-
visory employees because United is dominated by supervisors. Such
domination, it argues, stems from the fact that locals of supervisors
constitute a majority of all locals of United and supervisory employees
outnumber non-supervisory employees in United's membership. In
the Rochester and Pittsburgh Coal Company case, United petitioned
for a unit of non-supervisory clerical and technical employees. The
Board dismissed the petition principally because the evidence showed
that the supervisors of the company involved were also members of
United, brought pressure repeatedly upon the Company's non-super-
visory employees to join United and dominated that organization,
controlling its policies and practices. The decisive facts in the cited
case which impelled the Board to dismiss United's petition were that
the employer's supervisory personnel had taken an active role in the
organization of the non-supervisory employees and were in control-of
the affairs of the union which sought to represent such non- super-
visory employees.5 The facts in the present proceeding are clearly
distinguishable from those in the Rochester and Pittsburgh Coal
Company case. Here, the -record establishes that the Union was
formed on the initiative of non-supervisory employees without aid,
solicitation, or pressure from the Company's supervisory employees;
it is barren of any evidence that the Company's supervisors are in
any way in control of the Union's affairs, and the Company made no
offer to prove such control.
The Company advanced -a further contention to the effect that the
Union is not competent to act as bargaining agent of its non-super-
visory employees because of its affiliation with and domination by
United, an organization which the Company sought to prove to be
composed predominatly of supervisory, employees. Assuming argu-
endo the correctness of the Company's assertions with respect to the
composition of United's membership, it is clear that both the Union
(i. e., the local) and the United are subdivisions of the United Mine
d Matter of Rochester and Pittsburgh Coal Company , 56 N L R. B. 1760
6 See Matter of The Toledo Stamping and Manufacturing Company, 55 N. L. R. B. 1760;
cf. Matter of Merrimac Mills Company, 63 N. L. R. B. 781 ; Matter of California Packing
Company, 59 N L. R. B. 941.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers of America, and that to whatever degree the Union's affairs
are controlled from above, such control is ultimately vested in the
United Mine workers of America, a labor organization in the mem-
bership of which supervisory employees compose only a tiny fraction.
Under these circumstances, we find that the Union, an organization
composed of non-supervisory employees, is competent to represent
the employees hereinafter found to constitute an appropriate bargain-
ing unit. Inasmuch as the Company's contention is predicated upon
an assertion of facts found to be erroneous, we find it unnecessary to
determine here the validity of the contention.
In its brief the Company has made the claim that the United, as
an affiliate of the United Mine Workers of America, is precluded from
seeking recognition as the bargaining representative of the Company's
accounting division employees under the terms of the existing collec-
tive bargaining contracts between the United Mine Workers of Amer-
ica and the Company. The Company refers to no specific provision
in these contracts by which the United Mine Workers of America has
undertaken not to represent clerical and technical employees; in fact,
there is none. Apparently, the Company relies on the definition of
`.mine worker" contained in the agreements which excludes clerical and
technical employees, and on a clause in the contract which provides
that the management of the mine shall be vested exclusively in the
Company. Assuming, arguendo, that the United Mine Workers con-
tracts with the Company are binding upon the Union, the provisions
referred to do not, in our opinion, constitute an undertaking on the
part of the United Mine Workers that it will not for the term of its
contracts with the Company admit clerical employees into membership
or otherwise seek to organize them." We find that the United Mine
Workers of America collective bargaining contracts with the Company
are not a bar to this proceeding.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
In support of its motion to dismiss the petition, the Company asserts
that the clerical employees involved herein are not "employees" within
s Cf. Matter of Briggs Indiana Corporation, 63 N. L R. B. 1270. The agreements
here recite the scope of the units therein covered; they do not commit the union not to
seek to admit or represent other employees in other units
7 The Field Examiner, reported that the Union submitted 22 aplications for member-
ship cards, of which 19 were dated in June 1944 and 3 were undated and that there
were 30 employees in the appropriate unit.
INDUSTRIAL COLLIERIES CORPORATION 687
the meaning of the Act because of the nature of their work and that,
assuming that they are "employees" a unit comprising them is inappro-
priate because their duties and responsibilities identify them with
management. The Company has agreed with the Union that, in the
event its motion to dismiss the petition is denied, the following unit
is appropriate : all clerical employees in the accounting division of the
Company's general ollice at Johnstown] Pennsylvania, excluding the
chief clerk, the assistant chief clerk, the chief of time, one confidential
clerk, and any other supervisory personnel.
The clerical employees whom the parties have agreed to include
comprise pay-roll clerks, assistant pay-roll clerks, general clerks en-
gaged principally in bond deduction work, and an addressograph oper-
ator. Their salaries range from $85 to $215 per month. All of them
participate, in one form or another, in the preparation of the pay rolls
for miners employed in the various mines managed by the Company.
The only labor relations data to which they have access or of which
they have knowledge pertain to wage rates and wage totals. We find
no merit in the Company's contentions that these clerks are not "em-
ployees" and cannot constitute an appropriate unit. The Board has
repeatedly included pay-roll clerks having duties and responsibilities
similar to those of the clerks involved herein in office and clerical
units." We find that the clerical employees in the Company's account-
ing division are "employees" within the meaning of the Act and may
constitute an appropriate unit.
We find, in accord with the agreement of the parties, that all clerical
employees in the accounting division of the Company's general office
at Johnstown, Pennsylvania, excluding the chief clerk, the assistant
chief clerk, the chief of time, one confidential clerk,9 and any other
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
V. THE DETERMTNA1ION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
8 Matter of Aluminum Company of America. 61 N. L R B 1066 Matte? of Columbia
Steel ii Shafting Company, 60 N. L R B . 301 ; Matter of Micamold Radio Corporation,
58 N L. R B 888 ; Matter of Utah Copper Company, 57 N. L. It. B. 308.
8 Harry Long,
679100-46-vol 65-45
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF, ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and 'pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Industrial Col-
lieries Corporation, Johnstown, Pennsylvania, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Sixth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding any who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether or not they desire to be represented by
Local Union #324, United Clerical, Technical and Supervisory Em-
ployees of Mining Industry, Division of District 50, U. M. W. A., for
the purposes of collective bargaining.