International Union, United Mine Workers of America

National Labor Relations Board - Board Decisions

May 27, 1949

83 N.L.R.B. 916 (N.L.R.B. 1949)

In the Matter Of INTERNATIONAL UNION, UNITED MINE WORKERS OF
AMERICA, AND JOHN L. LEWIS, PRESIDENT OF SAID UNION and JONES
& LAUGHLIN STEEL CORPORATION, BETHLEHEM COLLIERIES CORPORA-
TION, MINDS COAL MINING CORPORATION, REPUBLIC STEEL CORPORA-
TION, , STANDARD FIRE CREEK COAL COMPANY, BUCKEYE COAL
COMPANY, YOUNGSTOWN MINES CORPORATION, OLGA COAL COMPANY,
ARMCO STEEL CORPORATION, WHEELING STEEL CORPORATION, CONSUM-
ERS MINING COMPANY, INLAND STEEL COMPANY, WEIRTON COAL
COMPANY, CRUCIBLE STEEL COMPANY OF AMERICA, H. C. FRICK
COKE COMPANY, UNITED STATES COAL AND COKE COMPANY, GENEVA
STEEL COMPANY, AND TENNESSEE COAL, IRON AND RAILWAY CO.
Case No. 5-CB-14.Decided May 27, 1919
DECISION
AND
ORDER
On January 18, 1949, Trial Examiner William R. Ringer I. issued his
Intermediate Report in the above-entitled proceeding, finding that the
i On April 27, 1949, the Respondents filed a motion to set aside the Intermediate Report
and Recommended Order of Trial Examiner William R. Ringer, to strike the entire record
in this case , and to remand this case for trial de novo before an "Examiner" legally and
properly qualified under the Administrative Procedure Act. In support of their motion,
the Respondents argue that Mr. Ringer was not qualified to act as Trial Examiner in these
proceedings pursuant to Sec. 203 34 of Board Rules and Regulations because, having occu-
pied the position of "Chief Trial Examiner" for the Board on June 11, 1947, the effective
date of Section 11 of the Administrative Procedure Act, and thereafter, he was ineligible
to be appointed or to act as a Hearing Examiner under the Administrative Procedure Act.
We find that the Respondents' motion is wholly without merit, and it is hereby denied.
Apart from the fact that we seriously doubt the Respondents' right to question at this
stage of the proceedings the Trial Examiner's qualification to act in that capacity, we find
that it was the plain intention of Congress not to give retroactive effect to the determina-
tion of the Civil Service Commission with respect to the eligibility of Hearing Examiners
under the Administrative Procedure Act so as to nullify proceedings previously had before
a duly designated Trial Examiner who might later fail to qualify. Matter of Russell Manu-
facturing Co , 82 N L. R. B. 1081, and cases there cited. But, in any event, we note that
Trial Examiner Ringer was duly qualified, certified, and designated as a Hearing Examiner
under applicable law Finally, even assuming, but by no means conceding, that the Report
of Consultants to United States Civil Service Commission (95 Daily Cong. Rec A 1567-
1571 (March 16, 1949) ), relied upon by the Respondents to urge Trial Examiner Ringer's
disqualification, were in any sense final and unreviewable, it is clear from the Report itself
that a person who acted as a "Chief Examiner" on June 11, 1947, or thereafter, was not
thereby disqualified for appointment or for service as an "Examiner" within the meaning of
the Administrative Procedure Act.
83 N. L. R. B., No. 135.
916
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 917
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other alleged unfair
labor practices and recommended that the complaint be dismissed
with respect to such allegations. Thereafter, the Respondents and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs?
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner,3 with the modifications and addi-
tions noted below.
1. We agree with the Trial Examiner that the Respondents, without
complying with prescribed statutory authorization procedures,4 and
in violation of Section 8 (b) (2) of the Act, attempted to cause and
caused the Companies to execute an agreement containing an invalid
union-shop provision and thus to discriminate against employees
within the meaning of Section 8 (a) (3) of the Act. In so doing, we
find that the Respondents did not merely insist upon the Companies'
acceptance of the unauthorized union shop as a condition for con-
cluding an agreement but, contrary to the Respondents' contention,
also resorted to strike action to support their demands.
It is clear, as the Trial Examiner found, that the miners' refusal
to return to work after their vacation constituted a strike to compel
the Companies toagree to the unauthorized union-shop contract," for
which the Respondents were responsible. Although there is no direct
evidence that the Respondents issued a strike call, this is not determi-
native of the question of their responsibility For we nevertheless
find, in the circumstances detailed below, cogent evidence that the
Respondents, though scrupulously avoiding any outward appearance
2 The Respondents waived oral argument previously requested by them, which was sched-
uled for hearing on April 28, 1949. The other parties thereupon joined in the waiver.
8 We specifically adopt the Trial Examiner's holding , contrary to the contentions of the
(}eneral Counsel, that the Respondents have not violated Section 8 (b) (1) (A) of the
amended Act.
4 The proviso to Section 8 (a) (3) of the Act permits the consummation of a union-shop
agreement requiring membership in a labor organization as a condition of employment if,
among other things, "following the most recent election held as provided in Section 9 (e)
the Board shall have certified that at least a majority of the employees eligible to vote in
such election have voted to authorize such labor organization to make such an agreement."
6 Matter of The Great Atlantic and Pacific Tea Company (Amalgamated Meat Cutters,
etc.), 81 N L. R B. 1052.
84434050-vol. 83--59
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of participation in the strike, actually instigated and continued the
strike until the Companies capitulated to their demands and signed
the agreements As we have recently had occasion to observe : 7
A strike call may be given in forthright fashion, or informally
in a manner which is understood by the initiated. A strike may
be as effectively signalled by a simple statement that an employer
has refused to sign a collective bargaining contract when the
union policy is "No contract-no work," as by a direct strike call
from the union leadership to the union members on the failure
to reach agreement on a new contract.
It is true that there is no direct evidence on how the Respondents
called the meat market employees out on strike. But the critical
question is not how the Respondents gave the strike call, but
whether, no matter how, they did give it... .
In attributing authorization for the strike to the Respondents, we
are persuaded by the following facts established by the record: (a)
all the miners in widely scattered areas simultaneously abstained from
returning to work after their vacation because of the Companies'
failure to sign the 1948 union-shop agreement; (b) this strike was in
conformity with the Union's "historic and automatic procedure" ; 8
(c) after the Companies yielded to the Respondents' demands and
signed the 1948 agreement, the Respondent Lewis concededly dis-
patched telegrams to the Respondent Union's district offices advising
them that the agreement was signed and directed them to notify the
miners to report to the first available shift desired by the Companies.
9 The parties , however, by contemporaneous stipulation reserved their rights to test the
validity of the union -shop provision in the contract before the Board and the Courts on
appeal from the Board ' s decision.
7 Matter of The Great Atlantic and Pacific Tea Company , supra.
8In discussing a strike situation in 1944, the then current United Mine Workers Journal,
which was received in evidence , noted : "It was the Policy Committee , by unanimous vote,
that rejected the jurisdiction of the War Labor Board and demanded the resumption of
collective bargaining . The demand was not heeded , and when the thirty-day extension
ended on April 30, the miners laid down their tools . This is our historic and automatic
procedure . For fifty-three years, a contract has been our protection against rapacity and
ill-faith . No contract, no work. No stoppage order ever goes out. If a new agreement
has not been signed before the expiration of the old , the men quit." A 1946 issue of this
Journal , which was also received in evidence , contains this significant statement of the
Respondent Union's policy • "The economic creed of U. M. W. A.-`No contract, no work'-
effectively employed constitutes an educational institution . A `dim-out' is a `knock-out.' ly
We, like the Trial Examiner, find no merit in the Respondents' objections to the receipt
in evidence of the foregoing publications on the ground that the Union's policy in 1944 and
1946 had no relevancy to the Union 's policy at the times material herein . In view of
the absence of evidence that this policy was discontinued after the publication of these
articles , we infer and find that it still obtained when the miners stayed away from work
in July 1948.
In the Report of the Presidential Board of Inquiry concerning the dispute arising out
of the contract negotiations involved herein, which was also received in evidence , reference
is made to the "consequent threat of a stoppage of work in accordance with the 'no
contract , no work' tradition of the industry."
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 919
Within 48 hours the miners were back at work and the mines were in
operation; (d) during the contract negotiations on June 9, 1948, the
Respondents submitted to the coal operators a written proposal to
extend temporarily the 1947 agreement, subject to cancellation on 5
days' notice by either party. This proposal stated that "in order
to reassure the nation and to insure an adequate supply of coal after
July 1" the Union "will ieconmmend that all bituminous coal mines
remain in operation after the end of the vacation period" under the
existing agreement, pending negotiation of a successor contract, pro-
vided the operators complied with certain conditions (emphasis
added) ; and (e) according to the undisputed testimony of Moses,
the Companies' negotiator, which we credit, the Respondent Lewis,
in reply to Moses' request on June 28, 1948, before the expiration of
the 1947 contract, to modify his stand on the union shop, "expressed
his regret at the position the captive mine group had taken, thought
they were very foolish, and pointed out the expensive courrse it might
take." (Emphasis added.)
The Respondents also argue that no violation under Section 8 (b)
(2) of the Act may be found because this provision and its counterpart,
Section 8 (a) (3), were intended to apply only to instances of actual
or attempted discrimination against specific employees or a group of
employees and not to the mere execution of a union-shop agreement .9
We have heretofore rejected similar contentions and do so here,101
Nor do we find any merit in the Respondents' other contention that
statutory authorization to conclude a union-shop agreement was only
a "formalistic detail" not essential to the validity of such an agree-
ment. It is their position that the contract in question was lawful
because practically all of the Companies' miners were members of the
Respondent Union and, in fact, sanctioned the Respondents' union-
shop demands. However, the Act, as legislative history confirms"
contemplates strict compliance with its terms, which require that the
union be certified by the Board under Section 9 (e) (1) as authorized
to execute a union-shop agreement 12 This interpretation accords
with the general rule of statutory construction that the burden of
establishing a claim to privileges contained in a proviso to a statute
e Therefore , the Respondents urge, the Board is without jurisdiction in the premises,
because no employee has complained of discrimination against him.
10 Matter of National Martit2me Union of America ( The Tewas Company, et al.), 78
N. 'L. R. B . 971; Matter of The Great Atlantic and Pacific Tea Company (Amalgamated
Meat Cutters, etc.), 81 N. L. R. B. 1052.
n The Conference Report notes that "permission [for a union shop] ... is granted only
if, upon the most recent election held under later provisions of the conference agreement"
(sec. 9 ( e)), a majority of the employees in the bargaining unit in question eligible to
vote have authorized the union to make such an agreement . H. Conf. Rep. No. 510, 80th
Cong, 1st Sess. (1947), p. 41. (Emphasis added.)
22 Matter of Hager & Sons Hinge Manufacturing Company, 80 N. L . R. B. 163; Matter
of Lykena Hosiery Mills, Inc., 82 N. L. R. B. 981.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rests- on him who asserts it 18 Manifestly, the Respondents do not
rely on compliance with the Act to sustain the legality of their union-
shop demands.
We accordingly find that the Respondents, by attempting to cause
and causing the Companies to execute an unauthorized union-shop
agreement, violated Section 8 (b) (2) of the Act 14
2. We agree with the Trial Examiner that, because the evidence is
insufficient upon which to make the appropriate unit determination,
the record does not establish that the Respondents refused to bargain
with the Companies in an appropriate unit in violation of Section 8
(b) (3) of the Act. Such determination is, as the Trial Examiner
found, a prerequisite under the statute in refusal to bargain cuses15
The parties merely stipulated at the hearing that the Respondent
Union was at all material times the exclusive representative in an
unde fined appropriate unit of all the Companies' employees, with
certain stated exceptions. In so stipulating all the parties, for reasons
best known to themselves, expressly requested the Board not to make
"a finding of the specific bargaining unit." Such an agreement of the
parties cannot serve to dispense with the statutory requirement that
this Board make a specific unit determination, basic as that is to a find-
ing of a refusal to bargain and the remedial order customarily issued
thereon. To hold otherwise would be, moreover, to abdicate to the
parties a function entrusted solely to the Board.16 In,sum, our ruJng
is the logical consequence of the parties' stipulation.
Nor, in the face of this joint request of the parties, can we in good
conscience, or perhaps even lawfully, ferret through the record for
evidence of an appropriate unit. But in any event, the evidence is in-
complete upon which to make an appropriate unit finding. Presum-
ably in reliance on their stipulation, the parties refrained from litigat-
ss Federal Trade Commission v. Morton Salt Co., 334 U . S. 37, 44-45.
14 The Respondents also challenge the constitutionality of Section 8 (a) (3) (ii) and
8 (b) (2) of the Act. Apart from the fact that the Board assumes the constitutionality of
the Act in the absence of a contrary judicial determination , the Supreme Court's recent
decisions upholding the validity of State legislation which absolutely prohibited discrimina-
tion in employment on the basis of union membership (Lincoln Federal Labor Union v.
Northwestern Iron & Metal Co., et one., 69 S. Ct. 251 ; American Federation of Labor v.
American Sash & Door Co., 69 S. Ct. 258 , a fortiori, support the constitutionality of the
provisions of the Act which sanction union-shop agreements under specified conditions.
a< Section 8 (b) (3), read in conjunction with Section 9 (a) as the Act prescribes, imposes
a duty to bargain on a labor organization only if it is the representative "designated or
selected for the purposes of collective bargaining by the majority of the employees in a unit
appropriate for such purposes ." Plainly, these provisions contemplate a definitive appro-
priate unit finding, so that not only majority representation may be ascertained , but also so
that the obligation of the allegedly recalcitrant party to bargain for a specified group of
employees may be positively fixed. Our consistent holdings in both employer and union
refusal to bargain cases clearly indicate that a specific unit determination is essential to a
finding of a violation under Sections 8 (a) (5) and 8 (b) (3).
1e Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146, 152. Cf. Matter of Water-
front Employers Ass'n, 71 N. L. R. B. 80, 111.
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 921
ing the unit issue . Whatever evidence there is in the record relevant
to it relates to bargaining history, and was adduced as background
material on another question. For aught that appears, had the parties
fully litigated the unit issue, a unit not now apparent, different from
either the alternative captive-mine multiple-employer or single-em-
ployer unit proposed by our dissenting colleague, might conceivably be
found appropriate 17 Under these circumstances, we may neither
disregard the wishes of the parties embodied in the stipulation nor
make a unit finding on an unlitigated issue.
Moreover, we believe that it would be unwise, even if possible, for
the Board to go out of its way, on this inadequate record, to define
an appropriate bargaining unit in this essential industry in which
the parties themselves have not;, yet fixed the pattern of bargaining.
Indeed, the General Counsel recognized this fact in urging the Board
to adopt the parties' joint request not to make a Specific unit finding
because of "considerations stemming from the complex and intricate
bargaining patterns which have existed in this industry over a
period of years." is
Finally, unlike our dissenting colleague, we do not believe that a
finding in the alternative, that either a multiple-employer unit con-
sisting of the captive-mine group or a single-employer unit is appro-
priate for collective bargaining purposes, would feasibly lend itself to
compliance or enforcement.19 Apart from the fact that the Act im-
poses on unions and employers alike a duty to bargain collectively
in an appropriate unit, an order requiring the recalcitrant party to
bargain collectively in one of several alternative units is too vague and
indefinite a mandate by which to fix the bargaining obligation of the
parties. It invites disagreement among the parties and makes vol-
untary compliance difficult, thereby compelling the Board to seek
enforcement only through litigation. But such an order, once before
the Courts, would be difficult to defend for want of a full record and
definitive findings by the Board on the unit issue.
17 Our dissenting colleague recognizes that possibly an industry -wide unit , including
not only the employees of the captive -mine group involved herein but also the commercial
operators , might be the "most appropriate unit." But he concludes that the lack of evi-
dence on this point is not an adequate reason for dismissing the Section 8 (b) (3) alle-
gations of the complaint . However , it is precisely this lack of evidence , which we must
attribute to the parties' reliance on their stipulation, that impels us to refrain from
making an appropriate unit finding on this record. Nor is it material , as our dissenting
colleague believes , that in finding a smaller than optimum unit here, the Board is not pre-
cluded from finding a larger unit in the future. Here , bargaining admittedly has already
been conducted on a much broader basis than the alternative units proposed in the dissent.
11 Statement of Attorneys for the General Counsel, p. 3.
19 Our dissenting colleague 's reliance on craft severance cases in support of an alternative
unit finding is misplaced . For it is clear that the Board in those cases merely sets up voting
groups, deferring the final unit determination until after the election , at which time a unit
determination , not an alternative unit determination , is made.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the foregoing reasons, and also because the Board's unanimous
Section 8 (b) (2) finding herein does determine the basic issues of the
legality of the Respondents' union-shop demands, we shall dismiss the
refusal to bargain allegations of the complaint.
ORDER
• , Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, International
Union, United Mine Workers of America, and its officers, representa-
tives, and agents, including the Respondent, John L. Lewis, its presi-
dent, shall:
1. Cease and desist from :
(a) Requiring, instructing, or inducing its representatives to require
that the Companies execute contracts which make membership in
International Union, United Mine Workers of America, a condition
of employment, except in accordance with the provisos in Section 8 (a)
(3) of the Act;
(b) Directing, instigating, or encouraging employees to engage in
a strike, or approving or ratifying strike action taken by employees,
for the purpose of requiring that the Companies execute contracts
which make membership in International Union, United Mine Workers
of America, a condition of employment, except in accordance with the
provisos in Section 8 (a) (3) of the Act;
(c) Causing or attempting to cause the Companies to execute con-
tracts which make membership in International Union, United Mine
Workers of America, a condition of employment, except in accordance
with the provisos in Section 8 (a) (3) of the Act, or in any other
manner to discriminate against employees in violation of Section 8
(a) (3) of the Act;
(d) In any manner maintaining, enforcing, or giving effect to the
union-shop clause in its contract with the Companies so long as the
said clause does not conform with the provisos in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its District Offices exercising jurisdiction over the Com-
panies' employees involved herein, copies of the notice attached hereto
'as an Appendix.20 Copies of said notice, to be furnished by the
20 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER" the words, "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 923
Regional Director for the Fifth Region, shall, after being duly signed
by an official representative of the Respondent International Union,
United Mine Workers of America, and individually by the Respondent
Lewis, be posted by the Respondents immediately upon receipt thereof
and maintained for a period of sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or covered
by any other material ;
(b) Mail to the Regional Director for the Fifth Region signed
copies of the notice, attached hereto as an Appendix, for posting, the
individual Companies willing, on the bulletin boards at the mines and
all other places where notices to employees are customarily posted.
The notices shall be posted on the bulletin boards of the individual
Companies and maintained thereon for a period of sixty (60) consecu-
tive days thereafter. Copies of said notice, to be furnished by the
Regional Director for the Fifth Region, shall, after being duly signed
by the Respondents as provided in paragraph 2 (a) of this Order, be
forthwith returned to the Regional Director for such posting;
(c) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and if,
hereby is, dismissed insofar as it alleges that the Respondents engaged
in unfair labor practices in violation of Section 8 (b) (1) (A) and 8
(b) (3) of the Act.
MEMBER REYNOLDS, concurring in part and dissenting in part:
I concur in the majority decision except insofar as it dismisses the
allegation in the complaint that the Respondents violated Section
8 (b) (3) of the Act.
It is undisputed that the Respondents without first complying with
the union-shop authorization procedures of Section 9 (e) (1) of the
Act refused to conclude any agreement with the Companies unless the
agreement contained an immediately effective union-shop clause.
Such insistence upon the inclusion of a union-shop clause we have re-
peatedly held violates the statutory duty to bargain.21 Yet here the
Board refuses to find that the Respondents by such conduct violated
the Act, upon the grounds (1) that it is a statutory prerequisite for
21 Matter of National Marotime Union of America ( The Texas Company, at al.), 78
N. L. R. B . 971; Matter of The Great Atlantic and Pacific Tea Company (Amalgamated
Meat Cutters ), 81 N. L. R. B. 1052; Matter of American Radio Association ( Committee for
Companies and Agents ), 82 N. L . R. B. 1344; Matter of National Maritime Union of
America ( Committee for Companies and Agents ), 82 N. L. R. B. 1365.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding a violation of 8 (b) (3) that there be a specific appropriate
unit determination made; and (2) that there is insufficient evidence
in the record in this case upon which to make such an appropriate unit
determination.
Admittedly, the Board has in the past in refusal to bargain cases
uniformly specified a unit appropriate for purposes of collective bar-
gaining. However, in those cases there has been no declaration that
as a matter of law the statute requires that a definite unit determina-
tion be made in all such cases. The majority opinion would now so
hold: An analysis of the pertinent statutory provisions does not, in
my opinion, support that position. Section 8 (b) (3) states that it
shall be an unfair labor practice for a labor organization "to refuse to
bargain collectively with an employer, provided it is the representa-
tive of his employees subject to the provisions of Section 9 (a)." Sec-
tion 9 (a) states in part that "representatives designated or selected
for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be 'the exclusive
representatives of all the employees in such unit . . ." It appears,
therefore, that Section 9 (a), insofar as it is here material, imposes
two prerequisites for a finding of a refusal to bargain, (1) that the
bargaining representatives must be designated by the majority of the
employees and (2) that these employees must be "in a unit appro-
priate" for purposes of collective bargaining. In my opinion, the
facts of this case demonstrate that these prerequisites have been met,
for all the parties herein entered into a stipulation that the Respond-
ent Union "was on April 30, 1948, and at all times thereafter has been
the exclusive representative for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act of all employees of
the companies . . . in a unit appropriate for the purposes of collective
bargaining." Accordingly, there is in my view basis in law as well as
in fact for a finding of a violation of 8 (b) (3) in this case.
My colleagues, however, apparently hold that the statutory lan-
guage, "in a unit appropriate," should be construed as requiring the
Board in a refusal to bargain case to make a specific unit determina-
tion. The imposition of this requirement in all such cases reveals a
fundamental misconception of the basic purposes of making a defini-
tive unit determination. The basic purposes are to ascertain whether
or not a majority of employees having substantially identical interests
has designated a bargaining agent for the furtherance of their joint
interests.22 In the present case there is no dispute that the employees
for whom the Union is the recognized representative have substan-
" Matter of Carlisle d Jacquelin, 55 N. L. R. B. 678, 681.
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 925
tially identical interests, and that a majority has designated the Re-
spondent Union as their bargaining agent. Where, as here, these
points have been ascertained without resort to the Board's processes,
it is clear that the requirement that a specific unit determination be
made in all cases imposes a superfluous function on this Board. To the
extent that the exercise of this superfluous function negates, as here,
the promotion of collective bargaining, a basic policy of the Act, I be-
lieve that the majority's insistence upon its exercise pursuant to a
strained construction 23 of Section 9 (a) is unfortunate,' to say the
least.
The objection is raised that a failure to make a specific unit finding
would undermine the basis for compliance or enforcement on account
of indefiniteness. As this same objection is also made to the suggestion
that alternative unit findings be made, it will be discussed as it arises
in connection with the following exposition of my further disagree-
ment with the majority opinion. This further disagreement is not
directed to the matter of statutory construction, for even if I now
consider myself bound, as I shall in the future, by the results of the
majority's statutory interpretation, I could not subscribe to the dis-
missal of so much of the complaint as alleges a violation of Section 8
(b) (3) on the ground that there is insufficient evidence upon which to
make a unit finding.
In my opinion the record in this case indicates that the allegation
in the complaint that either of two units may be found appropriate
for the employees of each of the Companies herein can be sustained.
The evidence conclusively establishes the feasibility of a multiple-
employer unit for all the employees of all the Companies involved.
All the Companies indicated by their joint refusal in June 1948 to
sign the contract negotiated on an industry-wide basis and signed by
all bituminous operators but the Companies herein, that they desired
to depart from the customary industry-wide bargaining pattern. This
m It is a well recognized rule of statutory construction that "the cardinal purpose or
intent of the whole act shall control, and that all the parts be interpreted as subsidiary
and harmonious." 2 Sutherland , Statutory Construction 338 (3d ed., Horack, 1943).
24 In reaching the above conclusion , I am not unaware of the mandatory language of
Section 9 ( b). Section 9 (b) states in part that the "Board shall decide in each case
whether . . . the unit appropriate for purposes of collective bargaining shall be the em-
ployer unit, craft unit, plant unit, or subdivision thereof." The short answer to the con-
tention that this language of Section 9 (b) must be read in conjunction with Section 9 (a)
in refusal to bargain cases lies in the fact that Section 9 ( b) outlines functions of the
Board as they relate to cases in which a question concerning representation exists, and
since the paramount issue in such cases is the establishment of a definitive unit whereby
majority representation may be readily ascertained , the mandatory language of that Sec-
tion should logically be limited to such cases. The present case presents no auestion
concerning representation for our determination.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct of the Companies in pursuing a separate course of action
affords sufficient basis to infer a desire on the part of the Companies
not to be bound by the group action of the commercial operators in the
industry, and therefore warrants a finding that a multiple-employer
unit confined to the Companies herein is appropriate.25 On the other
hand, Board precedent indicates the alternate feasibility of a single-
employer unit for the employees of any Company herein should the
separate ^sourse of conduct of the Companies in severing themselves
from the industry-wide bargaining pattern be deemed a desire on the
part of individual Companies to be considered, "at least for the time
being," as separate entities for purposes of collective bargaining.26
That the Union is the recognized majority representative in such
alternate units is beyond question for the record establishes this fact,
and, as pointed out above, the stipulation of all the parties involved
in this proceeding admits it. By virtue of that stipulation and by
virtue of the separate course of action of the Companies, I am of the
opinion that the appropriateness of either a multiple-employer or
single-employer units cannot be validly questioned in this proceeding 27
While it is possible, as intimated by the Trial Examiner, that an
industry-wide unit, including not only the 18 Companies herein but
also the commercial operators, might be the most appropriate unit,
the absence of evidence on this point is not an adequate reason for dis-
missing the 8 (b) (3) allegation of the complaint. The Board has
never stated that the optimum unit is the only unit appropriate for
purposes of collective bargaining.2$ The Supreme Court of the United
States also has noted that flexibility is essential in the exercise of the
Board's power to make unit determinations.29 Moreover, where as
here the lawfulness of a party's conduct is being weighed in the light
of prior behavior, it would appear to be only logical to dispense with
ascertainment of the best possible unit, as is generally deemed requisite
26 See Matter of Associated Shoe Industries of Southeastern Massachusetts, Inc., et at.,
81 N. L. R. B. 224 ; and Matter of Air Conditioning Company of Southern California , et ai.,
81 N. L . R. B. 946.
29 See Matter of The Great Atlantic 4 Pacific Tea Company, supra. In view of the
Board's affirmation in this and other recent cases of its policy of permitting an employer
to segregate itself from participation in multiple -employer bargaining upon the sole
ground that it had affirmatively evinced a desire to pursue a separate course of action
with respect to its labor relations , I find it difficult to understand the majority 's concern
over alleged "abdication" by the Board in this instance of its normal statutory duty to
determine the appropriate bargaining unit.
24 Cf. Matter of Cape County Milling Company, 49 N. L. R. B. 226, 242.
29 See Matter of the Prudential Insurance Company of America, 50 N. L. R. B . 689, 696;
56 N. L R . B 1847 and 1859; enforced , 154 F. ( 2d) 385 ( C. A. 6). Also, in craft sever-
ance cases too numerous to list, the Board consistently finds that craft employees may
properly be represented in either a craft unit or in a broader unit with other employees.
29 N. L. R. B. v. Hearst Publications, Incorporated, 322 U. S. 111 , 134; and Packard
Motor Car Company v . N. L. R. B., 330 U. S. 485, 491.
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 927
in a representation proceeding.80 Accordingly, since the suggested
alternative multiple-employer and single-employer units are not con-
trary to the functional and logical tests required of appropriate units
by Board precedent '311 either unit may be appropriate, notwithstand-
ing the fact that a broader unit may be more appropriate. Clearly, a
present alternate finding of a multiple-employer or single-employer
units confined to the Companies here involved would not preclude find-
ing appropriate a larger unit in the future should the Board be pre-
sented with a question concerning representation S2
The principal objection to a finding of alternate units has been
alluded to above. It apparently arises from a concern, as expressed
by the Trial Examiner, that "a finding of an uncertain unit or alterna-
tive units would afford no basis for compliance or enforcement on
account of indefiniteness as to who would be bargained for." I per-
ceive no such difficulty.33 The remedial order which would issue would
require the Respondents to cease and desist from refusing to bargain
with the Companies; affirmatively, the order would require the Re-
spondents to bargain with the Companies upon request 34 in an appro-
priate unit, if no specific unit finding is made, or in either the multiple-
employer or single-employer units, if alternate unit findings are made.
Whether none or an alternative unit determination is made, in either
event the request of the Companies, either individually or collectively,
of necessity would have to be made on the basis of one or the other of
the only two types of units possible of being found appropriate in
this proceeding.. If a refusal to bargain follows such a request, the
unit in which the refusal occurs is therefore clear. Should the Board
then institute enforcement proceedings to require compliance with this
order, the petition to the court for enforcement would then specify
the precise unit in which the refusal had occurred. Thus the petition
for enforcement would be as definitive as a petition for enforcement
of any order to bargain can be. It is no argument at all to say that
"This is especially justified here since the admission in evidence of the unit stipula-
tion was apparently considered conclusive of the unit issue by all concerned . Thereafter
the parties devoted their energies to the litigation of the basic issue, namely the conduct
alleged in support of the unfair labor practices , which the parties clearly contemplated
would be adjudicated by the Board.
31 See cases in footnote 25, supra.
12 N. L. R. B. v. Prudential Insurance Company of America, supra.
11 It should be noted that in another proceeding involving the Respondent Union herein,
a District Court injunction ordering the Union to bargain upon request "in a unit or units
appropriate" was not contested as being indefinite. United States District Court for the
District of Columbia , June 4, 1948, Civil Order No. 2141-48 ; published, 22 L. R. R. M.
2164 . 2169 Upon compliance by the Union, the injunction was dissolved by order of
the Court, dated November 10, 1948.
84 The respondents would be required to bargain "so long as [the Union] is the exclusive
representative of these employees " See Matter of American Radio Association ( Commit-
tee for Compunses and Agents ), supra.
928 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
the Respondents may in court contest the appropriateness of the unit
specified, for the Board's unit findings are always contestable in en-
forcement proceedings 35
APPENDIX
NOTICE TO ALL OFFICERS , REPRESENTATIVES , AGENTS , AND MEMBERS OF
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA
-Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT require, instruct, or induce our Iepresentatives to
require that the companies named below execute contracts which
make membership in INTERNATIONAL UNION, UNITED MINE WORK-
ERS OF AMERICA, a condition of employment, except in accordance
with the provisos in Section 8 (a) (3) of the aforesaid Act.
Jones & Laughlin Steel Corporation, Bethlehem Collieries Cor-
poration, Minds Coal Mining Corporation, Republic Steel Cor-
poration, Standard Fire Creek Coal Company, Buckeye Coal
Company, Youngstown Mines Corporation, Olga Coal Company,
Armco Steel Corporation, Wheeling Steel Corporation, Con-
sumers Mining Company, Inland Steel Company, Weirton Coal
Company, Crucible Steel Company of America, H. C. Frick Coke
Company, United States Coal and Coke Company, Geneva Steel
Company, and Tennessee Coal, Iron and Railway Co.
WE WILL NOT direct, instigate, or encourage employees to engage
in a strike, or approve or ratify strike action taken by employees,
for the purpose of requiring that the above-named companies
execute contracts which make membership in INTERNATIONAL
UNION, UNITED MINE WORKERS OF AMERICA, a condition of em-
ployment, except in accordance with the provisos in Section 8
(a) (3) of the aforesaid Act.
WE WILL NOT cause or attempt to cause the above-named com-
panies to execute contracts which make membership in INTERNA-
TIONAL UNION, UNITED MINE WORKERS OF AMERICA, a condition
of employment, except in accordance with the provisos in Section
8 (a) (3) of the aforesaid Act, or in any other manner to dis-
criminate against employees in violation of Section 8 (a) (3) of
aforesaid Act.
WE WILL NOT in any manner maintain, enforce, or give effect to
the union-shop clause in our contract with the above-named com-
35 American Federation of Labor v. N. L. R. B., 308 U. S. 401; N. L. R. B . V. Prudential
Insurance Company of America, supra ; and cases cited in footnote 29, supra.
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 929
panies so long as that clause does not conform with the provisos in
Section 8 ( a) (3) of the aforesaid Act.
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA,
By ----------------------------------------
Title of Officer
JOHN L. LEwIS, President.
Dated---------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. Sidney J. Barbara and David C. Sachs, for the General Counsel, Na-
tional Labor Relations Board.
Messrs. Welly K. Hopkins and Harrison Combs, of Washington, D. C., and Mr.
M. E. Boiarsky, of Charleston, W. Va., for International Union, United Mine
Workers of America, and John L. Lewis, President of said Union.
Mr. John C. Gall, of Washington, D. C., for the charging Companies.
STATEMENT OF THE CASE
Upon a charge filed on July 2, 1948, by John C. Gall on behalf of Jones & Laugh-
lin Steel Corporation and the 17 other companies listed in the caption above,
herein called the Companies, the General Counsel of the National Labor Relations
Board 1 by the Acting Regional Director of the Fifth Region of the National Labor
Relations Board, issued a complaint dated July 8, 1948, against International
Union, United Mine Workers of America, and John L. Lewis, President of said
Union, called herein respectively the Union and Lewis, alleging that the Respond-
ents had engaged in and were engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (b) (1) (A), (b) (2), and (b) (3) and
Section 2 (6) and (7) of the Labor Management Relations Act of 1947,2 herein
called the Act. Copies of the complaint, with the charge attached, and notice
of hearing thereon were duly served upon the Respondents and the Companies'
representative who had filed the charge.
On July 21, 1948, the Respondents filed a pleading combining a motion to dis-
miss the complaint and an answer to the complaint. At the opening of the
hearing the General Counsel moved to amend the complaint by adding addi-
tional paragraphs. There were no objections and the motion to amend was
granted. The Respondents asked leave to amend their motion to dismiss and
their answer to extend them to apply to the amended complaint, and in addi-
tion stated orally on the record additional averments in answer to the additional
paragraphs in the amended complaint. Without objection said motions of the
Respondent were granted.
With respect to unfair labor practices, the complaint as amended, after allega-
tions of ownership and operation by the Companies of bituminous coal mines
1 The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel , and the National Labor Relations Board as the Board.
x The National Labor Relations Act, as amended by Public Law 101, Chapter 120, 80th
Cong ., First Sess.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in interstate commerce, existence of the Union as a labor organization, and ma-
jority representation by the Union in an appropriate unit, alleges unfair labor
practices by the Respondent as having occurred and as occurring, in substance as
follows :
(1) In violation of Section 8 (b) (3) of the Act, refusing to bargain by refusing
to enter into any collective bargaining contract with the Companies, or any of
them, unless such contract should contain a union-shop provision, although the
Union has not been certified by the Board as authorized by a majority of the
employees (in accordance with the provisions of Section 9 (e) of the Act) to
enter into such an agreement;
(2) In violation of Section 8 (b) (2) of the Act, attempting to cause the Com-
panies and each of them to discriminate against their employees, by seeking to
compel the Companies to enter into a bargaining contract containing such union-
shop provision and by insisting thereon ;
(3) In violation of Section 8 (b) (2) of the Act, causing and attempting to
cause the Companies and each of them to discriminate against their employees,
by compelling the Companies and each of them to enter into a bargaining con-
tract containing such union-shop provision, without compliance with Section 9
{e) of the Act, and by maintaining such provision in force ;
(4) In violation of Section 8 (b) (1) (A) of the Act, restraining and coercing
employees of the Companies, by the above-mentioned acts.
The answer of the Respondents, as amended at the hearing, admitted certain
of the allegations of the complaint, denied the commission of any unfair labor
practices, averred that the Union at all times bargained in good faith, and averred
that the employees of the companies desired and approved the execution of the
-union-shop contract.
Ruling on the motion to dismiss was reserved at the hearing and is now denied
for the reasons hereinafter set out in this report. '
Pursuant to notice, a hearing was held in Washington, D. C., on July 22,
23, and 26, 1948, before William R. Ringer, the undersigned Trial Examiner
duly designated to conduct such hearing. Each party was represented by counsel
and participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues
was afforded all parties. Counsel for the General Counsel and for the Respond-
ents have each filed briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
The 18 companies involved in this case own and operate coal mines located
variously in the States of Pennsylvania, West Virginia, Kentucky, Alabama,
Ohio, and Utah, and have been, and are engaged at their respective mines in
the mining of bituminous coal. It was stipulated at the hearing that each of said
companies in such mining operations causes and has continuously caused a
substantial amount of equipment, materials, and supplies used in the mining of
bituminous coal to be purchased, transported, and delivered in interstate com-
merce from and through other States to their mines; that the companies an-
nually mine a great volume of bituminous coal, 'in '1947 amounting to approxi-
mately 60,000,000 tons, a substantial amount of which is sold, transported, and
.delivered in interstate commerce to and through States other than those in
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 931
which such coal is mined ; and that the companies are and have been engaged
in commerce within the meaning of the Act.
The said mines are commonly known in the industry as "captive" mines,
that is, they are owned and operated for the production of coal used by the
respective companies in the production by 'them' of basic steel,' of which said
companies produce approximately 85 percent of the annual production in the
United States.
II. THE LABOR ORGANIZATION INVOLVED ; JOHN L. LEWIS
International Union, United Mine Workers of America, is a labor organization
admitting to membership employees of the companies. The Respondent, John L.
Lewis, at all times discussed in this report has been the president of the Union
and its representative and agent in the collective bargaining negotiations herein-
after discussed.
III. TIE UNFAIR LABOR PRACTICES
A. Events before April 30, 1948
On April 30, 1948, the Union, by John L. Lewis, its president, requested of
the bituminous coal operators who were parties to the 1947 agreement with the
,Union, a conference in Washington, D. C., for the purpose of negotiating a
successor contract to such National Bituminous Coal Wage Agreement of 1947,
which was to expire on June 30, 1948. The alleged unfair labor practices herein
involved occurred after April 30, against a background of labor-management
relations between the Union on the one hand, and the companies and other oper-
ators of bituminous coal mines on the other, during the years after 1941. It
will be helpful to set out briefly these previous relations.
On June 19, 1941, the Union and certain operators of bituminous coal mines
in the so-called Appalachian Territory entered into an agreement known as the
Appalachian Wage Agreement, to expire in 1943. The employer parties thereto
were operating commercial coal mines, that is, mines producing coal sold by the
producers commercially, and not captive mines. On December 7, 1941, the
Union and certain operators of captive mines executed a simillar contract. Both
contracts contained a provision, in effect, that employees covered by the contract
were required to be or become members of the Union.
Thereafter, such membership requirement was carried forward and included
in contracts entered into between the Union and the bituminous coal operators,
including the agreement of July 8, 1947, covering the period from July 1, 1947,
to June 30, 1948. That contract contained the following language applying to
nonexempted employees :
It is further agreed that as a condition of employment all employees shall
be, or become, members of the United Mine Works of America ... .
,The captive-mine operators participated in the negotiations and were employer
parties to the 1947 contract together with various associations and operators of
commercial mines.
The said union-shop membership requirement has been in force and in effect
at all times in the commercial and captive bituminous coal mines since 1941.
B. Negotiations in May, June, and July, 1948
As heretofore indicated, on April 30, 1948, the Respondent Lewis, as president
of the Union, notified all signatories to the National Bituminous Wage Coal
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Agreement of 1947, that a conference would be held in Washington, D. C., on
May 18, 1948, for the purpose of negotiating a successor contract. At such
conference, on May 18, there were present representatives of the commercial
bituminous coal operators and Harry M. Moses representing the captive-mine
operators. Officers, a rules committee, and a credentials committee were selected.
In the credentials committee there arose a dispute as to the participation in the
bargaining conference of the Southern Coal Producers Association, which had
not been 'as such a party to the 1947 contract. The Union contended that the
association did not have proper credentials and declined to negotiate with the
association with respect to a 1948 wage agreement . There followed a charge of
unfair labor practices against the Union before the National Labor Relations
Board, alleging refusal to bargain by the Union, and an injunction proceeding in
the District Court of the United States for the District of Columbia instituted
by the Regional Director of the National Labor Relations Board against the Union
for such alleged refusal to bargain. The Court enjoined the Union from refusing
to bargain with the Southern Coal Producers•Asseciation, and on June 4, 1948,
counsel for the Union announced that the Union would comply with the Court's
order. On June 7, negotiations were resumed with representatives of the Asso-
ciation and other operators, including the captive-mine operators, and continued
until June 15.
There at once arose a dispute between the Union representatives and the
operators with respect to an action pending in the District Court between
trustees of the Welfare Fund provided for in the 1947 wage agreement. Lewis
contended that the operators had authority to direct the position of their
trustee and thus to resolve the controversy as to use of funds in the trust, and
first took the position that negotiations of a 1948 contract would not proceed
until the Welfare Fund issue was resolved. Negotiations continued, however,
subject to the unresolved matter of the Welfare Fund. On June 9, the Union
proposed that the 1947 contract continue in effect after its expiration on June
30, subject to cancellation upon 5 days' notice and upon the condition that the
operators cause their trustee to permit "activation" of the Welfare Fund and
abide by a majority decision of the three trustees Later that day the opera-
tors, through their representative, O'Neill, issued to the Union a statement of
policy containing a reference to the union shop, as follows :
Our present contract contains a union shop provision. Because of the
Labor Management Relations Act, 1947, this provision cannot be carried in
the new agreement without first following the requirements of the law. This
means that before any such clause can be made effective, the National
Labor Relations Board must certify that at least a majority have voted'to
authorize the union to make such an agreement. The operators, however,
are willing to insert into the contract a union shop provision to become
effective when and to the extent permitted by law.
On June 15, there had been no agreement reached with respect to the Welfare
Fund controversy and the operators informed Union representatives that it
seemed useless to continue negotiations unless some agreement or resolution
could be reached respecting the Welfare Fund. There followed efforts of the
Federal Mediation Service to mediate the issue, the President of the United
States issued an Executive Order creating a Board of Inquiry, and on June 21
a hearing was had before-said Board of Inquiry. On June 22, the District Court
issued an oral decision favorable to the position taken by the Union with respect
to the Welfare Fund and at 8 o'clock p. in., on the same day, the operators and
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 933
the Union resumed negotiations. Discussion -,yas had as to hours, wages, and
the amount of contributions to be made to the Welfare Fund.
A further conference was had on the morning of June 23, and on June 24,
the Board of Inquiry was informed that substantial progress had been made
toward an agreement. It was disclosed that the matter of the union shop had
not been further discussed with the Union and it was indicated that a further
conference would be held on the morning of June 25. It is clear that on June
24, the parties had agreed substantially on most matters involved in the wage
agreement, but had not agreed on the issue of the union shop.
On June 25, Moses called Lewis on the telephone and stated that the Union's
insistence on the union-shop provision made it impossible for the captive-mine
owners to sign the contract. Lewis expressed regret, stating that he had
reached agreement with the rest of the industry and was not inclined to make
any changes . The operators and the Union met at 11 o'clock a. in., on June 25,
to read the contract as it had been drafted and to make any changes therein.
Moses conferred privately with Lewis at*the opening of this conference seeking
to persuade Lewis to omit the union-shop clause, or to word it so that it would
not be immediately binding but effective only when and to the extent permitted
by law. Lewis declined, stating that any change in the 1947 provision would be
taken by the miners and the public as an abandonment of the union-shop princi-
ple and indicated that a large majority of the operators were in agreement with
him to include the provision of the 1948 contract.
When Moses and Lewis returned to the conference, it developed that the union-
shop provision of the 1947 contract was included in the draft being considered
and was, approved by the commercial operators. Moses, for the captive-mine
owners, stated that they would not sign a contract containing the union-shop
clause. The 1948 contract was thereafter executed between the Union and the
commercial operators.
Moses, on behalf of the captive-mine operators, notified the Board of Inquiry
of the impasse on the union-shop clause and the Board of Inquiry, in its final
report to the President, attached a supplement pointing out that unresolved issue
between the Union and the captive-mine owners.
There was a further meeting between Lewis and Moses on June 28, at which
there was discussion of the possibility of modifying the contract provision in
some way by an exchange of letters but nothing developed therefrom. On
June 30, in New York City, counsel for the captive-mine group and counsel for
the Union discussed possible means of satisfying both parties but no agreement
was reached since the Union was unwilling to suspend its union-shop policy and
the operators were unwilling to agree to its continuance.
The 1947 wage agreement expired at midnight on June 30, 1948. The annual
miners' vacation period had begun on June 26 and was to end at midnight on
July 5. During the vacation period, the captive-mine owners posted notices at
their mines stating, in effect, that they would pay miners the wages fixed in the
wage agreement which had been executed by the Union and the commercial
operators and would pay the increased royalty into the Welfare Fund as provided
therein, that they had not signed the agreement on account of the union-shop
provision, but were willing to accept said union-shop provision provided it would
not become effective until authorized as provided in the Act. The employees of
the captive-mine operators did not return to work on July 6, the first day after
the 1947 contract had expired, and did not return until July 13, as hereinafter
discussed.
844340-50-vol 83-60
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 8, at the suggestion of the National Mediation Service, there was a
conference between Moses and counsel for the captive-mine operators, both
representing the companies, and counsel for the Union, with respect to the
absence of the miners from work and the unresolved issue of the union shop
which was still preventing the execution of a contract. Mr. Hopkins, counsel for
the Union, renewed a previous suggestion that individual employees execute
approvals of the union-shop provision insisted on by the Union. The representa-
tives of the companies stated, in effect, that the proposal was not in accord with
the Act.
On the same day, July 8, the complaint in this case was issued by the Acting
Regional Director of the National Labor Relations Board, alleging that the
Respondents were refusing to bargain with the captive-mine operators, were
.attempting to cause the companies to discriminate against their employees, and
were restraining and coercing their employees, all on account of insisting on a
union-shop provision in any contract. Injunction proceedings were thereupon
instituted by said Acting Regional Director in the District Court to enjoin the
Respondents from the alleged unfair labor practices.
On July 9, at the request of Judge Goldsborough of the District Court, John
Gall , counsel for the Companies, Moses, and Welly K. Hopkins, counsel for the
Union, met in Judge Goldsborough's chambers and conferred with respect to
the injunction case, the impasse of the union-shop issue, the absence of the
miners from work, and the public and national interests in the lessened steel
production resulting from the situation. A further conference was held in
Judge Goldsborough's chambers on July 13. At that time no agreement had
been reached, the employees in the captive mines were still withholding their
services, and in a number of large commercial mines, notwithstanding the
signing of the contract with the commercial operators, the employees had not
returned to work. The captive-mine operators at this time decided to sign the
1948 wage agreement containing the union-shop clause and entered into a
stipulation with the Union stating that the parties desired that production of
coal in the captive mines be immediately resumed and that the unfair labor
practice case before the National Labor Relations Board proceed, and that the
1948 wage agreement be in full force and effect from July 1, 1948, to June 30,
1949, subject to final decision in the unfair labor practice case by a court of last
resort.
The captive-mine operators, by their representative Moses, and the Union
executed the contract. The same afternoon, Lewis, as president of the Union,
telegraphed the district officers of the Union having captive-mine operations,
advising them of the execution of the agreement and directing them immediately
to notify the miners in all mines affected to report to the first available shift
desired by the company. The miners at once began returning to work in the
captive mines, some of them on later shifts the same day. The petition in the
injunction case was withdrawn.
It seems clear to the undersigned that the captive-mine operators executed
,the 1948 agreement because of the insistence of the Union and its president that
the Union would agree to no contract which did not contain the union-shop
provision, and because the miners, all members of the Union, were withholding
their services and would continue to do go until a contract was in effect. In
this situation, there can be no question that the Union and its president were
approving and participating in the strategy of the employees concertedly with-
holding their services. The undersigned so finds, and further finds that the
concerted action of the employees in the captive mines in withholding their
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 935
services constituted a strike by the Union for the purpose of causing the com-
panies to execute a wage agreement containing a union-shop clause.
C. Refusal to bargain
The complaint alleges that the Respondents refused to bargain with the
companies respecting the employees of the companies "in the appropriate unit
set forth in paragraph V." The alleged appropriate unit set out in paragraph
V of the complaint is as follows : "All employees working in or above the mines
of the companies, or each of them." It is thus clear, as recognized by counsel for
the General Counsel in their brief, that the complaint alleges the appropriate
unit to be "alternatively a single employer unit or a unit consisting of all the
employees of the companies." At the hearing the parties submitted a joint
request that the Union be found to be the exclusive bargaining representative
of all the nonexempted employees of the captive-mine companies without a
finding of any specific appropriate bargaining unit.
There is no question that the Union is the representative for purposes of
collective bargaining of practically all of the individual nonexempted employees
in each of-the captive mines. The Respondents so admitted in their answer
and the evidence is conclusive that during recent years all nonexempted em-
ployees have been required by the union-shop contract to be or become members
of the Union; and that with the possible exception of a few employees who have
not yet become members, all miners employed in the captive mines are union
members.
Counsel for the parties did not, at the hearing, offer evidence for the purpose
of showing the appropriateness or inappropriateness of any collective bargaining
unit, and any evidence in the record bearing on that question was apparently
offered on other issues. Counsel took no position at the hearing with respect
to either of the alternatives alleged in the complaint. It does not appear that
in the bargaining negotiations the question of appropriate unit was raised or
mentioned. The record is plainly insufficient for a determination that a partic-
ular unit of the two alternative units alleged in the complaint is an appropriate
unit for the purposes of collective bargaining. The evidence is also insufficient
upon which to base a finding that generally one,or the other of the alternative
units is an appropriate one, particularly since the 1947 contract was negotiated
by representatives of commercial operators and captive-mine operators ; both
types of employers executed the 1947 contract and the negotiations for the 1948
contract were participated in by representatives of the commercial operators
as well as captive-mine operators. -
The undersigned is of the opinion that a specific appropriate unit must be
found as a prerequisite to a finding of refusal to bargain and as the basis for
any order to bargain. A finding of an uncertain unit or alternative units would
afford no basis for compliance or enforcement on account of indefiniteness as to
who would be bargained for.
The question in issue in this case is fundamentally whether the insistence
by the Union to the inclusion of the union-shop clause in any contract between
the Union and'the companies, is an unfair labor practice by the Union, and
arises squarely under the 8 (b) (2) issue of causing or attempting to cause the
companies to discriminate. It is there uncomplicated by any question of
appropriate unit.
Under the circumstances the undersigned sees no point in reopening the
hearing for litigation of the question of appropriate unit and finds the evidence
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insufficient to support a finding of refusal to bargain. It is therefore found
that the Respondents have not refused to bargain as alleged in the complaint-
D. Causing and attempting to cause discrimination
The complaint as amended alleges that Respondents, and each of them, from
on or about June 22, 1948, and continuously thereafter, caused and attempted to
cause the companies, and each of them, to discriminate against their employees
by causing and attempting to cause the companies, and each of them, to enter into
an effective union-shop contract requiring all employees to be or become members
of the Union, without certification by the Board that at least a majority of the
eligible employees of the companies, or each of them, voting in the most recent
election held as provided in Section 8 (c) of the Act, authorized ,the Union to
make a union-shop contract.
Section 8 (b) (2) of the Act provides that it shall be an unfair labor practice
for a labor organization or its agents "to cause or attempt to cause an employer
to discriminate against an employee in violation of subsection (a) (3)," referring,
of course, to Section 8 (a) (3). The provision just quoted obviously includes
as the discrimination caused or attempted to be caused, any discrimination in
violation of Section 8 (a) (3) .' The language is clear and unambiguous. There
is no requirement that the labor organization be the representative of employees
in an appropriate unit, nor that it have bargaining rights or a contract.
Accordingly, the issue here is whether the Union and John L. Lewis caused
or attempted to cause the companies to discriminate against employees in
violation of Section 8 (a) (3). There would seem to be no question that
application by the companies of the` provision'that all"employees be or become
members of the Union, would constitute discrimination *under Section 8 (a)
(3) unless such union-shop provision has been preceded by the election and
certification procedures set out in the proviso in said subsection? It is en-
tirely clear from the record that the Union has not been so certified by the
Board after a union-shop election.
Have the Union and its president caused and attempted to cause the com-
panies to discriminate? In my opinion, the National Manttime Union case,
supra, is decisive on this issue. The record establishes that throughout the
negotiations the Respondents insisted that the contract between the Union
and the companies contain the union-shop provision requiring employees to
"be or become members of the United Mine Workers of America." It was the
sole point on which negotiations broke down. All other terms and conditions
had been agreed on. The Union refused to sign a contract not containing it.
When the companies yielded the point on July 13, the contract was immedi-
ately executed containing the provision and all other matters on which agree-
ment had been reached. The Respondents went further than insistence.
Throughout the negotiations, both with the representatives of commercial
and captive-mine operators as a group, and with the representatives of the
captive-mine operators, there was an implicit understanding on the part of all
that the members of the Union would not mine coal without a union contract.
8 The further discrimination mentioned in Section 8 (b) (2) "against an employee with
respect to whom membership in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining membership " does not limit the all-in-
clusive language first quoted because it is in the alternative and can, at most, relate only
to a particular type of discrimination referred to in Section 8 (a) (3).
1 National Maritime Union ( 1948 ), 78 N. L . R. B. 971.
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 937
When the annual vacation period ended at midnight, on July 5, 1947, the
contract having expired on June 30, and no new contract having been entered
into solely because of the insistence of the Union .that the illegal union-shop
clause be included, the miners in the captive mines concertedly did not return
to work and continued to absent themselves from work until the companies
and the Union executed the new contract on July 13.
The miners in the captive mines immediately returned to work upon notice
from the president of the Union that the contract had been signed. As here-
tofore indicated, I find this concerted absence from work to have been a strike
by and with the knowledge and approval of the Union and its president for the
purpose of compelling the companies to agree to a contract containing the union-
shop clause.
In these circumstances, on this record, I find that the Union and Lewis
attempted to cause and caused the companies to execute a contract contain-
ing the unlawful union-shop agreement. It has been a condition of employ-
ment in force and effect at all times since. It is not a defense that no
-employees are shown to have lost employment because of non-membership
in the Union, nor is it a defense that no employees are shown to have desired
to withdraw from the Union. As the Board said in National Maritime Union,
supra, the prohibition of Section 8 (b) (2) extends "to instances in which
the Union or its agents seeks to cause the employer to accept conditions
under which any non-union employee or job applicant will be unlawfully
discriminated against." In this case, as the Board said in the National
Maritime Union case, "the acts of the Respondents . . . fall squarely within
this prohibition."
The undersigned finds that the Respondents have caused and attempted to
cause the companies to discriminate against employees in violation of Section
8 (a) (3) of the Act.
E. Restraint and coercion
The complaint alleged that the Respondents, by refusing to bargain with the
companies and by causing and attempting to cause the companies to discriminate
against their employees, restrained and coerced them in the exercise of rights
guaranteed in Section 7 of the Act, and thereby violated Section 8 (b) (1) (A)
-of the Act. The undersigned has heretofore found the evidence insufficient on
which to base a finding with respect to the alleged refusal to bargain and will
therefore consider as alleged restraint and coercion only the facts heretofore
found that the Respondents have caused and attempted to cause the companies
to discriminate against their employees with respect to the union-shop provi-
sion. In the opinion of the undersigned, the decision of the Board in the
National Maritime Union case, supra, is controlling. It was there decided that
acts of a union amounting to refusal to bargain and attempts to cause com-
panies to discriminate against employees by insisting on an illegal hiring hall
clause and a "laying up and fitting out" provision, and a strike to compel the
inclusion of such provisions did not amount to restraint and coercion. The
Board considered at length the legislative history of Section 8 (b) (1) (A), and
found it insufficient to indicate a legislative intent to cover in Section 8 (b) (1)
(A) the situation there involved, pointing out that there was no violence in the
strike and that the efforts of the Union were not directed against a particular
individual or group of individuals.
Counsel for General Counsel attempt to distinguish the National Maritime
Union case by language in the Board opinion that the strike had as its prime
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objective the protection of the employment interests of the NMU members and
not the coercing of nonmembers to join , contending that in this.case the Union's
purpose was not to protect work opportunities but to compel employees to
remain members of the Union and to compel new employees to join the Union.
The undersigned has also considered the point that the Board in the Maritime
case said that the efforts of the union constituted merely an attempt to cause
the employer to discriminate ; whereas in this case , the attempt took another
step in the direction of discrimination in that the illegal provision became
effective as a condition of employment . I do not find these differences sufficient
to distinguish the present case as to restraint and coercion from the decision in
the Maritime Union case . There being in this case no independent restraint
and coercion of employees , no threats or violence in the strike , and no efforts by
the Union directed against a particular individual or group of individuals, the
undersigned finds that the Respondents have not restrained and coerced em-
ployees of the companies in the exercise of rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the companies 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, and have led, to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. REMEDY
Since the Respondents have violated Section 8 (b) (2) by causing and attempt-
ing to cause the companies to enter into a contract containing a clause making
membership in the Union a condition of employment, without complying with
the union election procedure in the proviso in Section 8 (a) (3) of the Act, it
will be recommended that they each cease and desist therefrom and take certain
affirmative action to remedy such violations. Since the particular means used
in causing and attempting to cause such discrimination were insistence during
bargaining negotiations with the companies that such union-shop provision be
included in any contract, and a strike to compel the acceptance of such union-shop
provision in a bargaining contract, it will be specifically recommended that they
cease and desist therefrom. Further, since the unlawful union-shop provision is
now in force, it will be recommended that the Respondents cease maintaining,
enforcing, or giving it any effect.
On the basis of the above findings of fact and the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. International Union, United Mine Workers of America, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act. John L. Lewis is, and at
all times material herein was, the president of the said Union and the agent
of said Union for purposes of collective bargaining with the companies herein,
and its agent in insisting on the inclusion in any collective bargaining agreement
of a union-shop provision.
2. By causing and attempting to cause the companies to enter into a collective
bargaining agreement containing a union-shop clause making membership in the
Union a condition of employment, without compliance with the provisos in
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 939
Section 8 (a) (3) of the Act, the Respondents and each of them have caused and
attempted to, cause the companies to discriminate against employees in violation
of Section 8 (a) (3) of the Act and thereby engaged in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
4. The Respondents have not engaged in unfair labor practices within the
meaning of Section 8 (b) (3) or Section 8 (b) (1) (A) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that International
Union, United Mine Workers of America, its officers, representatives, and agents,
and John L. Lewis, as its president, shall :
1. Cease and desist from :
(a) Causing or attempting to cause the companies or any of them to execute
contracts which expressly, or in their performance, make membership in the
International Union, United Mine Workers of America, a condition of employ-
ment except in accordance with the provisos in Section 8 (a) (3) of the Act ;
(b) Insisting on, requiring, or instructing or inducing its representatives to
require that the companies execute contracts which expressly, or in their perform-
ance, make membership in the International Union, United Mine Workers of
America, a condition of employment except in accordance with the provisos in
Section 8 (a) (3) of the Act ;
(c) Directing, instigating, or encouraging employees to engage in a strike or
approving or ratifying strike action taken by employees for the purpose of re-
quiring that the companies execute contracts which expressly, or in their per-
formance, make membership in the International Union, United Mine Workers
of America, a condition of employment except in accordance with the provisos
in Section 8 (a) (3) of the Act;
(d) Causing or attempting to cause the companies to discriminate in any
manner against their respective employees in violation of Section 8 (a) (3)
of the Act ;
(e) In any manner maintaining, enforcing, or giving effect to the union-shop
clause in its contract with the companies until and unless said clause is in accord-
ance with the provisos to Section 8 (a) (3) of the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act :
(a) Post immediately in conspicuous places, including all places where notices
to members employed in the companies' mines are customarily posted, and main-
tained for a period of at least sixty (60) consecutive days, copies of the notice
atached hereto and marked "Appendix A." The notices shall be signed by the
Union by John L. Lewis, president ;
(b) Notify the Regional Director for the Fifth Region (Baltimore, Mary-
land) in writing within ten (10) days from the receipt of this Intermediate
Report what steps the Respondents have taken to comply therewith.
It is further recommended that unless the Respondents shall, within ten (10)
days from the receipt of this Intermediate Report, notify said Regional Director
in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring them to take the
action aforesaid.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that the complaint be dismissed insofar as it,
alleges that the Respondents engaged in unfair labor practices , within the
meaning of Sections 8 (b) (1) (A) and 8 ( b) (3) of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring
the case to the Board , pursuant to Section 203.45 of said Rules and Regulations,
file with the Board , Rochambeau Building , Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order or to any other part of the
record or proceeding ( including rulings upon all motions or objections) as he
relies upon , together with the original and six copies of a brief in support
thereof ; and any party may, within the same period , file an original and six
copies of a brief in support of the Intermediate Report and Recommended Order.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced . Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46 , should any party
desire permission to argue orally before the Board , request therefor must be
made in writing to the Board within ten (10 ) days from the date of service of
the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions, recommendations , and recom-
mended order herein contained shall , as provided in section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 18th day of January 1949.
WILLIAM R . RINGER,
Trial Examiner.
APPENDIX A
• NOTICE TO ALL OFFICERS , REPRESENTATIVES , AGENTS, AND MEMBERS OF
INTERNATIONAL UNION, UNITED MINE WORIxERs OF AMERICA
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Jones and Laughlin Steel Cor-
poration, Bethlehem Collieries Corporation, Minds Coal Mining Corporation,
Republic Steel Corporation, Standard Fire Creek Coal Company, Buckeye
Coal Company, Youngstown Mines Corporation, Olga Coal ,Company, Armco
Steel Corporation, Wheeling Steel Corporation, Consumers Mining Company,
Inland Steel Company, Weirton Coal Company, Crucible Steel Company of
America, H. C. Frick Coke Company, United States Coal and Coke Company,
Geneva Steel Company, and Tennessee Coal, Iron and Railway Company, or
any of them, to execute contracts which expressly, or in their performance,
make membership in the International Union, United Mine Workers of
America , a condition of employment except in accordance with the provisos
in Section 8 (a) (3) of the aforesaid Act.
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA 941
WE WILL NOT insist on, require, or instruct or induce our representatives
to require that said companies execute contracts which expressly, or in
their performance, make membership in the INTERNATIONAL UNION, UNITED
MINE WORKERS OF AMERICA, a condition of employment except in accordance
with the provisos in Section 8 (a) (3) of the aforesaid Act.
WE wnL NOT direct, instigate , or encourage employees to engage in a
strike, or approve or ratify strike action taken by employees, for the purpose
of requiring that said companies execute contracts which expressly, or in
their performance, make membership in the INTERNATIONAL UNION, UNITED
MINE WORKERS OF AMERICA, a condition of employment except in accordance
with the provisos in Section 8 (a) (3) of the aforesaid Act.
WE WILL NOT cause or attempt to cause said companies to discriminate
in any manner against their respective employees in violation of Section 8
(a) (3) of said Act.
WE WILL NOT in any manner maintain, enforce, or give effect to the union-
shop clause in our contract with the companies until and unless said clause
is in accordance with the provisos to Section 8 (a) (3) of the said Act.
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA,
Dated------------------------ By --------------------------------------
JOHN L. LEWIS,
President.
This notice must remain posted for 60 days from the date hereof , and must
not be altered, defaced, or covered by any other material.