Kelley's Creek Colliery Co.

National Labor Relations Board - Board Decisions

Nov 13, 1939

17 N.L.R.B. 506 (N.L.R.B. 1939)

In the Matter of KELLEY'S CREEK COLLIERY CO. and INTERNATIONAL
UNION, PROGRESSIVE MINE WORKERS OF AMERICA
Case No. C-1255.-Decided November 13, 1939
Coal Mining Industry-Interference, Restraint , and Coercion : anti-union
statements , urging, persuading, and warning employees not to join one union
and to retain membership in another ; threatening employees with discharge
because of membership in one union ; responsibility for acts of : supervisory
employees without authority to hire or discharge ; manager of the company
store, a wholly owned subsidiary situated on respondent ' s property-Agree-
ment: for settlement of grievances , not availed of by employee as estopping him
to charge a discrimination against him-Discrimination: discharge of employee
because of membership in a union-Reinstatement Ordered: discharged em-
ployee ; grounds for refusal of : alleged refusal of employees to work with em-
ployee if reinstated , as-Back Pay: awarded discharged employee.
Mr. W. J. Perricelli, for the Board.
Mr. Charles S. Reed and Mr. Arthur B. Hodges, of Charleston,
W. Va., for the respondent.
Mr. Claude L. Smith, of Charleston, W. Va., for the Progressive.
Mr. T. C. Townsend, of Charleston, W. Va., for the United.
Mr. Guy Farmer , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Union, Progressive Mine Workers of America, herein called the
Progressive, the National Labor Relations Board, herein called the
Board, by Philip G. Phillips, Regional Director for the Ninth Region
(Cincinnati, Ohio), issued its complaint, dated January 30, 1939,
against Kelley's Creek Colliery Co.,' Ward, West Virginia , herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices within the meaning of
'The respondent is designated in the original charges as Kelley's Creek Collieries Com-
pany . The amended charges and the complaint , however, designate the respondent as
It appears herein.
17 N. L. R. B., No. 42.
506
KELLEY'S CREEK COLLIERY COMPANY 507
Section S (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, herein called the Act.
In respect to the unfair labor practices, the complaint alleged in
substance (1) that the respondent had interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act, by inquiring of employees concerning their
union beliefs and membership, by threatening employees with dis-
charge because of their Progressive membership and activity, by
warning employees that discharges for Progressive membership
and activity were imminent and that a certain discharge had been
effected because of membership in the Progressive, by warning em-
ployees that their tasks would be made more difficult if they con-
tinued their activity in behalf of the Progressive, by stating to
employees its refusal to deal in any manner with the Progressive,
and by other acts well known to the respondent; and (2) that the
respondent had discouraged membership in the Progressive and inter-
fered with, restrained, and coerced employees in the exercise of the
rights guaranteed by Section 7 of the Act, by discharging Eugene
Shifflett, an employee, on or about August 23, 1938, and thereafter
refusing to reinstate him because he joined and assisted the Progres-
sive and engaged in concerted activities with other employees for the
purposes of collective bargaining and other mutual aid and protection.
Copies of the complaint, accompanied by notice of hearing, were
duly served upon the respondent and the Progressive.
On February 3, 1939, International Union, United Mine Workers
of America, District 17, herein called the United, filed with the Re-
gional Director a motion to intervene in the proceeding alleging,
inter alia, that the respondent was operating under a collective agree-
ment with the United, that such agreement contained provisions for
the settlement of all disputes arising between the respondent and
members of the United, and that Shiffiett was a member of the United
and had the right to invoke the provisions of the agreement for the
purpose of settling any dispute arising in connection with his alleged
discharge. The motion further alleged that the respondent's em-
ployees have declared that they will not work with persons who belong
to the PrQgressive, and that if the Company should attempt to employ
members of both the United and the Progressive "the conditions
would prevail which it was the declared policy of the Act to eliminate."
Acting pursuant to Article II, Section 19, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, the Re-
gional Director granted the aforesaid motion to intervene.
On February 4, 1939, the respondent filed its answer admitting
the allegations of the complaint concerning the nature and interstate
character of its business but denying the unfair labor practices.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the alleged discriminatory discharge, the answer
affirmatively alleged that Shiffiett was "laid off" for the following
reasons: that just prior to his lay-off Shiffiett was engaged in the
.operation of a conveyor at respondent's mine No. 1; that the con-
veyor was transferred to mine No. 2 and there installed with addi-
tional equipment, requiring the operator to be an experienced motor
operator in order to move the mine cars under the conveyor; that
Shiffiett was not qualified for such employment; and that there was
no other work available which Shiffiett was capable of performing
to the satisfaction of the respondent. The answer further alleged
that the respondent was at all times during the period covered by
the complaint operating under a contract with the United, which
union now represents and at all times during the period covered by
the complaint represented more than 90 per cent of the respondent's
employees; and that the respondent has been advised and believes
that in the event that it returns Shiffiett to work, the employees will
refuse to return to work, which will result in a shut-down of the
respondent's mine and irreparable loss to both the respondent and
its employees.
Pursuant to notice, a hearing was held on February 9, 10, 11, 13,
14, 15, 16, and 17, 1939, at Charleston, West Virginia, before J. J.
Fitzpatrick, the Trial Examiner duly designated by the Board. The
Board, the Progressive, and the United were represented by counsel
and participated in the hearing. At the beginning of the hearing,
counsel for the Progressive moved the Trial Examiner to strike from
the record the motion to intervene previously filed by the United
and granted by the Regional Director. The Trial Examiner denied
the motion, but ruled that the participation of the United in the
hearing should be limited to matters affecting its alleged agreement
with the respondent. Full opportunity to be heard, to examine and
cross-examine witnesses and to introduce evidence bearing on the
issues was afforded all parties. At the hearing, counsel for the re-
spondent moved the Trial Examiner for leave to amend its answer
with respect to the alleged discriminatory discharge to allege that
Shiffiett was laid off for the reason that the conveyor which he had
been operating was transferred to respondent's mine No. 2 to replace
another conveyor, whose operator was continued in charge of the new
machine and that there was no other work available which Shiffiett
was capable of performing to the satisfaction of the respondent. The
motion was granted by the Trial Examiner. At the conclusion of the
hearing counsel for the Board moved to amend the pleadings to con-
form to the proof. The motion was granted. The respondent then
moved the Trial Examiner to dismiss the complaint. The Trial
Examiner reserved ruling on the motion. The Trial Examiner made
KELLEY'S CREEK COLLIERY COMPANY 509
several rulings on other motions and on objections to the admission
of evidence. The Board has reviewed the Trial Examiner's rulings
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. Following the hearing the respondent and the
United filed briefs in support of their positions.
On April 15, 1939, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and
recommended that the respondent cease and desist therefrom and
that it take certain specific affirmative action, including an offer to
reinstate with back pay Eugene Shiffiett, the employee alleged in the
complaint to have been discriminatorily discharged and refused rein-
statement. In his Intermediate Report the Trial Examiner also
denied the motion of respondent to dismiss the complaint, upon
which he had reserved decision at the close of the hearing. For the
reasons hereinafter set forth this ruling is hereby affirmed.
Subsequently, on April 27, the respondent and the United filed
exceptions to the Intermediate Report and requested opportunity to
file briefs and present oral argument before the Board. Pursuant to
leave granted by the Board, briefs, which the Board has considered,
were filed on behalf of the respondent, the Progressive, and the
United, and a hearing for the purpose of oral argument was held
on June 6, 1939, before the Board in Washington, D. C. The re-
spondent, the Progressive, and the United were represented by coun-
sel and participated in the argument. The Board has considered the
exceptions to the Intermediate Report, and in so far as such excep-
tions are inconsistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a West Virginia corporation and a wholly owned
subsidiary of Valley Camp Coal Company. It is engaged in the
mining and sale of coal at Ward, Kanawha County, West Virginia,
where it mines 7,000 acres of coal lands. The respondent has a daily
average production of about 4,000 tons of coal, 70 per cent of which
is shipped outside the State of West Virginia.
The respondent employs approximately 800 men in and around its
mines at Ward.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Al. THE ORGANIZATIONS INVOLVED
International Union, Progressive Mine Workers of America, is a
labor organization, affiliated with the American Federation of Labor,
admitting to its membership the production and maintenance em-
ployees of the respondent.
International Union, United Mine Workers of America, District
17, is a labor organization, chartered by International Union, United
Mine Workers of America, which in turn is affiliated with the Con-
gress of Industrial Organizations. It admits to its membership the
production and maintenance employees of the respondent, excluding
mine managers and top foremen.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
For a number of years prior to the advent of the Progressive at
the respondent' s mine in 1938, the United had maintained a local at
the respondent's mines and during most of that time was the only
active labor organization among its employees. During its earlier
existence the United encountered opposition on the part of the
respondent, but following the passage of the National Industrial
Recovery Act in 1933, the respondent, acting through the Kanawha
Coal Operators Association, entered into a collective agreement with
the United covering wages, hours, and other conditions of employ-
ment. The original contract ran for 2 years and was renewed twice
thereafter for similar periods, the last renewal prior to the hearing
being executed on March 31, 1937, to expire on April 1, 1939.2
In about May 1938 Joseph Ozanic, international president of the
Progressive, established headquarters at Charleston, West Virginia,
for the purpose of initiating an organizing drive among the coal
miners in the Kanawha district where the respondent 's mines are
located. Ozanic and his associates then contacted Eugene Shifflett,
an employee of the respondent who had always been an aggressive
union leader, and offered him a position as a Progressive organizer.
Shifflett declined the offer but agreed to assist in organizing the
2 In his Intermediate Report the Trial Examiner found that this contract was not one
providing for a closed shop. While both the respondent and the United took exception to
this finding, neither party at any time claimed that the conduct set forth below was
engaged in tinder or pursuant to a closed -shop contract . Had either the respondent or
the United made such a claim we would have had before us the issue whether or not
the respondent ' s conduct was lawful under the proviso to Section 8 ( 3) of the Act. In the
absence of such a claim , however, we make no finding as to whether the agreement provided
for a closed shop or whether the respondent 's actions would have been justified under
the proviso to Section 8 (3). We therefore confine our consideration to the issues as
framed by the parties and tried at the hearing.
KELLEY'S CREEK COLLIERY COMPANY 511
respondent's employees, and thereafter Shifflett and others distrib-
uted Progressive literature, conducted meetings, and solicited mem-
bership among the respondent's employees. By the last of August
1938, the Progressive had obtained a number of members and estab-
lished a local, of which Shifflett as its acknowledged leader became
the first president.
Sometime in August, while the Progressive's campaign was at its
height, Arthur Morgan, general superintendent of the respondent's
mines, called a meeting of the respondent's supervisory employees
during the course of which, according to his own admission, he
instructed his subordinates to see that the respondent's contract with
the United was carried out and fro have no dealings with the Pro-
gressive. At about the same time Morgan called in the United's
mine committee and inquired concerning the strength of the Pro-
gressive. Dell Milam, who was then chairman of the committee,
testified that during the discussion Morgan asked the committee what
it was going to do about the activities of the Progressive and declared
that the respondent wanted "to have nothing to do" with that organi-
zation. Morgan denied making such statement, but since it is con-
sistent with the attitude admittedly expressed by him at the super-
visors' meeting referred to above, we fund that he expressed his oppo-
sition to the Progressive in the manner asserted by Milani.
Shortly after the above occurrences, Clinton Thompson, foreman
of the respondent's mine No. 2, approached Troy Grizzell, section fore-
man, and, according to the testimony of the latter, showed Grizzell a
list containing the names of several Progressive members and in-
structed him to get rid of them by telling them that their places had
been worked out and that there was no other work available for
them. Grizzell further testified that he was reluctant to carry out
this order because of his sympathy with the employees thus marked
for dismissal and their families; that he went to the employees on
the list and warned them to give up their Progressive membership ;
and that he then approached Thompson, and for the purpose of
inducing him to countermand his instructions, told Thompson that
the employees had been warned and were threatening to appeal to the
"Labor Board" if they were dismissed. Grizzell testified that
Thompson thereupon relented, telling him to let the matter rest
for the time being. Grizzell's story is corroborated in part by
C. W. Bowe, an employee on the blacklist,' who stated at the hearing
that Grizzell came to him at about the time stated and told him that
the management had ordered his dismissal because of his affiliation
with the Progressive, and advised him to renounce that organization
if he wanted to work for the respondent. Thompson admitted that
' The list also contained the name of Eugene Shifflett.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had a paper containing the names of several employees such as
that described by Grizzell but denied that any employee was included
thereon because of his membership in the Progressive. He explained
that it was merely a list of workers who were in disfavor because of
poor work, violations of safety rules, and similar infractions. In
view of the corroborative nature of Bowe's testimony, together with
the fact that the conduct attributed to Thompson was consistent with
the instructions given to the supervisors by Morgan as set forth
above, we accept as true Grizzell's testimony as to the true nature
of the paper and of Thompson's instructions. concerning it. We also
find that Grizzell warned at leash one employee, C. W. Bowe, to
renounce his Progressive membership and activities.
Throughout the period here under discussion, according to the testi-
mony of a number of witnesses, Stanley Deal, foreman of the
respondent's mine No. 1, frequently threatened employees with dis-
charge because of their Progressive activities and otherwise disclosed
his unmistakable antagonism toward that organization. Eugene
Shifllett stated at the hearing that shortly after the first Progressive
meeting on about June 18, 1938, Deal4 evinced keen interest in the
outcome of the meeting and in the other activities of the Progressive,
and then asserted that both he and the respondent were loyal to the
United, warning Shifflett that he was liable to be discharged if he
continued to identify himself with the Progressive. Shifflett testified
that he then gave Deal a copy of the Act and warned him that his
activities constituted a violation of the rights of employees guar-
anteed thereby, and that on the following day Deal indicated that
he had taken a "neutral" attitude, adding, however, that "we are
working for the United ..." Another employee, Russell Barefield,
testified that sometime in August, Deal told him that he (Deal) was
"Under no obligations to the Progressives and could hire and fire
them," and declared further that the respondent was going to "put
the skids under" Shifflett. In a similar vein, Carl Stone, a crew
leader, testified that in the latter part of August, Deal remarked, in
the presence of Stone and other employees, that if he found as many
as three employees who refused to work alongside the members of the
Progressive, he would discharge any employee who belonged to. that
organization and that the respondent would "back him up." Deal
denied that he expressed himself in the manner set forth by the
above witnesses. In view of the cumulative effect of the testimony
of such witnesses together with the fact that the statements' credited
to Deal were consistent with Morgan's instructions to the supervisory
4 The record refers to Deal at this point as "Teasdale," but the respondent states in its
brief and it is clear from the entire record that the person to whom Shifflett referred
was Deal.
KELLEY'S CREEK COLLIERY COMPANY 513
employees, however, we find that he made the above-mentioned state-
ments attributed to him by Shifllett, Barefield, and Stone.
In addition to above activities on the part of the respondent, state-
ments reflecting opposition to the Progressive were attributed by a
number of witnesses to various other employees holding supervisory
positions. It appears from the testimony of several of such witnesses
that William Duff, a conveyor foreman, was particularly outspoken
in his antagonism towards the Progressive. Two employees, Law-
rence Taylor and Edward Hundley, testified that on August 22, Duff
stopped the conveyor at which they and several others were employed
and warned them, "If anyone here belongs to the Progressives, you
had better get out, because (you) are going down the road if you
don't." Another employee, Alfred Alderman, testified that on
several occasions Duff warned him to be careful to whom he talked,
tt stop carrying a Progressive card, and to "lay low," and that Duff
further stated that the management had instructed the foremen to
"disqualify" Progressive members in one way or another, either by
discharging them or making it "so tough for them that they couldn't
stay." Although Duff denied making any such statements, in view
of the weight of the evidence to the contrary, and particularly in
view of the fact that the activities attributed to him were consistent
with Morgan's instructions to the supervisors, we do not credit his
denials, and accordingly we find that he spoke to employees in the
threatening terms described above.
Harvey Seacrist, an employee, testified concerning a somewhat
similar warning which he received from George Tucker, another con-
veyor foreman. Sometime in August or September Seacrist had been
laid off by the respondent purportedly as a temporary disciplinary
measure because he had crashed a mine motor into a cutting machine.
During his lay-off he engaged in a conversation with Tucker and
several other employees, and one of the latter remarked that Seacrist
had been laid off because he was a member of the Progressive.
According to Seacrist, Tucker thereupon replied that he did not know
whether or not that was the reason for the respondent's action, but
that if Seacrist were reinstated he had better "keep his damned mouth
shut." Tucker in effect admitted making the remark credited to
him, stating that he did so because he did not wish to see the first-
aid team of which Seacrist was a member broken up. In view of
Tucker's admission we find that he warned Seacrist in the manner
described by the latter.
Similarly, another employee, Cecil Woodrum, stated at the hearing
that sometime during the period under discussion, Paul Gregory,
a section foreman, warned him to "stay away from" the Progressive,
for the reason that it was "liable to get (him) in trouble." Gregory
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that he issued any such warning to Woodrum. In view of the
fact that the statement attributed to Gregory is consistent with the
attitude expressed by the respondent through various other super-
visory employees and with Morgan's instructions to the supervisors,
we find that he warned Woodrum in the terms set forth above.
Sometime in August Alfred Alderman, an employee already re-
fered to above, applied at the company store for credit for certain
merchandise and was refused. Alderman testified that R. R. Wood-
rum, the store manager, explained the refusal on the ground that
Alderman and 30 other employees were slated for discharge because
of their Progressive membership and activities. Woodrum admitted
that he withheld credit from Alderman, but testified that he did so
because Alderman already was indebted to the store, and denied that
he made the statement with respect to the dismissal of Progressive
members. Since the alleged statement is in accord with the senti
ment repeatedly expressed by the respondent through its supervisory
employees, however, we accept as true Alderman's version of this
incident.
Sometime in September a United committee, acting with the
knowledge and consent of the respondent, spent several days going
through the respondent's mine for the ostensible purpose of investi-
gating a controversy which had arisen between the respondent and
the miners concerning the disposal of the fine coal, known as "bug
dust," which results from the cutting of the mine machine into the
coal vein.' The committee took along an ample supply of United
membership cards, and during the course of the investigation the
committee openly canvassed all employees for the purpose of per-
suading them to sign such cards. Even those employees who had
previously joined the United were requested to reaffirm their al-
legiance as a check against the claim of the Progressive that it had
made serious inroads into the United's membership. One employee,
C. E. Frazier, at first refused to sign a card but later did so when
Troy Grizzell told him that he had better sign, stating that he
(Grizzell) would not like to see Frazier's wife and children go hungry.
It is clear from the above facts that throughout the period here
under discussion the respondent sought to forestall and impede the
growth of the Progressive among its employees. In August, while
the Progressive was attempting to gain a foothold at the mines,
Arthur Morgan, the respondent's general superintendent, revealed the
respondent's hostility towards the Progressive by instructing the
5 The practice was for the miners to receive pay for loading the dust if it were clean
and marketable and to discard or "gob" it if it were dirty, without receiving com-
pensation therefor . In this instance the respondent had claimed that the dust contained
rock dust and was unmarketable and should be "gobbed."
KELLEY'S CREEK COLLIERY COMPANY 515
supervisory employees to have no dealings with the Progressive and
by calling in the United's mine committee and encouraging it to take
counter-action against the Progressive's organizing drive. The an-
tagonism to the Progressive thus disclosed by the respondent bore
fruit in vigorous activity on the part of numerous supervisory em-
ployees designed to break the spirit of the Progressive's campaign
and to coerce and restrain employees in their organizational activi-
ties. Shortly after Morgan issued the above instructions Clinton
Thompson, a mine foreman, ordered Troy Grizzell, a section foreman,
to get rid of a number of men because of their Progressive member-
ship, and although he later relented, he did so only after Grizzell had
told him that the employees were going to appeal to the Board and
after Grizzell, himself a supervisor, had warned the employees in
question to give up their membership in the Progressive. Likewise,
during this period, other supervisory employees and persons in posi-
tions of influence with respect to the employees, including Stanley
Deal, a mine foreman, Paul Gregory, a section foreman, William Duff
and George Tucker, conveyor foremen, and R. B. Woodrum, store
manager, repeatedly urged and warned employees to renounce the
Progressive and threatened employees with discharge because of
their membership in that organization. It is clear from the nature
of the statements niade by such supervisory employees and in the
light of the employer-employee relation existing and the respondent's
economic power, that they were not mere idle statements of opinion
and comment but were positive threats and unmistakable expressions
of hostility towards the Progressive. Finally, in sharp contrast to
its unrelenting opposition to the Progressive, the respondent per-
mitted the United to canvass its employees and openly to solicit mem-
bership on company property during working hours. In view of the
open manner in which these activities on behalf of the United were
conducted we do not credit the respondent's contention that it was un-
aware that the United committee was soliciting membership, and ac-
cordingly we find that the United's drive was conducted with the
knowledge and tacit consent, and in at least one instance, as we have
hereinbefore found, with the active assistance of the respondent.
The respondent contends that it is not responsible for the activities
of any of its supervisory employees below the rank of foreman on the
ground that they have no authority to hire or discharge. We find
this contention to be without merit.,, Grizzell and Gregory were
8 See Matter of Picker X-Ray Corporation , Waite Manufacturing Division, Inc. and
International Association of Machinists, 12 N. L. R. B. 1384; Matter of T. W. Hepler
and International Ladies' Garment Workers Union, 7 N. L. R . B. 255; Matter of Ward
Baking Company and Committee for Industrial Organization ; Matter of Ward Baking
Company and Confectionery Workers International Union of America., 8 N. L. R. B. 558.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section foremen, next in rank to the mine foreman, himself, and were
in charge of a section, each containing about 90 men. Duff and
Tucker were conveyor foremen, or crew leaders, and supervised the
work of crews of about five men for which they received additional
compensation of about 60 cents a day. Consequently, although they
had no authority to hire and discharge, it is clear that each of them
exercised a considerable measure of control over the employees, and
was in a position of responsibility and influence as regards any dis-
ciplinary action which might be taken by the respondent. Further-
more, as we have pointed out above, the conduct of these employees
was in accordance with the tenor of the instructions which they re-
ceived from Morgan and, in the case of Grizzell, from Thompson,
both of whom were admittedly high ranking supervisory employees
of the respondent. Under such circumstances, the fact that they had
no authority to hire and discharge cannot relieve the respondent
from responsibility for the acts of such employees.7
The respondent also contends that it is not answerable for the
statement of R. R. Woodrum, manager of the company store, for the
reason that such store is operated by a separate corporation and has
no connection with the respondent. This contention likewise is with-
out merit. Although the company store is operated by the Valley
Creek Stores' Company, the latter is a wholly owned subsidiary of
the respondent's parent corporation, the Valley Creek Coal Com-
pany. Furthermore, it is located on the respondent's property near
its mines, contains the respondent's offices, and accepts scrip, issued
by the respondent to its employees, in return for merchandise. In
view of these circumstances it is clear that the company store is
identified in fact and in the minds of the employees with the re-
spondent, and that Woodrum, as manager of the store, having the
power to extend, or withhold, credit to employees, is in a position
where his statements have coercive effect. Consequently, the re-
spondent must be deemed responsible for his statements to the em-
ployees.
We find that the respondent by warning employees against joining
or remaining members of the Progressive, by threatening them with
discharge because of their Progressive membership and activities, by
in various ways expressing hostility towards the Progressive, and by
permitting the United to solicit membership on company time and
property, interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act.
7 Swift & Company v. National Labor Relations Board 106 F. (2d) ST (C. C. A. 10th,
Tune 7, 1939) ; A,nerican, Mamafacturing ; Company and Nit-Art Employer s. Inc., Y. National
Labor Relations lJoard 106 F. (2d) 61 (C. C. A. 2d. July 26, 1939).
KELLEY'S CREEK COLLIERY COMPANY 517
B. The discharge of Eugene Shifjlett
Eugene Shifflett was first employed by the respondent in 1922
and, except for time off on two occasions while participating in
lengthy strikes, worked for the respondent almost continuously until
August 23, 1938.. During this period Shifflett performed numerous
Jobs in and around the respondent's mines, some of which required
more than ordinary skill and dependability, including loading coal,
operating a mine motor, laying track, shooting slate, operating a
conveyor, and various others. The record shows that he was trans-
ferred from one position to another with considerable frequency,
on occasion because the job expired, sometimes at his own request,
and at other times at the request of the management. Only once
does it appear that he was removed from a job because of poor pro-
duction, and that occurred in the spring of 1938, at which time a
machine crew of which he was a member was broken up for the rea-
son that it was not producing-as much coal as the respondent ex-
pected. At that time, however, Shifflett was told by his foreman,
Stanley Deal, that the latter did not place the blame entirely on
Shiffiett's shoulders. On one occasion during his employment
Shiffiett was transferred from a position as motor operator because
he refused to work overtime without pay, and again in 1937 he was
discharged outright by Stanley Deal for refusing to work more than
7 hours, whereas Deal claimed but Shiffiett denied that 8 hours con-
stituted the regular day for the work Shiffiett was then doing.8 In
each of these instances Shifett was soon returned to his former em-
ployment, in the first because his foreman asked him to return, and
in the second because Deal, himself, requested Shifflett's reinstate-
ment.
Throughout his long term of employment at the respondent's mine,
.Shifett was an active and aggressive union leader. In the begin-
ning, and for many years thereafter, he was a loyal member and at
times a local officer of the United. In about 1930, however, he gave
up his membership in the United and helped to organize a union
known as the West Virginia Mine Workers. In 1924 and again in
1931 he took part in strikes called by these respective organizations,
and on each occasion was subsequently refused reinstatement by the
respondent for a long period because of his active leadership in such
strikes. When he returned to work for the respondent in 1934 for
the first time after the 1931 strike, Shifett paid dues to the United
' Seven hours constituted the working day for inside work and 8 hours for outside
labor . At the time under discussion Shifflett was engaged in opening up a drift for a
new mine and on the day the mine commenced operations claimed that he was then doing
inside work.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the compulsory check-off system then in existence, attended
United meetings, and from that time up to and including the date
of the termination of his employment was considered to be a member
of that organization by both the respondent and the United. In 1938,
however, as we have seen, he joined the Progressive and by the date
of the termination of his employment on August 23 had become its
acknowledged leader and the spearhead of its organizing campaign.
On August 15, 1938, and for several months preceding that date,
Shiffiett was engaged at the respondent's mine No. 1 in operating
a double-chain conveyor, a machine used to convey coal outside the
mine by means of receptacles attached to an endless chain. This
particular conveyor was the only one of its kind at the respondent's
mines, and by virtue of having worked with it for some time Shifflett
was more familiar with its operation and mechanism than any other
employee. A short time before, on August 1, the respondent had
attempted to install a mechanical apparatus for the purpose of start-
ing and stopping the conveyor and had informed Shifflett that if it
worked his job would be terminated and that there was no other
work for him. The device was unsuccessful, however, and after a
lay=off of 1 day, Shiffiett was returned to work at his usual position.
On August 15, Clarence Pauley, superintendent of the mine, in-
structed Stanley Deal, mine foreman, to remove the conveyor from
mine No. 1 for the purpose of transferring it to mine No. 2 and to
send along a man to help install it at its new location. Deal had the
conveyor removed on the same day and selected Shifflett to accompany
it and assist in setting it up at mine No. 2 because, as Deal himself
expressed it, Shifflett "'would understand and know as much about it
or more than the majority of our men." '
Shifflett thereupon accompanied the conveyor to mine No. 2 and
for several days worked with a crew engaged in setting up the ma-
chine. On August 22, several days before the installation was com-
pleted, however, George Tucker, conveyor foreman in charge of the
crew, notified Shifflett that he was no longer needed on the job and
instructed him to report back to his original place of employment.
On that same day Shiffiett sought out Clarence Pauley and told him
what had occurred. Pauley thereupon remarked that he had been of
the opinion that Shifflett would remain at mine No. 2 for at least an-
other week and then instructed Shifflett to see Stanley Deal with
respect to his future employment. On the following morning, August
23, Shifflett approached Deal and asked when he might return to
work and was told by the latter that there was no work available for
him at that time. Shortly thereafter, on about the last of August,
Shiffiett again saw Pauley and requested reinstatement and was again
informed by Pauley that the respondent had no work for him. On
KELLEY'S CREEK COLLIERY COMPANY 519
still another occasion, sometime in September, Shifflett approached
Arthur Morgan, the respondent's general superintendent, and in-
quired the reason for the respondent's failure to reinstate him, but
Morgan refused to discuss the matter, stating that he did not inter-
fere with the hiring and discharging of men but left affairs of that
nature "up to the foreman."
On August 23, the day after Shifflett was informed by Tucker that
his services no longer were required at mine No. 2, the respondent
hired a new employee, Aras B. Arbogast, to work at that mine. His
employment card shows that Arbogast was employed as a "conveyor
man," and the record indicates that within a few days after his
employment he was assigned to work in connection with the conveyor
which Shiffiett had been operating. The record also establishes and
the respondent in fact admits that between August 23 and the hearing
the respondent employed a large number of men at Shifflett's original
place of employment, mine No. 1, to do work which Shifflett "could
do and had done before" during his tenure of employment at the
respondent's mines.
The respondent takes the position that the transfer of the conveyor
from mine No. 1 to mine No. 2 terminated Shifflett's job with the
respondent and necessitated his lay-off. We find no merit in this con-
tention. It is true, as the respondent contends, that each of the mines
has a separate operating budget and its own employees. It appears,
however, that both mine No. 1 and mine No. 2 are owned and operated
by the respondent and that it is not unusual for employees to be
transferred from one to the other as evidenced by the fact that on
occasion Shifflett, himself, had been so transferred. In the light of
these facts and in view of Shifflett's years of service with the respond-
ent, together with his admittedly superior knowledge of the operation
of the conveyor, we are impelled to the belief that Shifflett's leader-
ship in the Progressive afforded the real reason for the respondent's
action in refusing to transfer Shifflett permanently to mine No. 2
along with the conveyor. We are confirmed in that opinion by the
fact that after the conveyor was transferred from mine No. 1 to
mine No. 2 the respondent saw fit to hire a new employee to do work
in connection with the conveyor which Shifflett was preeminently
qualified to perform.
The respondent apparently seeks to explain its refusal to reinstate
Shifflett to any of the numerous jobs which admittedly became
available after August 23 on the ground that he was not a satis-
factory workman. The only testimony offered in support of this
claim was that of Stanley Deal, his foreman, who stated at the hearing
that Shifflett was not dependable and that his work was not satisfac-
tery as evidenced by the fact that he had been shifted from one posi-
2 4 7 3 84-4 0-v of . 17--34
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to another: in an effort to find a suitable place for him and
by the fact that he disliked manual labor. He further testified that
Shiffiett was a "disturbing influence" among the employees for the
-reason that he refused to do more than he considered to be a fair
day's work and because he called his fellow employees "scabs" if they
worked harder than he thought proper.
We find little support in the record for Deal's statement that
Shiflett was a poor workman as evidenced by an aversion to physical
labor and by frequent transfers. Although at the time of the termina-
tion of his employment Shifliett was employed at a job which appar-
,ently required only a modicum of hard labor, we have seen that
.during his long term of employment he satisfactorily performed
numerous jobs requiring considerable physical exertion and that on
one occasion only was he transferred because of poor production and
.then the fault lay with the machine crew as a whole and could not
fairly be attributed to any individual member.
We are likewise unimpressed by Deal's assertion that Shifllett was
a "disturbing influence" for reasons stated by Deal as set forth above.
While it is true that twice during his term of employment Shifflett
was in difficulty with the respondent, once because he refused to work
-overtime without pay and again because he refused to work longer
than 7 hours whereas Deal claimed that the regular day for that
particular work was 8 hours, there is no showing that for the most
-part Shiffiett's own estimate of a fair day's work did not coincide
with that of the respondent. Likewise, Deal's vague general accusa-
tion that Shiffiett criticized other employees in harsh terms if they did
more work than he thought fitting is not supported by references on
Deal's part to any particular instances of such conduct or by the
testimony of any other witness.
Even assuming that Shiffiett's work were unsatisfactory and that he
were a "disturbing influence" for the reasons asserted by Deal, we
.are convinced that his alleged shortcomings. as an employee in those
respects were not determinative factors in the respondent's refusal
-to employ him at any of the jobs which became vacant after August
23. The fact that, although Shifflett's deficiencies as asserted by Deal
were alleged to be of long standing, the respondent nevertheless
.saw fit to retain him in its employ for many years and even to reem-
ploy him as late as 1937 leads us to believe that the reasons advanced
by the respondent were "culled ex post facto" to screen its true
motive.9 We are further impelled to that conclusion by the fact that
as late as 1937 Deal, himself, the foreman upon whose testimony the
9 Matter of Highway Trailer Company and United Automobile Workers of America, Local
No. 155, etc., 3 N . L. R. B. 591, enforced in toto upon consent, in National Labor Relations
Board v. Highway Trailer Company , 95 F. (2d) 1012 (C. C. A. 7th, 1938).
THE OHIO RUBBER COMPANY 521
,respondent relies to demonstrate Shiffiett's failings, took active steps
to bring about the latter's reinstatement.
It is clear from the above-mentioned facts, considered in the light
of the respondent's unmistakable hostility towards the Progressive,
that the respondent seized upon the transfer of the conveyor from
:one of its mines to another as a convenient pretext for ridding itself
of the acknowledged leader and organizing spirit of the Progressive.
From its inception at the mines as described in Section III A above,
the respondent evinced unrelenting opposition to the Progressive
and singled out Shiffiett in particular because of his preeminence in
its campaign as a target for repeated warnings and threats of dis-
-charges, culminating in Shiffiett being placed on a list of employees
slated for discharge because of his Progressive activities. There-
after, when Shiffiett persisted in his organizing efforts, the respondent
transferred the conveyor which Shifflett was then operating to another
of its mines and refused to continue Shifflett as its operator, although
Shifflett had been employed by the respondent for many years and
was admittedly better qualified to operate the conveyor than any
other employee. And finally, after making use of Shifflett's superior
knowledge of the conveyor by delegating him to help install it at its
new location, the respondent then "laid off" Shifflett and has not since
reemployed him although a number of new employees have been
hired at mine No. 1 to perform work such as Shifflett previously has
performed and is by skill and experience capable of performing.
Under these circumstances the respondent's consistent refusal to
reinstate Shifflett to such vacancies confirms our opinion that the
respondent's original failure to transfer Shifflett along with the
conveyor and his consequent "lay-off" were motivated by his Pro-
gressive activities. Furthermore, even if his lay-off had been due to
the termination of the particular job at which he had been employed,
as the respondent claims, the respondent's refusal to employ Shifflett
at any of the jobs which became available after his original "lay-off"
,clearly constitutes a discrimination in regard to hire and tenure of
employment within the meaning of the Act.
The respondent argues that the fact that it informed Shifflett on
August 1 that if the automatic device for operating the conveyor
proved successful there would be no work for him indicates that his
Progressive activities did not influence the termination of his em-
ployment on August 23, since he had not then been elected president
of that organization. The contention is obviously untenable. Al-
though Shifflett did not become president of the Progressive until
about August 20, he was its acknowledged leader and most active
organizer for several months prior to that date, and the fact that the
respondent attempted to eliminate his job on August 1 strengthens
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather than weakens our belief that the respondent was seeking to
find a pretext for getting rid of -him because of his Progressive
activities.
Both the respondent and the United contend that since their col-
lective agreement provides for the settlement of grievances and since
Shifflett omitted to use the remedy alleged to be available to him as
a member of the United under the agreement, he is estopped to
charge the respondent with having discriminated against him. This
contention is without merit. By virtue of Section 10 (a) of the
Act the Board's jurisdiction over unfair labor practices is exclusive
and subordinate to no other means of adjustment. In a proper case
the Board may in the exercise of its discretion require an employee
first to exhaust the remedies available to him under an agreement or
otherwise before appealing to the Board. No such case is here pre-
sented. In its pleadings, at the hearing, and at oral argument before
the Board, the United, upon whom would devolve the responsibility
for presenting Shifflett's grievance to the respondent, has consistently
maintained that the termination of Shiffiett's employment was proper.
It is clear, therefore, that under the circumstances of this case to
dismiss this proceeding because Shiffiett did not first appeal to the
United, particularly when his claim is that he was discharged because
of membership in a rival organization, would defeat rather than
effectuate the policies of the Act.10
We find that the respondent by terminating the employment of
Eugene Shiffiett on August 23, 1938, and by thereafter refusing to
reinstate him, discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Progressive.
We further find that by such acts the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
Shiffiett's average weekly earnings at the time of the termination of
his employment were about $30. He has not been employed since his
discharge and he desires reinstatement.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with its operations described in
Section I above, have a close, intimate, and substantial relation to.
trade, traffic, and commerce among the several States, and tend to
10 Cf. Matter of International Shoe Company and Local Unions No. 2118 and 700 Boot CC
Shoe Workers International Union , affiliated with American Federation of Labor, 12'
N. L. R. B . 728; Matter of Ingram Manufacturing Company and Textile Workers
Organizing Committee , 5 N. L. R. B. 908; Matter of Maryland Distillery, et al . and Distillery
Workers Union 20270 , et at., 3 N. L . R. B. 176; Matter of Picker X-Ray Corporation, Waite -
Mai? ufacturing Division ., Inc. and International Association of Machinists , 12 N. L. R. B..
1384.
KELLEY'S CREEK COLLIERY COMPANY 523
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order the respondent to cease and desist
therefrom and to take certain affirmative action designed to effectuate
the policies of the Act, including the reinstatement of Eugene Shiffiett
without prejudice to his seniority and other rights and privileges, and
to make him whole for any loss of pay he has suffered by reason of the
termination of his employment by payment to him of a sum of money
equal to the amount which he normally would have earned from
the date of the termination of his employment on August 23, 1938,
until the date of the offer of reinstatement, less his net earnings l'
during said period. The respondent alleges in its answer that it is
informed that in the event that Shiffiett is returned to work the
other employees will refuse to work with him, which will result in a
shut-down of the respondent's mine, and for that reason apparently
argues that Shiffiett should not be reinstated. We find no evidence
in the record that the respondent has received such an ultimatum
from its employees or that the employees contemplate taking the
action asserted by the respondent. Furthermore, even if such threat
were in fact made, our mandate under the Act does not permit us to
allow the respondent's unfair labor practices to go unremedied because
of the potential hardship to the respondent arising from such threat
of strike.12
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union, Progressive Mine Workers of America, and
International Union, United Mine Workers of America, District 17,
are labor organizations within the meaning of Section 2 (5) of the
Act.
"By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local f590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings, but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal, or other government
or governments which supplied the funds for said work-relief projects.
12Cf. Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82,
4 N. L. R. B. 498, enforced in National Labor Relations Board v. Star Publishing Company,
97 F. (2d) 405 (C. C. A. 9th, 1938), and National Labor Relations Board v. Remington
Rand, Inc., 97 F. (2d) 195 (C. C. A. 2d, 1938).
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The respondent, by discriminating in regard to the hire and
tenure of employment of Eugene Shiffiett, thereby discouraging mem-
bership in International Union, Progressive Mine Workers of Amer-
ica, has engaged in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of the
Act has engaged in unfair labor practices within the meaning of
Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Kelley's Creek Colliery Co., Ward, West Virginia, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, Progres-
sive Mine Workers of America, or any other labor organization of
its employees, by discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment because of mem-
bership in or activity on behalf of any such labor organization ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Eugene Shifliett immediate and full reinstatement to his
former position, or to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges;
(b) Make whole Eugene Shiffiett for any loss of pay he may have
suffered by reason of his discharge, by payment to him of a sum of
money equal to the amount which he normally would have earned as
wages from the date of the termination of his employment on August
23, 1938, to the date of the offer of reinstatement, less his net earnings
during said period; deducting, however, from the amount otherwise
due said employee, monies received by him during said period for
work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the
KELLEY' S CREEK COLLIERY COMPANY 525
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(c) Post immediately in conspicuous places in and around its
mines, and maintain for a period of at least sixty (60) consecutive
days, notices to its employees stating (1) that the respondent will
cease and desist as provided in paragraphs 1 (a) and (b) of this
Order and (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith;
Provided, however, that the provisions of this Order shall be
subject to any valid contract now in effect or subsequently entered
into between the respondent and any labor organization which
contract requires as a condition of employment membership in such
organization.