Knoxville Mining Co.

National Labor Relations Board - Board Decisions

May 28, 1947

73 N.L.R.B. 1321 (N.L.R.B. 1947)

In the Matter of KNOXVILLE MINING COMPANY, EMPLOYER and THE
PROGRESSIVE MINE WORKERS OF AMERICA, AN INDEPENDENT UNION,
PETITIONER
Case No. 13-R-4147.-Decided May 28, 1947
Mr. Burrel Barash, of Galesburg, Ill., for the Employer.
Messrs. G. W. Horsley and John McCann, of Springfield, Ill., for
the Petitioner.
Messrs. Robert H. Allison and Hugh White, of Springfield, Ill., for
the Intervenor.
Mr. David C. Buchalter, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Spring-
field, Illinois, on February 17, 1947, before Max Rotenberg, hearing
officer. At the hearing the Employer and the Intervenor moved to
dismiss the petition on the grounds that the Employer was not en-
gaged in commerce within the meaning of the Act and that an existing
contract between the Employer and the Intervenor was a bar to the
proceeding; the Intervenor also urged as a further ground for dis-
missal that the petition was defective in form. The hearing officer
referred these motions to the Board for ruling thereon. For reasons
stated below, the motions are hereby denied. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, a copartnership, is engaged in the mining and selling
of coal at its 2 bituminous coal mines in the vicinity of Knoxville,
Illinois. We are here concerned solely with one of these mines, called
Mine No. 1. During the calendar year 1946, the Employer purchased
for use at this mine, between $10,000 and $15,000 worth of repair parts
73 N. L. R. B., No. 236.
1321
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for its machinery and equipment, all of which was shipped to it from
points outside the State of Illinois. During the same period the Em-
ployer mined and sold in excess of 40,000 tons of bituminous coal valued
at between $130,000 and $140,000. Of this coal mined, approximately
5 percent, which represented powdered fuel remaining after stoker
fuel had been separated from screenings and which was valued at
approximately $1600, was sold and shipped by rail to a gas and electric
company outside the State of Illinois. The remainder of the coal was
sold at the mine direct to truckers, some of whom operated trucks with
out-of-State license plates.
We find, contrary to the contention of the Employer and Intervenor
that, in the operation of Mine No. 1, the Employer is engaged in com-
merce within the meaning of the National Labor Relations Act.'
II. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization, claiming to
represent employees of the Employer.
The United Mine Workers of America, herein called Intervenor, is
a labor organization affiliated with the American Federation of Labor,
claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of its employees because of its existing
contractual relationship with the Intervenor. At the hearing the
Intervenor urged this contractual relationship as a bar to a present
determination of representatives.
The most recent contract affecting the employees at this operation,
herein referred to as the Krug-Lewis agreement, was entered into on
May 29, 1946, between the Intervenor and the Secretary of the Interior,
as Coal Mines Administrator. The latter was acting pursuant to an
executive order 2 of the President of the United States authorizing
and directing the Secretary of the Interior to take possession of and
operate all bituminous coal mines, the operations of which were then
threatened by work stoppages, and to negotiate with representatives
of the miners concerning terms and conditions of employment. As
to its duration, this agreement provides that it "covers for the period
of Government possession the terms and conditions of employment in
respect to all mines in Government possession." This agreement also
"carries forward and preserves" the terms and conditions, contained
in the April 11, 1945, agreement, between the Intervenor and the Coal
1 Clover Fork Coal Co v N L. R B, 97 F (2d) 331 (C C A 6) ; N L R B v. Richter's
Bakery, 140 F. (2d) 870 (C. C. A. 5), certiorari denied 332
therein.
U. S 754 , and cases cited
9 Executive Order No . 9728 dated May 21, 1946 , 11 Fed Reg 5593.
KNOXVILLE MINING COMPANY 1323
Operators Negotiating Committee comprising five operators associa-
tions, of which the Illinois Coal Operators Association is one .3
Section 15 of the 1945 agreement provides, in part, that:
This Agreement, dated this 11th day of April 1945, shall be
effective as of April 1, 1945, and shall continue in effect hereafter
subject to the conditions and termination as herein provided. At
any time prior to April 1, 1946, in the event a significant change
occurs in the government wage policy, either party shall have the
right to request negotiations on general wage rates.
At any time after March 1, 1946, either party may give ten
days' notice in writing of a desire for a negotiating conference
upon the matters outlined in said notice. The other party agrees
to attend said conference. At the end of fifteen days after the
beginning of such negotiating conference either party may give
to the other a notice in writing of the termination of this Agree-
ment, to be effective five days after the receipt of such notice.
Although the record is incomplete as to the events which followed
the execution of the Krug-Lewis agreement, it does establish, (1) that
the Intervenor notified Krug that it was exercising its option under
Section 15 of the 1945 contract to terminate the Krug-Lewis agree-
ment, and (2) that the question of the impact of Section 15 on the
duration clause of the Krug-Lewis agreement then became one of the
issues in litigation between the parties.4
It was the position of the Intervenor at the hearing that, in view
of the pending litigation,5 the Krug-Lewis agreement is a bar to this
proceeding. We do not agree. Assuming the position most favor-
able to the Intervenor for contract bar purposes, viz, that the con-
tractual relationship is to continue in force for the period of Gov-
ernment possession , it is clear that the Krug-Lewis agreement will not
prevent an election at this time. For, as a result of the proclamation
of the President of the United States on December 31, 1946, that hos-
tilities of World War II were terminated,' the Secretary of the In-
terior will relinquish possession of the bituminous coal mines includ-
ing that of the Employer, on June 30, 1947, if not sooner, and that
contract will then have terminated. Accordingly, since the Krug-
' The Employer , although not a member of the Illinois Coal Operations Association,
entered into an agreement on July 23, 1945, with District 12 of the Inteivenor whereby all
the rules, regulations, and working conditions set forth in the April 11, 1945, agreement
and affecting that association and the employees of its members, became the rules and
regulations governing the Employer and its employees
4 Some of the details noted hereinafter are not revealed by the instant record They are,
however, matters of public record of which the Board has taken judicial notice
5 The Supreme Court of the United States has since the hearing decided some of the
issues between the parties, and the notice to terminate, mentioned above, has been with-
drawn in accordance with the mandate of the Supreme Court The question of the impact
of Section 15 of the Krug-Lewis agreement is still undetermined
9 Proclamation 2714, 12 Fed Reg 1
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis agreement has, at best, less than 6 weeks to run, we find that
it does not constitute a bar to a present determination of
representatives.'
As noted above, the Intervenor also urged dismissal of the petition
on the ground that it is defective in form. However, we are satis=
fled that the petition conforms to the requirements of the Board's
Rules and Regulations. Accordingly, we find no merit in this ground.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties, that all
production and maintenance employees at Mine No. 1 of the Employer,
excluding clerical employees and all supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 8
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Knoxville Mining Company,
Knoxville, Illinois, an election by secret ballot shall be conducted as
early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Thirteenth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Sections
203.55 and 203.56, of National Labor Relations Board Rules and Regu-
lations-Series 4, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-"roll period because they were ill or
on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated
before the date of the election, to determine whether they desire to
be represented by The Progressive Mine Workers of America, an
independent Union, or by The United Mine Workers of America, AFL,
for the purposes of collective bargaining, or by neither.
I I Matter of The Wheland Co., 72 N. L. R. B. 351, and Matter of Clark Bros. Co., Inc., 66
N L. R B. 849.
8 Any participant in the election herein may, upon its prompt request to, and approval
thereof by the Regional Director, have its name removed from the ballot.