Little Lump Coal Co.

National Labor Relations Board - Board Decisions

Nov 13, 1963

144 N.L.R.B. 1499 (N.L.R.B. 1963)

LITTLE LUMP COAL CO . 1499
All employees employed in the pit department of the Employer
at its Bagdad, Arizona, operations, but excluding all other employees,
office clerical employees, professional employees, guards, and super-
visors as defined by the Act.
[Text of Direction of Election omitted from publication.]
Frank B. Smith d/b/a Little Lump Coal Co. and Floyd and Lee
Dotson . Cases Nos. 9-CA-2812-1 and 9-CA-2812-2. November
13, 1963
DECISION AND ORDER
On August 13, 1963, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to na three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 the entire record in these cases,'
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following modifications :
The Trial Examiner found, and we agree, that the Respondent un-
lawfully solicited authorization cards from his employees on behalf
of SLU, thereby violating Section 8 (a) (1) and (2). We also find
that since SLU did not represent an uncoerced majority of the Re-
spondent's employees on December 20, 1962, the Respondent further
violated Section 8(a) (2) and (1) by recognizing SLU as such rep-
i The Trial Examiner found that the bargaining agreement between Respondent and the
Southern Labor Union , hereinafter referred to as SLU, was , except for a more liberal
vacation provision , the same as the one previously executed by United Mine workers and
the predecessor company, Frank and Frank B. Coal Company. The record shows that the
terms in the SLU agreement were, except for a more liberal vacation provision , the same
as those provided to employees by the Respondent prior to the negotiation of the SLU
agreement, and not the same as those provided in the Frank and Frank B Coal Company
agreement . This error is corrected , but does not otherwise require modification of the
Trial Examiner ' s conclusions and recommendations.
144 NLRB No. 147.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative and by entering into a collective bargaining agreement
containing a union-security clause with SLU on that date.'
The Trial Examiner also found, as do we, that the Respondent, by
discharging employees Lee and Floyd Dotson, Blackburn, and Smith
pursuant to the union-security clause in the above contract, violated
Section 8 (a) (1), (2), and (3). Although the discharges of the latter
two employees was not alleged in the complaint, in finding violations
as to them, the Trial Examiner relied on the fact that the issues
relating to the discharges of Blackburn and Smith had been fully
litigated at the hearing. We agree. However, in'addition to the cases
relied on by the Trial Examiner in this connection, we rely on the
Board's decision in Clear field Cheese Company, Inc., 106 NLRB 417,
424, modified on other grounds 213 F. 2d 70 (C.A. 3). There, the
Board found that the respondent employer violated Section 8(a) (3)
by unlawfully discharging and thereafter unlawfully refusing to rein-
state a number of its employees who were unfair labor practice strikers.
Although the complaint did not name employee Duke as a discrimi-
natee, the Board found a violation with respect to him and included
him in its order for reinstatement on the ground that the issues of his
discharge had been fully litigated at the hearing.' We deem the
instant case to be analogous.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.4
2 In view of the above, we find it unnecessary to pass upon the Trial Examiner's finding
that the SLU did not represent a majority of Respondent 's employees in the appropriate
unit at the time Respondent accorded recognition to SLU. Even assuming that the SLU
did represent a majority , such majority was obtained with, and as the result of, unlawful
assistance rendered by Respondent. By recognizing and negotiating a collective- bargaining
contract with the unlawfully assisted SLU, Respondent therefore violated Section 8(a) (2)
and (1 ) of the Act
3 Local 542, International Union of Operating Engineers , AFL-CIO (Elmhurst Contract-
ing Co , Inc (Division of Hagan Industries , Inc.)), 141 NLRB 53, is distinguishable.
Although the Board there refused to find that the respondent violated the Act by causing
the company to discriminate against two employees on the ground that they had not been
named in the complaint , the Board expressly relied on facts not present in the instant
case. There , the Trial Examiner stated throughout the hearing that lie took a strict view
of the pleadings and that if the General Counsel wished to present evidence beyond the
pleadings , his recourse was to amend the complaint ; and the General Counsel stated both
at the hearing and in his brief that he considered evidence concerning the discharge of
the two employees not named in the complaint only as background evidence to prove
other violations.
* The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in these cases, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Frank B. Smith d/b/a Little Lump Coal Co., its officers , agents,
successors , and assigns , shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed by Floyd and Lee Dotson , respectively,
on March 13 and April 1 , 1963 , the Regional Director for the Ninth Region of the
LITTLE LUMP COAL CO. 1501
National Labor Relations Board, herein called the Board, issued a consolidated
complaint on April 26, 1963, against Frank B. Smith d/b/a Little Lump Coal Co.,
Respondent herein, alleging violations of Section 8(a)(1), (2), and (3) of the
National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein
called the Act. Thereafter during the course of the hearing in this matter the com-
plaint was amended in certain respects In its duly filed answer, and in its further
answer made orally upon the record, Respondent, while admitting certain allegations
of the complaint, denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher
in Williamson, West Virginia, on June 12, 1963. All parties were represented and
afforded full opportunity to be heard, to present oral argument, and to file briefs
with me. Briefs were filed by Respondent and General Counsel on July 8, 1963.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of each of the witnesses appearing before me,'
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE RESPONDENT
Respondent Frank B. Smith is an individual proprietor engaged in the mining,
shipping, and selling of coal at mines located in McCarr, Kentucky, under the trade
name of Little Lump Coal Co. The parties stipulated that during the period
between August 1962, when the operations commenced, and April 1, 1963, being a
representative period, Respondent produced coal at his McCarr, Kentucky, mines
valued in excess of $50,000 and shipped said coal directly to points outside of the
Commonwealth of Kentucky. Upon the foregoing stipulated facts I conclude and
find Respondent to be engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Southern Labor Union and United Mine Workers of America are organizations
involved in the subject matter of these proceedings. It is admitted that Southern
Labor Union is a labor organization within the meaning of Section 2(5) of the Act
and I so find and conclude. As the Board has so found on innumerable occasions
with respect to United Mine Workers of America,2 I so find and conclude here.
III. THE ISSUES INVOLVED
1. The agency status of Respondent's father.
2. Whether the Southern Labor Union was unlawfully supported and assisted.
3. The Southern Labor Union's representative status.
4. Threats of reprisal and discharge as interference , restraint , and coercion.
5. The unlawful discharges for failure to join Southern Labor Union.
6. The inclusion in the findings and remedy of two unalleged discriminatees.
IV. THE UNFAIR LABOR PRACTICES
A. Introduction
The fluctuating operation and control of the mine properties involved here creates
one of the major issues of the case-namely, whether the father of the present
owner was or was not also his agent in the transactions alleged to be unlawful. A
brief historical summary is therefore in order.
1 Unless specifically indicated to the contrary any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his demeanor
as I observed it at the time the testimony was given. Cf. Retail Clerks International
Association AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1682, and
footnote 3; Bryan Brothers Packing Company, 129 NLRB 285 To the extent that I in-
dicate that I do not rely upon or reject in part or entirely the testimony of any given wit-
ness, it is my intent thereby to indicate that such part or whole of the testimony, as the
case may be, is discredited by me Jackson Maintenance Corporation, 126 NLRB 115, 117,
footnote 1, enfd. 283 F 2d 569 (C.A. 2). To the extent that I credit any witness only
in part I do so upon the established evidentiary rule that It Is not uncommon "to believe
some and not all" of a witness' testimony. N.L.R.B. v. Universal Camera Corporation,
179 F 2d 749, 754 (C.A. 2).
2 See, for example, United Mine Workers of America ; et al. ( Blue Ridge Coal Corpora-
tion ), 129 NLRB 146, 154.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all relevant times the mine properties at McCarr, Kentucky, were owned by
Standard Coal Corp., of Williamson, West Virginia. By lease of February 29, 1960,
mining rights in the property were granted by Standard to Frank Smith, father of
Respondent, and hereafter referred to as Frank Smith, Sr. On April 5, 1960,
Frank Smith, Sr., his son Frank B. Smith, and wife Juanita formed the corporation
Frank and Frank B. Coal Company, Inc., and proceeded to mine coal on the
property leased to Frank Smith Sr. This operation continued until December 31,
1961, at which time it terminated and coal was thereafter mined for the next 6
months by Woodrow Smith, under the name Smith Coal Co., pursuant to an oral
arrangement which appears to have constituted a sublease of the property. Wood-
row Smith is not related to Respondent herein, nor does his term of operation of
the property bear any relation to the issues of fact herein.
On July 1, 1962, again by oral arrangement, Respondent Frank B. Smith sub-
leased the property from his father and continued to mine it.
By the terms of the lease from Standard the rental of the property is paid directly
to it on a per tonnage royalty basis. At all times the operator-subleasee of the
property paid the royalty; first the Frank and Frank B. Coal Co., then Woodrow
Smith, and now Respondent.
Equipment used in the operation of the mine was and is owned jointly by
Respondent and Frank Smith, Sr. During the period when Woodrow Smith operated
the mine he paid rental for the equipment to both Smiths. Since his resumption
of operation in July 1962, Respondent pays his father, Frank Smith, Sr., royalties
of 20 cents per ton for the use of his half of the equipment. And equipment newly
purchased during this period is owned jointly by father and son.
In addition to the mining operations, the Smiths, Junior and Senior, have alter-
nately operated a store. Respondent Frank B. Smith was the first to own and
operate it, beginning with the demise of the Frank and Frank B. Coal Corp., on
December 31, 1961. When he began operations at the mine on July 1, 1962, he
sold the store to Frank Smith, Sr., who continues to own and operate it. Respond-
ent's employees who trade at the store are permitted to charge their purchases.
Collections are made by checkoff from their wages and remittance to the store by
Respondent.
Until May 20, 1963, only one operation was involved-mine No. 1. On that date
operations began at adjacent mine No. 2, under lease with Standard Coal. Frank
Smith, Sr., testified that in addition to his usual equipment royalty of 20 cents per
ton which be received for equipment used in mine No. 2, he is "kind of leading the
men there getting started in." Or, as he further explained his status, he is a
"boss, leader of a crew, crew leader." 3
B. History of labor relations
The predecessor company, Frank and Frank B. Coal Co., Inc., executed an agree-
ment with the United Mine Workers of America, herein referred to as UMW, on
December 2, 1960. The contract remained in force and effect until the demise
of the company on December 31, 1961. Everyone, Respondent, Frank Smith, Sr.,
and counsel appearing in behalf of the several parties, deem the contract to have
terminated at that time and not to have any application to Respondent and his
employees? In view of this and the absence of any allegation in the complaint
relying upon the contract's application to the new operation and its employees, I
conclude and find it to have terminated and that the UMW had no representative
status with respect to Respondent and his employees.
C. Sequence of events
In July 1962, shortly after' Respondent began his operations, his father, Frank
Smith, Sr., came upon one L. C. Johnson,5 a representative of the UMW, who was
seeking to establish four pickets "at the mouth of the hollow" in support of the
UMW. One word led to another and eventually to a blow by Frank Smith, Sr.,
and to Johnson's upsetting of Smith's loaded coal truck. Although Johnson insisted
8 Frank Smith, Sr's testimony on this matter, which I accept, directly contradicts Re-
spondent who testified that at this mine No. 2 his father "has nothing to do with it or my
men He is there-he is not on my payroll. He is there of the interest of his equipment."
ICf. General Extrusion Company, Inc, General Bronze Alwintite Products Corp, 121
NLRB 1168.
Referred by Respondent in his brief as Elza Johnson.
LITTLE LUMP COAL CO. 1503
"he was going to see that [Respondent] wasn't going to [run nonunion]," there is
no evidence that a picket line was established.6
Five months later, on December 3, 1962, roving pickets again appeared at Re-
spondent's mine demanding that the men quit until Respondent paid UMW the 40-
cent-per-ton royalty which is basic to current UMW contracts. The Respondent's
answer was that he could not afford to meet this requirement. The record does not
disclose how effective the picketing was.
Meanwhile representatives of the Southern Labor Union, referred to as the SLU,
had appeared on the scene in November 1962. They sought out Frank Smith, Sr.,
and asked him to sign up members for them, the arrangement being, according to
him, that he would be paid "five dollars a head." Frank Smith, Sr., made at least
three trips to the mine to solicit memberships; the first two trips being in conjunction
with collections from the company for employee purchases at his store, and a third,
in the company of employee Bernie Hatfield, being solely for the purpose of solicit-
ing memberships. In the course of his activity in behalf of SLU, in late November,
Frank Smith, Sr., mentioned his activities to his son, the Respondent. Respondent
thereafter saw his father "on the hill" on several occasions talking with the men.
On one of these occasions when he saw his father talking with the employees he
overheard him asking if they wished to look at one of the membership cards he held
in his hand. Respondent said nothing to either the men or to his father, but im-
mediately thereafter his father informed him that he had just signed up six members.
Respondent testified, however, that he did not ever recall his father telling him the
total number of applications obtained.
On December 20, 1962, three representatives of SLU, including Richard Davis,
appeared at the mine tipple and negotiated with Respondent a contract, the terms
of which included a umon-shop provision requiring membership after 30 days. With
the exception of a more liberal vacation provision the contract was otherwise the
same as the one previously executed by UMW with,the predecessor company Frank
and Frank B. Coal Co. It was not until negotiations had gotten underway, however,
that Respondent for the first time saw the membership cards of his employees. One
of the committee presented them to him. Respondent signed the contract thereafter
on the same day.
With particular respect to the cards, Respondent states he received 19 cards at
the mine tipple on December 20, the total number of employees being 30. How-
ever, as this case was being investigated Respondent gave only 14 cards to the
Board's agent, accounting for the remaining 5 cards by stating that he destroyed them
because they were the cards of men who later left his employ. SLU Representative
Davis testified that 19 cards were passed over to Respondent on that occasion. Davis
stated, however, that the 19 men whose cards were involved were not present at
the negotiations, nor were the cards themselves ever checked against a company
payroll to verify either their authenticity or the employee status of the signers.
From the foregoing it appears that only 14 employee applications can be verified
with certainty, namely, those turned over to the Board by Respondent. Davis'
testimony accounts only for 19 otherwise unidentified application cards, and Re-
spondent's destruction of the five cards creates the inference that their production
would have been unfavorable to him.7 I accordingly conclude and find that only
14 employees had joined the SLU on December 20, the date upon which the contract
was signed. The contract has at all times since that date been in full force and effect.
D. The discharges
Following his execution of the contract with SLU, Respondent proceeded to solicit
the membership of employees who had not yet joined the organization. Whereas
Respondent testified that he solicited only their checkoff authorization, employee
Lee Dotson credibly testified that Respondent asked him to "sign for the Southern
Labor Union" on several occasions after December 20, 1960, and on at least one
0 The undenied testimony of Frank Smith, Sr., which I accept on this point. In the
course of his testimony, Frank Smith, Sr., stated that this incident occurred at mine No. 1.
Inasmuch as mine No. 1 did not open until May 1963, and as a reading of the testimony
in context leaves no doubt of the time of the Incidents concerned, I find him to have mis-
takenly referred to mine No. 1 when he meant mine No. 2.
It is also to be noted that at the time that Johnson appeared Frank Smith, Sr., by his
own testimony, was operating a coal truck. This testimony, which I accept, belies his
Insistence elsewhere in the record, that he had no connection with mine No. 2 except half
ownership of the equipment.
7 Wigmore , Evidence ( 3d ed ), ¢ 291.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion before that time. Frank Smith, Sr., had also sought to get Dotson into
the SLU, but without success Actually it matters little whether Respondent solicited
union memberships, or as he urges, checkoff authorizations. The terms of the
executed contract required SLU membership after 30 days and the checkoff of dues
was likewise required. As the satisfaction of the latter requirement presupposes the
former, I conclude and find that Respondent was admittedly, in effect if not in fact,
soliciting SLU memberships regardless of which version of the testimony be accepted.
In the course of his solicitation of SLU memberships Respondent, on February
19, 1963, came upon four recalcitrants: Lee Dotson, Floyd Dotson, Kenny Smith,
and Pans Blackburn. In Respondent's words, when asked whom he terminated,
he said, "I told the boys if they wouldn't sign to put up their lights and leave.
Which they did . There were four, sir, that left the hill together [naming those
listed above]." As his reason for discharging them Respondent stated it was
"[B]ecause when they wouldn't give me the authority to check off that was all I had
to do."
E. Evaluation of credibility
The evidence upon which the foregoing findings are based is the testimony of
three witnesses at the hearing, the Respondent, his father, Frank B. Smith, Sr., and
employee Lee Dotson. Dotson's testimony, all of which I credit, was limited to the
character of Frank Smith, Sr.'s activities in behalf of the SLU, and to his own and
the other three employees' refusal to join the SLU and their resultant discharge.
Dotson also testified concerning his understanding of Frank Smith, Sr.'s relationship
to Respondent's operations. These "curb stone" impressions do not, in my estima-
tion, contribute to a determination of Frank Smith, Sr.'s status. I find it, therefore,
unnecessary to rely upon Dotson's testimony in that respect.
I find it difficult to believe all of Respondent's and Frank Smith, Sr.'s testimony.
Each of them, when testifying,, indulged in hedging and evasion to such an extent
that I found it necessary on occasion to instruct them to answer the questions asked.
They also involved themselves in frequent contradictions. Illustrative of these short-
comings are Respondent's answers to questions concerning his solicitation of SLU
membership. When asked if he had done so he answered, "No, sir. I never asked
no one to sign or take membership with them individually." When confronted with
a pretrial affidavit to the contrary he sought to distinguish between asking the men
individually, and in groups. Similarly, when asked if the employees knew Respond-
ent's father, a resident of a community of 480 voters for the past 52 years, and found
to be actively present at the mine site, Respondent answered, "They could have in
the community." And only after prodding did he state, "Yes, they knew him."
The foregoing illustrates a form of testimony that instills little confidence in a wit-
ness. Accordingly, I have relied upon Respondent herein only to the extent that
his testimony constitutes admissions or observations contrary to his disclosed interest,
or when his testimony is corroborated or explained by the testimony of other
witnesses.
The testimony of Frank B. Smith, Sr, is equally vulnerable for the same reasons.
Thus, as previously noted (supra, footnote 6), Frank Smith, Sr., testified to running
a coal car during a period when he had claimed elsewhere in his testimony that he
had no connection with the mine except as part owner of the equipment. Further-
more, in the course of describing his independence of the Company he was asked
his opinion of whether the Company could pay the UMW royalty. His answer was
patently evasive. For the same reasons assigned above with respect to Respond-
dent, I accordingly find it impossible to credit the testimony of Frank Smith, Sr.,
except insofar as it constitutes admissions and statements contrary to his or Respond-
ent's interests, or is corroborated or explained by the testimony of other witnesses.
F. Analysis and conclusions
1. Unlawful aid, assistance, and support
Respondent's solicitation of memberships in the SLU took two forms. Admittedly
he solicited the Dotsons, Kenny Smith , and Paris Blackburn , and discharged them
when they refused to join. And admittedly Frank Smith, Sr., solicited the employees
generally and of the total 30 employees, ended up with 14 or 19 cards, depending upon
which version of the transaction is accepted.
At the outset two distinct issues present themselves : ( 1) Frank Smith Sr.'s status
as agent of Respondent , and (2 ) Respondent's granting of majority recognition to
the SLU on the basis of 14, rather than 19 cards. If either proposition is established
Respondent's action bears further scrutiny.
LITTLE LUMP COAL CO. 1505
As to Frank Smith Sr.'s status the facts clearly depict him as the alter ego of his
son, soliciting SLU memberships in his behalf .8 Quite apart from his admission that
he took over supervision of a new mine in May 1963, thus indicating resumption of
active rather than passive interest and control of the mines' affairs, Frank Smith Sr.'s
conduct belies any suggestion that he had disassociated himself from the Company.
Indeed, a review of several elements of his close continuing connection with the affairs
of the mine as has been previously set forth, including his status as leasee of the
property and half owner of the equipment (supra), it is hardly necessary at this
point to so establish.9 In addition, Respondent admittedly was aware of his father's
activities, made no effort to stop it, and indeed acquiesced in it by commencing
negotiations with the SLU even before he received the membership cards which
Frank Smith, Sr., had solicited. Upon all of the foregoing, I conclude and find that
at all times relevant to these proceedings, Frank Smith Sr., was an agent of Re-
spondent and acting on his behalf in the conduct alleged and in which I find he was
engaged.
By thus intruding himself into the organizing affairs of his employees Respondent,
by his father's action in soliciting SLU memberships, gave effective aid, assistance,
and support to the successful organizing efforts of the SLU, thereby violating
Section 8(a)(2) of the Act, and thus interfered with, restrained, and coerced his
employees in the exercise of their statutory rights in violation of Section 8(a)(1).10
Quite apart from Respondent's unlawful aid, assistance, and support based upon
his father's activities, Respondent's recognition of the Union on the strength of
cards presented him lends support to a conclusion that Section 8(a)(2) has been
violated for other reasons as well. In the first place Respondent admits to entering
negotiations before being presented with the evidence of SLU's majority status.
As negotiations obviously presuppose recognition of the majority status of a union
with whom an employer negotiates, and as Respondent had no such evidence when
he thus had recognized SLU, his eagerness to begin negotiations with that organiza-
tion clearly discloses a variety of aid, assistance, and support proscribed by Section
8 (a) (2) and I so find.
Furthermore, I have found that, at best, only 14 authorization cards were pre-
sented. Thus I have rejected Respondent's claim that he threw five cards away,
nor do I rely upon the union representative's testimony as to the 19, he having
admittedly never checked to see if they were employees' cards. Accordingly, on
this view of the record, and entirely independent of my other findings with respect
to violations of Section 8(a) (2), I find that Respondent recognized and bargained
with the SLU knowing it did not represent a majority (coerced or otherwise) of
his employees and thereafter entered into a contract with the SLU by the terms
of which union membership was required as a condition for future employment.
Such conduct constitutes a further violation of Section 8(a)(2) and (1) and I so
conclude and find."
2. Interference, restraint, and coercion
The complaint alleges that by his SLU solicitations and the attempted threats of
reprisal and discharge Respondent interfered with, restrained, and coerced his
employees. That he did so by his own and his father's efforts in his behalf is
admitted (supra).
Nothing could more effectively enhance the SLU's hold upon the employees than
their employer's efforts in its behalf. As that organization's status is illegal to
begin with (supra), conduct in support of it necessarily partakes of the same illegality
and imposes upon the employees the sort of interference, restraint, and coercion that
has traditionally been proscribed by the Act.12 I accordingly find that by such
conduct Respondent has independently violated Section 8(a) (1).
s Compare: Fiori Brothers Oil Co., Inc ., 137 NLRB 191, wherein the Board held the
employer's son-in-law, acting with much less interest and vigor than Frank Smith, Sr.,
herein, to be the employer 's agent.
8 In finding as I do that Frank Smith, Sr., was an agent of Respondent I necessarily re-
ject the claim that lie was acting as an agent of the SLU and his testimony to that effect.
In so rejecting the claim I have given particular consideration to Frank Smith, Sr 's
admission that he never solicited the employees of any employer except Respondent
" Max Factor and Company, 118 NLRB 808, 811 ; Aacon Contracting Company, Inc,
127 NLRB 1250, 1255
It Paul M O'Neill International Detective Agency, Inc., 124 NLRB 167.
12 N.L R B, v Hudson Motor Car Company, 128 F. 2d 528 (C.A. 3) ; Malcolm Kanner
Chevrolet, Inc, and Konner Chevrolet, Inc., 141 NLRB 541,
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The discharge of Lee and Floyd Dotson
Upon the findings set forth above, Respondent in his own testimony admits to
conditioning the continued employment of Lee and Floyd Dotson and two other
employees 13 upon their signing SLU checkoff authorization cards. At this point
I reaffirm my earlier conclusion that Respondent's request for a signed authorization
was the equivalent of and tantamount to a request that they join the union. In any
event, however, I have accepted Lee Dotson's testimony that Respondent did in
fact ask all four employees to join the SLU.
When, thereafter, Respondent discharged Lee and Floyd Dotson for their refusal
to join the SLU, which I have already found to have been unlawfully aided, assisted,
and supported by Respondent, such a discharge constitutes a further violation of
Section 8(a) (2), further interfered with, restrained, and coerced Respondent's em-
ployees in violation of Section 8(a)(1), and discriminated against the discharged
employees in violation of Section 8(a) (3).14
4. The discharges of Kenny Smith and Paris Blackburn
Respondent admitted to the discharge of two other employees, neither of them
mentioned in the complaint herein, under circumstances identical to, at the same
time as, and for the same reasons as, the discharges of Lee and Floyd Dotson, both
of which I have found to be unlawful. No reason appears in the record for the
failure to include these two dischargees in the complaint except that charges were
never filed by them or in their behalf. In each charge and amended charge filed
by the Dotsons, after reciting the discharge of the individual filing the charge, there
is contained the general allegation that "by the above conduct, and other acts and
conduct, the above-named employer has interfered with, restrained and coerced its
employees in violation of rights guaranteed by Section 7 of the Act."
As there appears to be basic rights of individual employees at stake here I am
constrained to set forth all of the details concerning these employees as appears in
the record. Thus Respondent on three occasions admitted discharging Kenny Smith
and Paris Blackburn at the same time as and for the same reason as it discharged
the Dotsons, stating,
Q. (By Mr. GEORGE.) Were any other employees terminated on that
morning?
A. There were four, sir, that left the hill together.
Q. Who were they?
A. Kenny Smith of McCarr, Kentucky; Paris Blackburn of Canada, Ken-
tucky; Lee Dotson and Floyd Dotson of Ransome, Kentucky.
Q. Why were the other three discharged?
A. I spoke to them as a group, all four in a group. I never called one
individual's name. I spoke to them as you boys.
Q. You asked them to sign up?
A. My intentions were to make their troubles right and give me authority to
check off. But I signed the affidavit , spent the hours with the investigator and
signed it. It is true there.
And again,
Q. (By Mr. STAKER.) Now, following the execution of this contract between
you and the Southern Labor Union, and before you told the Complainant Lee
Dotson and the men with him to make their differences right or put their lights
up, as you have testified, had the employees, had your employees other than
these four men, made any demand upon you to discharge them because they
had refused to allow you to check off their union dues?
A. Yes, sir. They had asked me to check off, to see what could be done.
I begged the officials of the Local to give-to leave them alone and give them
more time. When 30 days were up, they asked him one morning to take
membership. They refused it. I asked the boys, I said; "Do you want me
to check off dues?"
They said; "No."
When 60 days came up, that was the morning they departed from the hill.
And finally,
TRIAL ExAMINER: Did you state in your statement to an agent of the Board
that you asked four individuals?
18 See infra, section E, 2.
14 Fiori Brothers Oil Co., Inc, supra ; Harbor Carriers of the Port of New York, at al.,
136 NLRB 815.
LITTLE LUMP COAL CO. 1507
The WITNESS: Yes, sir. There was four in the group.
TRIAL EXAMINER: Did you name those four in your statement?
The WITNESS: No, sir, I don't think so. I could have but I would have to
refresh my memory on it.
Thereafter Employee Dotson credibly testified concerning the two men, thus:
Q. And you never heard the matter discussed by any other of the employees
at all?
A. Well, just-they just said they wanted us to sign that Southern Labor
Union-me and my brother talked. We said that we weren't going to sign it.
TRIAL EXAMINER: Who is "they"?
The WITNESS: Me and my brother and Kenny Smith and Paris Blackburn.
Finally, as the General Counsel was about to rest his case he invited a stipulation
with respect to Respondent's subsequent offer of reinstatement made to the Dotsons.
This prompted me to make the following inquiry for the record:
TRIAL EXAMINER: There were two other employees who were also discharged
at that time. Was any offer made to them to your knowledge?
Mr. STAKER: No, sir. They made no Charges and the Complaint does not
comprehend that.
To which counsel for Lee Dotson, the Charging Party, directed an inquiry, stating:
Mr. BURNETTE: I don't know if the Examiner was making any inferences
from his statements about these other two people who were discharged and who
are not involved in this proceeding.
TRIAL EXAMINER: I asked simply if they were sent letters similar to the
other two.
Mr. BURNETTE: Well, I can't testify in this case.
I shall recommend that the discrimination visited upon Lee and Floyd Dotson
be adequately remedied (infra). It is evident, however, that but for the failure to
include Kenny Smith and Paris Blackburn in the complaint, they too would be en-
titled to the same relief. I am mindful, of course, that procedural difficulties
jeopardize such relief. Thus it has been recently held that when discrimination has
been factually established outside the bounds of the complaint a violation does not
lie if it appears that the introduction of proof was specifically restricted to the
allegations of the complaint, was stated to be but for background purposes, or that
the subject matter was "not otherwise sufficiently litigated to permit such findings to
be made." 15 I am persuaded, however, that the circumstances presented here differ
from those cited situations in which the Board has refused to find discrimination.
I would, therefore, in accordance with the Board's more generally applied rule
respecting such matters of proof,16 find that the issues, as they relate to the two
dischargees, Kenny Smith and Blackburn, had been fully litigated and that they
too were entitled to relief. Indeed, by the very fact that Respondent specifically
admitted to discharging the two of them for reasons which I have already found
to be illegal , nothing whatever remains to be litigated. Unless, then, General Coun-
sel's failure to include them in his complaint is per se,an impediment to a finding of
unlawful discrimination, and I am aware of no absolute in this respect,17 it would
appear that each of the named individuals have been discriminated against in viola-
tion of Section 8(a)(3) of the Act. Upon my view of the law as it applies to the
circumstances presented here, I would so conclude and find.
Moreover, it may quite reasonably be inferred that the discharges of Kenny Smith
and Blackburn for the reasons conceded by Respondent served to crystallize the
allegiance of Respondent's other employees to the ill-conceived SLU. To the extent
that it did or might be expected to, it is axiomatic that Respondent thereby interfered
11 Valley Transit Company, Inc., 142 NLRB 658. See also Local 542, International
Union of Operating Engineers, AFL-CIO (Elmhurst Contracting Co, Inc. (Division of
Hagan Industries, Inc), 141 NLRB 53
19 Granada Mills, Inc ., 143 NLRB 957; Como Plastics, Inc., 143 NLRB 151; Rocky
Mountain Natural Gas Company , Inc., 140 NLRB 1191 ; Borg-Warner Controls, Borg-
Warner Corporation, 128 NLRB 1035, 1042 ; Capitol Fish Company, 126 NLRB 980;
Carolina Mirror Corporation, 123 NLRB 1712; Monroe Feed Store, 112 NLRB 1336.
17 Cf. N.L R B. v. Brown-Dunkin Company , Inc, 287 F. 2d 17, 20 (C.A. 10) ; Peabody
Coal Company, 125 NLRB 742; Borg-Warner Controls, Borg-Warner Corporation, supra.
727-083-64-vol. 144-96
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrained, and coerced its employees, including Kenny Smith and Blackburn,
in the exercise of their statutory rights.18
A general allegation on each charge filed impugns specific conduct "and other
acts and conduct" of the Respondent. And in paragraph 4(a) of the complaint it is
alleged that Respondent interfered with, restrained, and coerced its employees by
threatening them with reprisal and discharge if they did not join the SLU. Dis-
charging Kenny Smith and Blackburn was concededly nothing more, nor less, than
a description of the "other acts and conduct" and an implementation of the threat
alleged.19 In such a context, and wholly independent of my earlier finding as to
Section 8(a)(3) violations, I find that Respondent's discharge of Kenny Smith and
Paris Blackburn additionally violated Section 8(a) (1).
In summary, therefore, it is my conclusion that as to the two discriminatorily
discharged employees named at the hearing but not alleged in the complaint Re-
$pondent has further violated Section 8(a)(3), the subject matter being, by
admissions on the record, fully litigated; and independently, has further violated
Section 8(a)(1), the subject matter being a logical extension of the general state-
ments in the charges and those specific allegations in paragraph 4(b) of the complaint.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section IV, above, occurring in connection
with the operations of the Company 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 to labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found and concluded that Respondent rendered unlawful aid, assistance,
and support to the Southern Labor Union, which in certain specified respects in-
cluded unlawful discrimination against employees, and having found that Respond-
ent has otherwise interfered with, restrained, and coerced his employees in the exer-
cise of rights guaranteed them by Section 7 of the Act, I shall recommend that he
cease and desist from such conduct or in any other manner unlawfully interfering
with, restraining, and coercing his employees.20
Affirmatively I shall recommend that Respondent withdraw and withhold all
recognition from Southern Labor Union and cease giving effect to any agreement,
or renewal thereof, with said labor organization unless and until it has been certified
by the National Labor Relations Board as majority representative of Respondent's
employees following a Board-conducted election. I shall further recommend that
Respondent offer immediate and full reinstatement 21 with backpay computed in the
customary fashion 22 together with interest at the rate of 6 percent per annum,23
to the employees whom I have found discriminatorily discharged.
I have found, as noted above, that Respondent unlawfully assisted the Southern
Labor Union not only by soliciting memberships among his employees but by re-
quiring them to join that labor organization as a condition of further employment.
In such circumstances I find that it will effectuate the policies of the Act to require
the Respondent to reimburse the employees for any dues and initiation fees thus
unlawfully exacted and I shall so recommend.24
I shall also recommend that Respondent make available to the Board, upon request,
payroll and other data necessary to compute backpay due, and that he post the
required notices of compliance with the Board's Order.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case , I recommend that Respondent , Frank B. Smith
d/b/a Little Lump Coal Co., his officers , agents, successors , and assigns, shall:
18 N L R B v. Salt River Valley Water Users' Association, 206 F. 2d 325, 329 (C.A. 9).
See also Eastern Massachusetts Street Railway Company, 110 NLRB 1963, 1972.
19 Mt Clemens Metal Products Company, 126 NLRB 1297, Crosby Chemicals, Inc,
121 NLRB 412
20 N L R B. v. Lamar Creamery Company, 246 F 2d 8 (C.A. 5).
-21 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
22 F W Woolworth Company, 90 NLRB 289
23 Isis Plumbing and Heating Co , 138 NLRB 716.
24 Double A Products Company, 134 NLRB 222; Cadillac Wire Corp, 128 NLRB 1002,
enfd 290 F 2d 261 (C.A. 2).
LITTLE LUMP COAL CO. 1509
1. Cease and desist from:
(a) Rendering aid, assistance, or support to the Southern Labor Union, or any
other labor organization, unless and until it is certified by the National Labor
Relations Board as the majority representative of Respondent's employees.
(b) Maintaining in full force and effect any agreement, or any renewal or
extension thereof, with the Southern Labor Union, or any other labor organization,
unless and until it has been certified by the National Labor Relations Board as the
representative of Respondent's employees
(c) Encouraging membership in the Southern Labor Union, or any other labor
organization, by discharging or in any other manner discriminating against em-
ployees in regard to their hire or tenure of employment, or any term or condition
of employment.
(d) In any other manner interfering with, restraining, or coercing his employees
in the exercise of their right to self-organization, to form, join, or assist any labor
organization, 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, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from Southern Labor Union unless
and until it has been certified as the majority representative of Respondent's
employees.
(b) Reimburse all employees for dues and initiation fees illegally exacted from
them in the manner set forth in the section entitled "The Remedy."
(c) Offer Lee and Floyd Dotson, Kenny Smith, and Paris Blackburn immediate
and full reinstatement to their former or substantially equivalent positions.
(d) Make whole Lee and Floyd Dotson, Kenny Smith, and Paris Blackburn in
the manner set forth in the section entitled "The Remedy."
(e) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due and the right of reinstatement under this
Recommended Order.
(f) Post at its McCarr, Kentucky, mines, copies of the attached notice marked
"Appendix " 25 Copies of said notice, to be furnished by the Regional Director of
the Ninth Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof, and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material
(g) Notify the said Regional Director, in writing, within 20 days from the receipt
of the Trial Examiner's Intermediate Report, what steps the Respondent has taken
to comply therewith 26
=6 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
w In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, I hereby notify my employees that:
I WILL NOT render aid, assistance, or support to Southern Labor Union, or
any other labor organization, unless and until it is certified by the National
Labor Relations Board as the majority representative of my 'employees.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL NOT give force or effect to any agreement or any renewal or extension
of any agreement with Southern Labor Union unless and until it is certified as
described above.
I WILL NOT encourage membership in Southern Labor Union, by discharging.
or discriminating in regard to their hire and tenure of employment or any term,
or condition of employment of any of my employees.
I WILL NOT in any other manner interfere with, restrain, or coerce my em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or any other labor organization,.
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining Or
other mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except as authorized in Section 8(a) (3)
of the Act.
I WILL withdraw and withhold all recognition from Southern Labor Union
unless and until it is certified as described above.
I WILL reimburse my employees for dues and initiation fees illegally exacted
from them.
I WILL offer Lee and Floyd Dotson, Kenny Smith, and Paris Blackburn re-
instatement to their former or equivalent job.
I WILL make whole Lee and Floyd Dotson, Kenny Smith, and Paris Blackburn.
All my employees are free to become or remain, or to refrain from becoming or-
remaining, members in good standing of any labor organization.
FRANK B. SMITH D/B/A LITTLE LUMP COAL CO.,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
NOTE.-I will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military-
Training and Service Act of 1948, as amended, after discharge from the Armed_
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati, Ohio, Telephone No. 381-1420, if'
they have any question concerning this notice or compliance with its provisions.
Peerless Distributing Company and Frank Murphy and Local'
7-389, Oil, Chemical and Atomic Workers International Union,.
AFL-CIO. Cases Nos. 7-CA-3975 and 7-CA-3975(2). Novem-
ber 13, 1963
DECISION AND ORDER
On June 19, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor-
Relations Act, the Board has delegated its powers in connection with..
these cases to a three-member panel [Chairman McCulloch and:_
Members Leedom and Brown].
144 NLRB No. 142,,,