Low Moisture Coal Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1942

41 N.L.R.B. 40 (N.L.R.B. 1942)

In the Matter of Low MOISTURE COAL COMPANY, INC . and UNITED'
MINE WORKERS OF AMERICA, DISTRICT No. 23 -
Case No. R-3756.-Decided May 18, 194
Jurisdiction : coal mining industry.
Investigation and' Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition until certified by the Board; labor
organization which did not participate in the hearing, but which had executed
a contract with Company's predecessor, had demanded a contract with Com-
pany, and which had a substantial representation among Company's em-
•ployees, accorded a place on ballot provided it gives notice of its desire to
participate in the election; election necessary.
Unit Appropriate for Collective Bargaining : all persons employed in the mining,
operations of the Company as production employees, excluding superintendents,
mine foremen, section foremen,' room bosses, face bosses, entry bosses, elec-
tricians engaged in a supervisory capacity, all other supervisory -employees,
-and guards or watchmen; agreement as to.
AIr. IV. Fred Hume, of Providence, Ky., for the Company.
Mr. L. R. Fox, of Madisonville, Ky., for the U. M. W.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Mine Workers of America,
District; No. 23, herein called the U. M. W., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Low Moisture Coal Company, Inc., Providence, Kentucky,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Robert D.
Malarney, Trial Examiner. Said hearing was held at Providence,
Kentucky, on April 22, 1942. The Company and the U. M. W.
appeared and participated.' All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
' Pi ogrecsive Mine Workers of America , although notified that there was to be a
hearing, did not appear.
41 N L. R. B., No. 10.
40
LOW MOISTURE COAL COMPANY, INC. 41
.introduce evidence bearing on the issues. The Trial Examiner's
rulings, made at the hearing, are free from prejudicial errors and
are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Low Moisture Coal' Company, Inc., is a Kentucky corporation,
engaged in the business of mining coal. Since its organization on
January 1, 1942, it has produced coal having a value of approximately
$16,500. Practically all coal produced by the company moves in
interstate commerce. The Company admits that it is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Mine Workers of America, District No. 23, is a labor organi-
zation affiliated with the Congress of Industrial' Organizations,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
- The parties stipulated that a question of representation affecting
commerce had arisen in that the U. Al. W. requested the Company
to recognize it as the sole 'bargaining agent of the Company's em-
ployees, and that the latter refused such recognition unless and until
the U. M. W. has been certified by the -Board. The Company further
admits that the U. M. W. has substantial representation among the
employees in the unit agreed upon as appropriate.
We find -that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with a stipulation of the parties, that all
persons employed in the mining operations of the Company as pro-
duction employees, excluding superintendents, mine foremen, section
foremen, room bosses, face bosses, top bosses, entry bosses, electricians
engaged in a supervisory capacity, all other supervisory employees,
and guards or watchmen, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of. Section 9 (b)
of the Act.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation can best be
resolved by means of an election by secret ballot. The U. M. W.
proposes that a pay-roll period which would include those employees
working between April 15 and 30, 1942, be used as a basis for deter-
mining eligibility to vote. At the time of the hearing the Company
employed 45 persons within the appropriate unit. - It stated that
there would be a gradual increase in employment in the 60 to 90
days following the hearing and that two additional crews, comprising
22 men, might be added to the pay roll within the 2 weeks immedi-
ately following the hearing. In accordance with our usual practice,
we shall direct that those eligible to vote shall be the employees in
the appropriate unit who were employed during the pay-roll period
immediately preceding the date of our Direction of Election, subject
to the limitations and additions set forth therein.
Prior to November 7, 1941, the mine involved in this proceeding
was owned and operated by Duvin Coal' Company, which had a col-
lective bargaining contract with Progressive Mine Workers of Amer-
ica, herein called the Progressive. The Company stated that both the
U. M. W. and the Progressive had demanded a contract with the
Company. The Company further stated that the Progressive has
substantial representation among the employees in the unit agreed
upon as appropriate. In view of these facts, we shall direct that
if the Progressive desires to participate in the election, it shall notify
the Regional Director for the Eleventh Region to that effect not later
than five (5) days after the date of this Direction of Election, where-
upon its name will be placed upon the ballot. In the absence of
some such- notice, its name will not appear on the ballot.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby'
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Low Moisture
Coal Company, Inc., Providence; Kentucky, an election by secret bal-
lot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction of Election, under the
direction and supervision of the Regional Director for the Eleventh
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
LOW MOISTURE, COAL COMPANY, INC. 43
Regulations, among all employees of the Company in the unit found
appropriate in Section IV, above, who were employed during the
pay-roll period immediately preceding the date of this Direction of
Election , including employees who did not work during such pay-roll
period because they were ill or on vacation or in the active military
service or training - of the United States, or temporarily laid off, but
excluding those employees who have since quit or been discharged for
cause , to determine whether or not they desire to be represented by
United Mine . Workers of America , District No. 23, for the purposes
of collective bargaining.
In the Matter of Low' MOISTURE COAL COMPANY, INC . and UNITED
MINE WORKERS OF AMERICA, DISTRICT No. 23
Case No. R-3756
AMENDMENT TO DIRECTION OF ELECTION
May 09, 1942
On May 18, 1942, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceeding.' In its decision the Board stated that the
name of Progressive Mine Workers of America, herein called the
Progressive, would be placed upon the ballot in the election directed,
if the Progressive notified the Regional Director for the Eleventh
Region of its desire to participate therein not later than five (5)
days after the date of the Direction. The Regional Director has
advised the Board that the Progressive has notified him to that effect.
The Board accordingly hereby amends the aforesaid Direction of
Election by striking therefrom the words "whether or not they desire
to be represented by United Mine Workers of America, District No.
23, for the purposes of collective bargaining," and substituting there-
for the words "whether they desire to be represented by United Mine
`Workers of America, District No. 23, or by Progressive Mine Work-
ers, of America, for the purposes of collective bargaining, or by
neither."
141 N L. It. B 40.
41 N. L. R. B. No. 10a.
44