McKell Coal & Coke Co.

National Labor Relations Board - Board Decisions

Dec 15, 1937

4 N.L.R.B. 508 (N.L.R.B. 1937)

In the Matter of MCKELL COAL & COKE COMPANY and UNITED MINE
WORKERS OF AMERICA, DISTRICT 17
Case No. B-356.-Decided December 15, 1937
Coal Mining Industry-Investigation of Representatives: controversy concern-
ing representation of employees : majority status disputed by employer-Unit
Appropriate for Collective Bargaining: all employees working in and around the
mines, excluding company store employees, and excepting mine foremen, assist-
ant mine foremen, fire bosses, bosses in charge of any classes of labor inside or
outside the mine, coal inspectors, weigh bosses, watchmen, clerks, and members
of the executive, supervisory, or technical forces ; history of past attempts at
negotiation for collective bargaining between company and union ; existing col-
lective bargaining contracts between union and other operators in region-
Representatives: proof of choice : signed authorizations ; comparison of with pay
rolls-Certification of Representatives: upon proof of majority representation.
Mr. Albert Ornstein, for the Board.
Mr. W. K. Lee, of Fayetteville, W. Va., for the Company.
Mr. T. C. Townsend and Mr. Hillis Townsend, of Charleston,
W. Va., for the Union.
Mr. Bernard W. Freund, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On June 8, 1937, United Mine Workers of America, District 17,
herein called the Union, filed with the Regional Director for the Ninth
Region (Cincinnati, Ohio) a petition alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of McKell Coal & Coke Company, Glen Jean, West Virginia, herein
called the Company, and requesting an investigation and certifica-
tion of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On October
5, 1937, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section 3,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
508
DECISIONS AND ORDERS 509
On October 15, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
Union. Pursuant to the notice, a hearing was held on November 1,
1937, at Beckley. West Virginia, before Robert M. Gates, the Trial
Examiner duly designated by the Board. The Board, the Company,
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and to cross-
examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. The Board has reviewed the rulings of the Trial
Examiner on objections to the admission of evidence made during the
course of the liearin; and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
McKell Coal &C Coke Company, a West Virginia corporation, with
its principal office at Glen Jean, in Fayette County, West Virginia,
employs about 650 men in its business of mining and selling bitumi-
nous coal and slack. Its three mines, at Siltix, Oswald, and Tamroy,l
are located at approximate distances of three, six and eight miles,
respectively, from Glen Jean.
At the mines, in a more or less continuous progression of operations,
coal and slack is blown loose from the walls, sorted, loaded into mine,
cars, hauled to the surface, weighed, screened, graded, dumped into
waiting railroad cars, and taken away by railroad for delivery to
purchasers. About three-fourths of the railroad cars loaded each day
are billed out and in transit to consignees by nightfall.
Approximately 95 to 98 per cent of all coal and slack shipped by the
Company, which in the year ending October 1, 1937, amounted to
475,000 tons, is consigned to points outside West Virginia. In Sep-
tember 1937, a normal month, all, or virtually all, of the shipments
made by the Company went to destinations in Virginia, Ohio, Indi-
ana, Illinois, Michigan, Iowa, Minnesota, South Dakota, Wisconsin,
and Massachusetts.
Besides its mining activities, and incidental thereto, the Company
owns and operates three general merchandise stores : one at Tamroy,
another at Oswald, and a third at Kilsyth. During the year ending
October 1, 1937, the Company made purchases for them aggregating
$228,492.73; of these, over $9,000.00 was for explosives, detonating
caps, shovels, picks, and other tools and equipment used in the mines
which, by custom in the industry, the miners buy for themselves. In
I Until it was abandoned in August 1937, a fourth mine was operated at Kilsyth.
510 NATIONAL LABOR RELATIONS BOARD
addition, and separate from store purchases, the Company spent
$84,158 20 for railroad ties, machine replacements, coils, wire, spikes,
staples, sand, and other materials necessary for its coal mining oper-
ations. Of its total store and mine purchases during the described
period, amounting to $312,650.93, 28.8 per cent were shipped to the
Company from points outside West Virginia.
IT. THE ORGANIZATION INVOLVED
United Mine Workers of America, District 17, is a labor organiza-
tion admitting to its membership employees working in and around
coal mines.
ITT. THE QUESTION CONCERNING REPRESENTATION
The Union first extensively organized the region in which the Com-
pany is located in 1933. It now claims to represent practically all the
Company's employees. No other labor organization claims to repre-
sent any of them. In 1933, again in 1935, and, most recently, in April
1937, the Company refused to comply with requests of the Union to
bargain collectively in respect to conditions of employment.
At the last meeting between the Company and the Union, accord-
ing to the testimony of a Union official who was present, the reason
advanced by Company officials for refusing to discuss a bargaining
contract was that they doubted whether the Union represented the
men. In letters sent to the Regional Director shortly after the peti-
tion herein was filed, the Company stated that it had not questioned
the authority of the Union to represent its employees, and did not
expect to do so; it further stated that it was not in a position to
enter into an agreement that the Union be recognized as, sole bar-
gaining agency.
Under the provisions of Section 8 (5) of the Act, it is an unfair
labor practice for an employer to refuse to bargain collectively with
the representatives of his employees. The Company has refused to
bargain collectively with th6 Union. Upon the record in this proceed-
ing, we interpret the Company's words and conduct as reflecting un-
certainty regarding the status of the Union as a representative of its
employees, rather than as evincing an intention willfully to violate
the provisions of the Act.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
thus arisen, occurring in connection with the operations of the Com-
DECISIONS AND ORDERS 511
pany described in Section I above, has a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
It is the custom in .the New River bituminous coal region, in
which the Company's mines are located, to consider employees work-
ing in and around all mines of each coal company as one unit for the
purposes of collective bargaining. This custom has been followed
in past attempts at negotiation for collective bargaining between the
Union and the Company, it having been understood that store em-
ployees were not included in the unit. The Company has raised no
objection to the Union's request that the practice be continued.
Existing collective bargaining agreements to i;•hich the Union and
substantially all the coal operators in the New River region, other
than the Company, are parties contain an express provision excepting
from their operation all mine foremen, assistant mine foremen, fire
bosses, and bosses in charge of any classes of labor inside or outside
of the mine; and coal inspectors, weigh bosses, watchmen, clerks,
and members of the executive, supervisory, or technical forces. The
unit contended for by the Union excepts the same classifications.
The Company made no objection to the proposal. Our determina-
tion of the appropriate unit will follow these lines.
We find that all employees of the Company working in and around
its mines, exclusive of store employees, and excepting mine foremen,
assistant mine foremen, fire bosses, bosses in charge of any classes
of labor inside or outside of the mine, coal inspectors, weigh bosses,
watchmen, clerks, and members of the executive, supervisory, or tech-
nical forces of the Company, constitute- a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Pay roll lists were supplied by the Company, giving the names and
labor classifications of all employees as of June 4, 1937, and as of
October 28, 1937; and cards signed by persons representing them-
selves to be employees of the Company, authorizing the Union to
act as their sole bargaining agency, were introduced into evidence
without objection. Most of these cards appear to have been signed
between October 20, 1937 and November 1, 1937. Neither the Com-
pany nor the Union having expressed any preference, the.Board has
512 NATIONAL LABOR RELATIONS BOARD
used the Company's list of October 28, 1937, in-checking the authori-
zation cards against pay roll. On that day there were 659employ-
ees on the Company's pay roll; of these, 44 fell into excluded n•
excepted classifications, leaving 615 employees in the appropriate
unit.
Of the 413 authorization cards introduced by the Union to prove
its majority, only 11 were signed by persons whose names do not
appear in the pay roll list of October 28, 1937; two were duplicates
of other cards ; and three bore illegible signatures. At the hearing.
competent witnesses identified 380 of the remaining 397 cards as hav-
ing been signed in their presence by employees of the Company.
We find that the Union has been designated and selected by a
majority of the employees in the appropriate unit as their representa-
tive for the purposes of collective bargaining. It is, therefore, the
exclusive representative of all employees in such unit for the purposes
of collective bargaining, and we will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of McKell Coal & Coke Company, Glen
Jean, West Virginia, within the meaning of Section 9 (c), and Sec-
tion 2 (6) and (7) of the National Labor Relations Act.
2. All employees of the Company working in and around its mines,
exclusive of store employees, and excepting mine foremen, assistant
mine foremen, fire bosses, bosses in charge of any classes of labor
inside or outside of the mine, coal inspectors, weigh bosses, watchmen,
clerks, and members of the executive, supervisory, or technical forces
of the Company, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
3. United Mine Workers of America, District 17, is the exclusive
representative of all the employees in such unit for the purposes ' o f
collective bargaining, within the meaning of Section 9 (a) of the
National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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 1, as amended,
IT IS HEREBY CERTIFIED that United Mine Workers of America, Dis-
trict 17, has been designated and selected by a majority of all
DECISIONS AND ORDERS 513
employees of McKell Coal & Coke Company , Glen Jean , West Vir-
ginia, working in and around its mines , exclusive of store employees,
and excepting mine foremen, assistant mine foremen , fire bosses,
bosses in charge of any classes of labor inside or outside of the mine,
coal inspectors , weigh bosses , watchmen , clerks, and members of the
executive , supervisory , or technical forces of the Company , as their
representative for the purposes of collective bargaining and that,
pursuant to the provisions of Section 9 (a) of the Act, United Mine
Workers of America, District 17, is the exclusive representative of all
such employees for the purposes of collective bargaining in respect
to rates of pay, wages , hours of employment, and other conditions
of employment.