Mears Coal Co.

National Labor Relations Board - Board Decisions

May 2, 1969

175 N.L.R.B. 837 (N.L.R.B. 1969)

MEARS COAL COMPANY
Edward Mears, Charles Mears , Murray Martin and
Earl Bence, Partners, d/b/a Mears Coal
Company ; Penn Hill Coal Corporation; K and S
Coal Company , Inc., Edward Mears, Charles
Mears, Murray Martin and Earl Bence , partners,
d/b/a Dixon Run Coal Company ; Edward Mears,
Charles Mears, Murray Martin, Earl Bence,
Rocco Yanity , Anthony Yanity and Casmer
Yanity, partners , d/b/a My Coal Company;
Joseph Peles and Nestor Peles, partners, d/b/a
Peles Brothers Coal Company ; Edward Mears,
Charles Mears, Murray Martin , Earl Bence,
Harold Leasure , Russell Herby and Robert E.
Gilbert , partners, d/b/a Copper Valley Coal
Company ; John Peles , Edward Mears, Charles
Mears, Earl Bence and Murray Martin , partners,
d/b/a Chestnut Ridge Mining Company and
United Mine Workers of America , District No. 2
and Southern Labor Union, Party to the
Contracts. Cases 6-CA-4098, 6-CA-4099,
6-CA-4100, 6-CA-4101, 6-CA-4102, 6-CA-4103,
and 6-CA-4104
May 2, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 6, 1968, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
cases, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondents and Southern Labor
Union, the Party to the Contracts, filed exceptions
to the Trial Examiner's Decision with supporting
briefs and the General Counsel filed cross-exceptions
and brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
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 Trial
Examiner's ` Decision, the exceptions,
cross-exceptions, and briefs, and the entire record in
these cases, and hereby adopts the findings,
conclusions , and recommendations ' of the Trial
Examiner with the following clarifications.
We find merit in the General Counsel's cross-exception to the Trial
Examiner's failure to recommend 8 broad cease and desist order inasmuch
as the unfair labor practices engaged in by the Respondents were of such a
character as to strike at the very roots of employees' rights protected by
the Act. We shall, therefore, modify the Recommended Order and
837
We agree with the Trial Examiner's findings that
the individuals and companies named as the several
Respondents were jointly responsible for the unfair
labor practices committed at the various mines in
violation of Section 8(a)(1), (2), and (3) of the Act.
In reaching this result we view the present record as
establishing that each respective Respondent's
interest and action allied it so closely with the other
Respondents that it may be fairly inferred that the
several Respondents were acting in concert in
pursuit of the common objective of avoiding the
possibility of the United Mine Workers of America,
District No. 2 (herein referred to as the UMW)
organizing their employees, and that liability must
attach to all.'
Thus, in establishing common interests and
parallel action the record shows, as more fully set
forth by the Trial Examiner, that the Respondents
had economic, proprietary, and family
interrelationships; that the UMW had previously
conducted unsuccessful organizational campaigns at
several of the Respondents' mines; that the
Respondents were aware that the UMW was
renewing its organizational activities in the area;
that during this same period there was a persistent
rumor with which Respondents were concerned, that
a number of the electric generating plants then
under construction in the area would purchase only
union-mined coal; that although the Southern Labor
Union (hereinafter referred to as SLU) initially
contacted only Nestor Peles of Peles Brothers, the
SLU became a subject of common interest among
the Respondents considerably before any
organizational contact by the SLU with their
employees took place and before they were
presented with majority claims or contract demands
as evidenced by conversations between several of the
owners on these matters; that the same arguments,
promises and threats were used in organizing each
mine; that each mine operator accorded recognition
to the SLU in the same precipitate manner; and
that with similar haste all signed substantially
identical contracts.
The Trial Examiner held that in furtherance of
their common objective the several Respondents
violated the Act by the conduct of Donald Leasure,
Jr., Robert Dougherty, and Ronald Thornton, who
acted as the agents of the Respondents. In this
respect the Trial Examiner found that the ". . .
employees had every reason to believe that they
were speaking for management when they urged
accompanying Notice.
'Hodcarriers, and Construction Laborers' Union Local 300 (Fiesta
Pools, Inc ). 145 NLRB 911, 917-918 . See also Frontier Guard Patrol,
Inc, 161 NLRB 155, 168 , where it is stated that " [t]otally separate
enterprises , however, having some business relationship may act in concert
for a specific end. To the extent that such joint conduct proves unlawful,
joint liability may attach even though such would not be true had they
acted separately ." In enforcing the Board 's Order the Court stated that ". .
. they engaged in unitary action to serve what they apparently believed
would promote their common interests in their relationships with their
employees .... 399 F.2d 716 (C.A. 10).
175 NLRB No. 136
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in the SLU, and that they were, in fact,
acting as the Respondents ' agents in this respect."
We agree, and in determining that they were in fact
acting as agents of Respondents, we rely particularly
upon the following factors: With respect to Donald
Leasure, Jr., we note his intimate business and
family relationships with several of the Respondent
mines and their owners; the similarity of his opening
remarks on company property while soliciting
membership in the SLU' - that the mines would
have to close down if faced with the 40-cent-per-ton
royalty allegedly demanded by the UMW whereas
the operators could afford the 10-cent royalty rate
of the SLU - and remarks made by several of the
owners to the same effect; and the precipitate
manner in which recognition was accorded and
contracts were executed after Leasure had signed up
an apparent majority of the employees.
Underscoring the agency of Robert Dougherty, we
note that the authorization cards for the SLU at
Dixon Run were solicited in cooperation with
Leasure by Dougherty, who is the son-in-law of
Kammerdiener, superintendent and part owner of
the mine. Dougherty initially addressed the
employees about the SLU at a meeting called by
Kammerdiener in which the latter, before turning
the meeting over to Dougherty, asked the men "to
vote on the other union, on the SLU, if we wanted
it ... that if we didn't, it was up to us" and that he
could pay the SLU royalty per ton but if he would
have to pay the 40 cents to the Mine Workers "we
would have to quit work." In addition, Dougherty's
job classification of crew leader involved much
greater responsibilities than rank-and-file employees.
Ronald Thornton holds a position as bookkeeper
and accountant for many of the Respondents, and
his office is located in the Mears Coal offices. With
this special identity with management of the
Respondents he and Leasure appeared at several of
the mines to solicit authorization cards, while the
latter uttered remarks regarding the Unions which
were similar in import to those of the owners.' His
organizing work also received the open endorsement
and assistance of Respondents as evidenced by the
fact that at one organizational meeting at MY at
which Thornton was present, Respondents' foremen
aided the solicitors by bringing employees out of the
mine before the end of their shift and instructing the
incoming night shift not to leave, but to remain for
a meeting.
Although the solicitation for the SLU at Peles
Brothers and Chestnut Ridge was carried out
ostensibly by rank-and-file employees, the record
shows that the solicitors were personally enlisted
and under the direct supervision of Leasure in this
matter and that Nestor Peles, a part owner of Peles
Brothers, carried forward the theme of the
'Leasure openly solicited authorization cards and spoke to employees
about the SLU at Penn Hill, Dixon Run, MY, and Mears Coal.
'Thornton openly solicited authorization cards and spoke to employees
about the SLU at Copper Valley, Mears Coal , MY, and Dixon Run.
Respondents' campaign by speaking to employees
about the undesirable UMW 40-cent royalty which
he could not pay and the SLU 10-cent royalty which
would cause no problem.
In our opinion, the foregoing amply demonstrates
that the employees had every reason to believe that
Donald Leasure, Jr., Ronald Thornton, and Robert
Dougherty were speaking for management when
they urged membership in the SLU, and that they
were, in fact , acting as Respondents ' agents to enlist
the necessary employee support to enable them to
bring in the SLU as the employees' representative.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondents, Edward Mears, Charles Mears,
Murray Martin and Earl Bence, Partners, d/b/a
Mears Coal Company, Marion Center,
Pennsylvania; Penn Hill Coal Corporation, Indiana,
Pennsylvania; K and S Coal Company, Inc.,
Edward Mears, Charles Mears, Murray Martin, and
Earl Bence, Partners, d/b/a Dixon Run Coal
Company, Marion Center, Pennsylvania; Edward
Mears, Charles Mears, Murray Martin, Earl Bence,
Rocco Yanity, Anthony Yanity, and Casmer
Yanity, Partners, d/b/a MY Coal Company,
Indiana, Pennsylvania; Joseph Peles and Nestor
Peles , Partners, d/b/a Peles Brothers Coal
Company, Glen Campbell, Pennsylvania; Edward
Mears, Charles Mears, Murray Martin, Earl Bence,
Harold Leasure, Russell Herby, and Robert E.
Gilbert, Partners, d/b/a Copper Valley Coal
Company, Clymer, Pennsylvania; John Peles,
Edward Mears, Charles Mears, Earl Bence, and
Murray Martin, Partners, d/b/a Chestnut Ridge
Mining Company, Glen Campbell, Pennsylvania,
their officers, agents , successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Amend paragraph 1(h) of the Trial Examiner's
Recommended Order by substituting the phrase "In
any other manner" for "In any like or related
manner."
2. Amend the tenth indented paragraph of the
notice attached to the Trial Examiner's Decision
marked "Appendix" by substituting "in any other
manner" for "in any like or related manner."
'Continental Motors , Inc., 145 NLRB 1075, 1076-77; Everett L Harper.
A Sole Proprietorship , 169 NLRB No . 54; Fiore Brothers Oil Co., Inc,
137 NLRB 191, 192-193 ; Huberta Coal Co, et at , 168 NLRB No 22;
enfd. 408 F 2d 793 (C.A. 6); and Joy Silk Mills , Inc, 85 NLRB 1263,
1278-80, enfd . 185 F.2d 732 , 739 (C.A.D C.).
MEARS COAL COMPANY 839
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon charges and
amendments thereto filed on various dates between
November 28, 1967, and February 29, 1968, by United
Mine Workers of America, District No. 2, herein referred
to alternatively as the Mine Workers or UMW, the
Regional Director for Region 6 of the National Labor
Relations Board , herein called the Board , on March 29,
1968, issued a consolidated complaint and thereafter on
April 12, 1968, an amended consolidated complaint, both
on behalf of the General Counsel of the Board, against
Edward Mears, Charles Mears , Murray Martin and Earl
Bence, partners, d/b/a Mears Coal Company; Penn Hill
Coal Corporation; K and S Coal Company, Inc., Edward
Mears, Charles Mears, Murray Martin and Earl Bence,
partners d/b/a Dixon Run Coal Company; Edward
Mears, Charles Mears, Murray Martin, Earl Bence,
Rocco Yanity, Anthony Yanity and Casmer Yanity,
partners, d/b/a MY Coal Company; Joseph Peles and
Nestor Peles, partners , d/b/a Peles Brothers Coal
Company; Edward Mears , Charles Mears , Murray
Martin, Earl Bence, Harold Leasure, Russell Herby and
Robert E. Gilbert, partners , d/b/a Copper Valley Coal
Company; John Peles, Edward Mears, Charles Mears,
Earl Bence and Murray Martin, partners, d/b/a Chestnut
Ridge Mining Company, herein referred to collectively as
the Respondents , wherein it was alleged that they had
violated Section 8(a)(1), (2), and (3) of the National
Labor Relations Board (29 U.S.C. Sec. 151, et seq.), as
amended. In their duty filed answers the Respondents,
while admitting certain allegations of the amended
consolidated complaint, hereinafter referred to as the
complaint, denied the commission of any unfair labor
practice. Pursuant to notice a trial was held before me in
Indiana, Pennsylvania, where the parties were present,
represented and afforded full opportunity to be heard,
present oral argument and file briefs with me. Briefs were
filed by all parties, including the Southern Labor Union,
on July 5, 1968.
Upon the consideration of the entire record, including
the briefs of the parties, and specifically upon my
observation of each witness appearing before me, I make
the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
the Commonwealth of Pennsylvania.
Penn Hill Coal Corporation is a Pennsylvania
corporation with its principal place of business at Indiana,
Pennsylvania, and is engaged in the mining and nonretail
sale of coal. During the 12-month period immediately
preceding the issuance of the complaint herein it sold coal
valued in excess of $50,000 to Respondent Mears Coal
Company.
Dixon Run Coal Company is a partnership with its
principal place of business at Marion Center,
Pennsylvania, engaged in the mining and nonretail sale of
coal. During the 12-month period immediately preceding
the issuance of the complaint herein it sold coal valued in
excess of $50,000 to Respondent Mears Coal Company.
MY Coal Company is a partnership with its principal
place of business at Indiana, Pennsylvania, where it is
engaged in the mining and nonretail sale of coal. During
the 12-month period immediately preceding the issuance
of the complaint herein it sold coal valued in excess of
$50,000 to Respondent Mears Coal Company.
Peles Brothers Coal Company is a partnership with its
principal place of business at Glen Campbell,
Pennsylvania , where it is engaged in the mining,
processing and nonretail sale of coal. During the 12-month
period immediately preceding the issuance of the
complaint herein it sold coal valued in excess of $50,000
directly to points outside the Commonwealth of
Pennsylvania from its facilities within the said
Commonwealth.
Copper Valley Coal Company is a partnership with its
principal place of business at Clymer, Pennsylvania, where
it is engaged in the mining, processing and nonretail sale
of coal. During the 12-month period immediately
preceding the issuance of the complaint herein it sold coal
valued in excess of $50,000 directly to points outside the
Commonwealth of Pennsylvania from facilities within the
said Commonwealth.
Chestnut Ridge Mining Company is a partnership with
its principal place of business at Glen Campbell,
Pennsylvania, where it is engaged in the mining and
nonretail sale of coal. During the 12-month period
immediately preceding the issuance of the complaint
herein it sold coal valued in excess of $50,000 to
Respondent Mears Coal Company.
Upon the foregoing facts, admitted by all parties to this
proceeding, I conclude and find that the Respondents and
each of them are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
1. THE BUSINESS OF THE RESPONDENTS
Mears Coal Company, a partnership with its principal
office at Marion Center , Pennsylvania, is engaged in
mining, processing and nonretail sale of coal . During the
12-month period immediately preceding the issuance of
the complaint herein it sold and shipped coal valued in
excess of $50,000 directly to points outside the
Commonwealth of Pennsylvania from its facilities within
'I have considered the testimony of all witnesses , including those whose
testimony I neither accept nor refer to. In evaluating the testimony of each
witness I have relied specifically- upon his demeanor and have made my
findings accordingly . Apart from considerations of demeanor I have taken
into consideration inconsistencies and conflicting evidence . If, in any
specific instance, I have failed either to detail resolutions of conflicts or to
have analyzed specific testimony -it is for the reason that , in my judgment,
this Decision would only be to that extent encumbered , and no advantage
to the understanding of my findings would be served . Bishop & Malco,
Inc., 159 NLRB 1159, 1161.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted and I conclude and find that United
Mine Workers of America , District No. 2 and Southern
Labor Union and its constituent Local Nos. 256, 223, 259,
260, 255, 245, and 253 are now and have at all times
herein been labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
1. The employer assistance and support rendered to the
Southern Labor Union.
2. The common labor relations interests of the
individual and company Respondents.
3. The disparate attitude toward and treatment of the
United Mine Workers.
4. The interference, restraint, and coercion of
employees in their choice of a bargaining representative.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE UNFAIR LABOR PRACTICES
A. Union Organization
Union interest and activity among mining employees in
the Indiana, Pennsylvania, area was certainly no novelty
and indeed appears to have been an element of local
tradition. In this the Mine Workers has historically taken
a significant part. Thus, for example, it appears that as
recently as 2 or 3 years ago, on the occasion of the
signing of its latest national agreement, the Mine Workers
picketed a number of the nonunion mines in the area.' In
a more recent effort seeking to represent the employees of
the Penn Hill Coal Corporation, one of the Respondents
herein, the Mine Workers was defeated in a hotly
contested Board election.' Officials testified without
contradiction that during the period before and after the
events described herein they were engaged in continuing
efforts to "organize the unorganized." Most recent and
more specific, however, was the October 1967 appearance
of Mine Workers' International President W. A. Boyle at
a public meeting in the neighboring county seat of
Ebenburg, where, in the company of two other
International officers, he strongly urged the intensification
of organizing efforts in the area. This speech was reported
in the local press and was admittedly noted by at least one
of the Respondents, Kammerdiener, and discussed
thereafter by others. In addition to the foregoing there
was during the same recent period the persistent rumor,
eventually determined to be unfounded, that a number of
the electric generating plants then under construction in
the area would purchase only union-mined coal.
Upon all of the foregoing I conclude and find that at
all times relevant herein the Mine Workers was actively
organizing in the area and that this activity was known to
the Respondents.
B. The Respondents' Operations
Contemporaneous with the Mine Worker activity
detailed above the Southern Labor Union, herein referred
to as the SLU, appeared on the area scene and
contributed its share to the incidents forming the basis of
this matter. It is essential to a full appreciation of the
SLU's distinctive role in this, however, that the nature of
the several Respondents' interrelation be fully explained
for the record, and understood.
All seven of the Respondents operate mines within a
close proximity to one another and are closely related in
their working operations. Thus Mears Coal, the
partnership of Edward and Charles Mears, Murray
Martin, and Earl Bence, not only operates a strip mine of
its own but operates a coal cleaning facility and a train
loading facility, commonly known as a tipple. From this
tipplie it ships to its own customers the coal which it
mines as well as the coal which it purchases from the
nearby mines and cleans before shipment. Included among
'The testimony of Respondents Friel, Edward Mears, Gilbert, and
Kammerdiener
In numerous instances herein I have relied upon the testimony of
individual Respondents to support findings I have made In such cases it is
to be understood that I view such testimony as being peculiarly within the
individual 's knowledge or adverse to his interests in this matter I do not
mean to imply that I am thereby crediting him as a witness generally
'Case 6-RC421 in which an election was set aside by the Regional
Director upon a finding that the Company , by one of its foremen,
threatened to close the mine if the UMW won. Following the setting of a
new election the petitioner , UMW, withdrew its petition
the mines selling their entire coal production to Mears are
Penn Hill Coal Company, MY Coal Company, Copper
Valley Coal Company and Chestnut Ridge Mining
Company, all Respondents herein.
Quite apart from the integrated nature of their
operations the seven companies and owners constituted a
maze of interlocking partnership holdings, according to
the description provided by Edward Mears. Thus Mears
owns a quarter of a third interest in the Copper Valley
Mines with seven other partners, including Robert E.
Gilbert, the operator of the mine, and Harold Leasure.
Mears Coal owns one half of Dixon Run, and K and S
Coal Company owning the other half, Mears' actual share
through Mears Coal being a one eighth interest; whereas
Respondent Kammerdiener, the superintendent of Dixon
Run, owns a half interest in and is president of K and S
Coal. Mears Coal likewise owns a half interest in
Chestnut Ridge Coal, Mears' personal holdings through
Mears Coal being a one eighth interest, and John Peles,
the superintendent of Chestnut Ridge, and cousin of the
owners of Peles Brothers Coal owns the other half.
Similarly, Mears Coal owns half of MY Coal, Edward
Mears' share through Mears Coal being one eighth and
the Yanity Brothers owning the other half, with Rocco
Yanity operating the mine.
In addition to the interrelationships summarized above
it appears that the companies involved conduct their
operations and hold their land by a myriad of mutual
agreements, leases and subleases. Furthermore, each of
these mines were served by the hauling facilities of the H
and D Trucking Company which delivered all of the coal
mined to the Mears tipple for sale to Mears and cleaning
and shipment thereafter. One of the partners of this
trucking company was Harold Leasure, a part owner in
the Copper Valley Mine, and the other was Donald
Leasure, Jr., who figured prominently in the activities of
the activities of the SLU, as described hereafter.
The final Respondent, Peles Brothers, has no economic
tie with the other six, nor does it appear that they used
the Mears tipple. However, the company leases one third
of its land from Yanity Brothers, and Joseph and Nestor
Peles, the owner of the company, are cousins of John
Peles, a partner and operating manager of Chestnut
Ridge.
A consideration of the foregoing relationships
summarizing as it does extensive descriptions set forth in
the record persuades me that it would not be
overstatement to say that the Respondents herein,
individually and in their partnership or corporate status,
have interests in common and I so conclude and find.
C. The Advent of the SLU
As rumors were circulating that the local power
companies would buy only union-mined coal and as word
of UMW President Boyle's remarks were spread in the
local press there also was a stirring as far off as Oneida,
Tennessee, the headquarters of the SLU. The record is not
entirely clear as to precisely how the SLU officials came
to communicate initially with the Respondents but enough
appears to establish that the decision to venture into the
Pennsylvania coal fields for the first time and organize
only Respondents' mines was neither chance nor accident.
There is no evidence that any SLU representative had
contacted Respondents or any of their employees before
November 4. On that date Attorney Ted Q. Wilson called
a partner of Peles Brothers, Nestor Peles, whose name
was "mentioned to him," to ascertain whether this
MEARS COAL COMPANY 841
operation produced enough coal to warrant organization.
Peles, however, described Wilson' s call as an inquiry to
determine if the operation had any labor problem, and he
could not recall what else, if anything, was discussed.
Although Peles denies any hand in bringing the SLU into
the area he called Wilson on November 8, and again on
November 13. He described the first call as seeking to
learn if Wilson had started the SLU activity that he
(Peles) had heard of, and whether Wilson was responsible
for SLU talk among the employees. Wilson assured him
the SLU would cause no trouble in the area. Wilson
testified to a second call from Peles , on November 13, but
could not recall its substance; whereas Peles denied having
made the call at all. Significantly, however, Peles first
denied having any contact with SLU officials before
November 17, but he changed his testimony to describe
the November 4 and 8- calls. Considering the admitted
substance of these first two calls, namely the rumors of
SLU activities and assurances that there would be no
trouble, it is significant that except for these suggestions
of activity there is no evidence of SLU activity prior to
the arrival of a number of officials by plane at Indiana on
November 10. Thus it would appear that any fears and
premonitions that Nestor . Peles might have reported to
Wilson originated in some fashion other than through any
organizing activities among the employees themselves.
Nestor Peles' "apprehension" was not simply a matter
between him and Wilson. The SLU representatives, it will
be recalled, first appeared on the scene on November 10,
after two Wilson-Peles telephone calls. The SLU activity
at the mines, however, did not commence until
immediately before November 17. Nestor Peles,
nevertheless, had by that time sought out Harold
Kammerdiener, a partner and the superintendent of Dixon
Run, and had spoken to him about the SLU. And
Kammerdiener in turn , at or about the same time, spoke
of the SLU's activity to Edward Mears. None of these
partners involved in these conversations agree on what one
said to the other, but it is apparent from their testimony
and the testimony of partner John Peles, of Chestnut
Ridge, that the SLU's activity was a subject of common
knowledge and interest among the Respondents
considerably before they were presented with majority
claims or contract demands; and indeed, in the case of
Kammerdiener, Mears and Nestor Peles , even before any
solicitation of employee memberships into the SLU.
D. Organizing the Respondents ' Employees
1. The solicitors
By November 16, the SLU was ready to commence its
organizing campaign. SLU President Berge arrived from
Tennessee in the company of Walter Frizell, the SLU
treasurer, and Representatives Lonnie Strunk, William
Bell, and Richard Davis.
Meanwhile Frizell had given a supply of blank SLU
authorization cards to Donald Leasure, Jr., who forthwith
undertook the task of procuring signed cards from among
the employees of the Respondents' mines.
Donald Leasure, Jr.'s activity in this effort is significant
and warrants a review of his connections with the
Respondents. Thus, he was the partner of a trucking
company, H and D, which provided exclusive contract
hauling of coal from the mines of the Respondents to the
Mears tipple, and the regular hauling of the same nature
for the others. Although Donald Leasure, Jr., did not
himself own any of the mines involved herein his trucking
company partner and brother, Harold Leasure, owned a
part share in Copper Valley Mine, one of the
Respondents,' and his father, Donald Leasure, Sr., was
principal stockholder of the Respondent Penn Hill Coal
Corporation.'
Assisting Leasure in his organizing efforts were two
individuals whose connection with the Respondents was
equally significant, Ronald Thornton and Robert
Dougherty.
Thornton worked as a bookkeeper for Dixon Run,
Chestnut Ridge, Copper Valley, and Mears Coal, handling
general bookkeeping, quarterly reports and payroll. He
performed his duties at the office adjacent to the Mears
Coal tipple and did not observe regular working hours. By
arrangement with his employers he also did bookkeeping
and accounting for firms not involved in this proceeding.
Robert Dougherty, the other SLU solicitor operating
under Leasure's direction, was a crew leader at Dixon
Run Coal Company and the son-in-law of Harold
Kammerdiener, the superintendent of that Respondent
company and the part owner of Respondent K and S Coal
Company which in turn owns one-half share of Dixon
Run.
The circumstances surrounding the activities of Donald
Leasure, Jr., Thornton and Dougherty and their close
working relationship to Respondents and officials of
Respondents strongly indicate that employees had every
reason to believe that they were speaking for management
when they urged membership in the SLU, ar'i that they
were, in fact, acting as the Respondents' agents in this
respect.` Furthermore, when Leasure was being questioned
by one of the employees whose membership he was
soliciting the employee stated that he would not have
anything to do with the SLU without checking with
Yanity. Whereupon Leasure replied that he had already
talked with Yanity and "it was o.k. for him (Leasure) to
come over there and see if he could get us signed up."'
And employee Barney Walker credibly testified that on
the previous day, November 17, at the MY Coal it was
Thornton who accompanied Leasure as they solicited SLU
memberships. Thus it is manifest that in these matters
relating to the employees' union affairs and on the
numerous other occasions detailed herein each was acting
in management's behalf.' Under all of the foregoing
circumstances I, accordingly, conclude and find that
Dougherty, Thornton, and Leasure, Jr., were agents of the
Respondents, as alleged.
2. The solicitation
Leasure described his first efforts at the Penn Hill
mine. There he visited with 15 or 16 employees in and
about the mine shop on the afternoon of November 16.
He spoke to them for approximately 45 minutes in the
presence of the mine foreman. Authorization cards for 15
employees were subsequently submitted by the SLU.'
During the course of his conversation with the men
Leasure sought to convince them that the UMW was
about to put on an organizing drive and that the company
would have to close, down if faced with the 40-cent-per-ton
The undenied testimony of Robert Gilbert
'The undenied testimony of Howard E. Friel.
'N.L R B. v. Hoffman, 147 F.2d 679, 681 (C.A. 3); Continental Motors,
Inc., 145 NLRB 1075; Little Lump Coal Co, 144 NLRB, 1499, 1505
'The credited testimony of employee John B . Genta, Jr.
'Lunardi-Central Distributing Co., 161 NLRB 1443. 1450
'The testimony of Howard E. Friel.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
royalty allegedly demanded by the Mine Workers.
Leasure assured the employees that if they would select
the SLU its 10-cent-a-ton royalty requirement would be
acceptable to the operators.'°
On the same day, November 16, at Dixon Run mine
Harold Kammerdiener, superintendent and part owner of
the mine, admittedly called a meeting of the employees
between shifts so that all could attend. At this meeting,
described by Kammerdiener as a "safety meeting" and a
monthly requirement of the Home Safety Council, he told
them that one union is not allowed to picket another and
that the N.L.R.B. would stop such picketing. He then
"tried to explain the National Labor Relations Law and
the rights of the employees." Present with him during this
meeting was his son-in-law and crew leader Robert
Dougherty, enlisted by Harold Leasure, Jr., to sign up the
Dixon Run employees . After Kammerdiener' s discussion
of union problems he turned the meeting over to
Dougherty who, according to Leasure, ran into difficulties
explaining the SLU benefits and sent for Leasure.
Meanwhile Thornton had joined the group and spoke with
the men.
Kammerdiener's full participation in this effort is
noteworthy. Thus when he spoke to the men before
leaving them to the persuasions of Dougherty, Leasure
and Thornton, in addition to the admitted remarks quoted
above he asked the men "to vote on the other union, on
the SLU, if we wanted it." He told them that they would
have to organize or they would not be able to work, and
that he could pay the royalty per ton to the SLU at 10
cents but if he would have to pay 40 cents to the Mine
Workers they would have to quit work."
Later in the day Leasure, Thornton, and Dougherty
resumed their efforts to sign up the Dixon Run men. They
sought them out in their homes , and in one instance in a
grocery store. Finally they went to the mine as the night
shift was quitting and talked to the men there.
Kammerdiener testified that at about this time Leasure
telephoned to inform him that they had signed up 23 of
his employees, a majority.
At Mears Coal Co, Leasure, assisted by Thornton,
solicited the employees on the following day, November
17. Before lunch Thornton came to the mine shanty and
talked to the men about the union and, as Employee
Joseph Receskey described it, "he told me to loin it," first
talking to him in the shanty and then outdoors. Later in
the day Leasure testified that he came to the mine in time
to meet the men in the company shop, right beyond
Mears' office. When they quit work he urged them to stay
and attend a meeting with the SLU representatives.
Thereafter at this meeting, with Leasure and Thornton
also in attendance, the various advantages of the SLU
were explained and cards were passed out to the men.
Although Mears thereafter recognized the SLU (infra,) I
find nothing in the record to indicate how many of his
employees actually signed authorization cards.
On the same day, November 17, in the afternoon,
Leasure and Thornton also appeared at the MY mine.
When the men finished work on the day shift they
assembled and listened to Leasure's remarks in support of
the SLU. One advantage offered was that in the event of
the expected Mine Workers picketing in the area the men
could continue to work because the mine would not have
The credited , undemed and mutually corroborated testimony of
employees James W. Buterbaugh and Edward Scott.
"The credited testimony of employees George Fetsko and Peter Greek. I
do not credit Kammerdiener 's version of these statements
to shut down. He also emphasized that while the operators
could afford the 10-cent- royalty rate of the SLU they
could not afford the Mine Workers' rate. The men told
him they would "study it over and see what it was all
about."" Leasure returned to the MY mine later in the
day and spoke with the night shift in the company lamp
house . He reappeared at the MY mine on the following
afternoon, Saturday, November 18. Foreman Wildfire
told the men that Leasure wanted to talk to them as soon
as they had put their equipment away. Leasure asked this
group, as he had the others, if they were interested in
joining the SLU. After much discussion of the pros and
cons one of the men said that before he had anything to
do with the SLU he wanted to see Superintendent Yanity.
Whereupon Leasure assured the employee that he had
already spoken to Yanity and "he said it was o.k. for him
to come over there and see if he could get us signed up.""
Whereas organization at other mines was completed by
the weekend it continued on into the following week at
MY, with added pressure in the form of new organizers.
On Monday, November 20, Respondents Yanity and
Mears were at the mine and SLU Treasurer Frizzell
appeared and was ^iven permission to talk with the men
in the mine shop. ' Preparatory to this latest meeting
Foreman Powell, about 2:30 p.m., told the men on the
incoming night shift not to leave with their equipment but
to remain for a meeting. At the same time Foreman
Wildfire sent instructions to the men in the mine to come
out for the meeting .'s The meeting was held in the shop
under Frizzell's leadership, with Thornton present. Mears
and Yanity returned to a nearby office. Employee John
Fowler credibly described the meeting thus:
Well, mostly to start with, the man from the
Southern Labor Union explained the benefits for
joining it, what we would get out of it. From what I
could make of it, there was no - we had to do our
own bargaining, there was no set price or anything.
I mean, the union didn't have a set price, a set wage
scale, and we would have to do our own bargaining so
far as I could see on it.
So, they kept going around to each man and wanting
him to sign this card, they said they had to have 51 per
cent or it was no good.
They had a hard time getting it. We was there for, I
don't know, two or three hours; and, finally kept
badgering each guy until they got -
And when the prospects of improved pay was raised
Frizzell told them that "the men in the mines, the
committee, would have to go in and talk to the boss and
whatever he would give us, that was it." After much
cajoling and persuasion, including an assurance that on
that very evening they would negotiate a contract effective
the next morning, Frizzell finally obtained signed
authorization cards from 11 of the 18 employees.'°
At the Peles Brothers mine employee Louis Bash
solicited a total of twelve authorization cards on
November 16 from the employees there at Leasure's
request and turned them over to him. These cards were
among those thereafter submitted to the SLU officials."
"The credited testimony of employees Barney Walker and John Fowler.
"The credited testimony of employee John B. Genta, Jr
"The testimony of Yanity.
"The credited testimony of employees John Fowler and John B. Genta,
Jr
"The credited testimony of employee Fowler
"The undenied testimony of SLU President Byrge and Respondent
Nestor Peles.
MEARS COAL COMPANY
Organization of Copper -Valley mine employees was
undertaken on Friday, November 17 by Ronald Thornton,
the agent of Respondent identified previously (supra),
and SLU Treasurer Frizell. Both men asked and received
the permission of Respondent Robert Gilbert, operating
partner of Copper Valley, to talk to the men at the end of
the first shift. A second meeting was held with the men
of the second shift. At both meetings Thornton introduced
Frizzell who conducted the discussion and requested the
men to sign authorization cards. Six or seven were
signed.19 There is no indication of the number obtained
from the first-shift employees.
The Chestnut Ridge employees were solicited for SLU
authorizations by their fellow employee, Joe Plavi, whom
Leasure had personally enlisted for the job. When Plavi
solicited one of the employees, John Sturgeon, he did so
by tossing a card on the desk in front of Sturgeon, saying
"Sign it." After, some conversation between the two
Sturgeon did as he was told, but not before Plavi had told
him that signing. the card boiled down to protecting his
job. Plavi procured a total of 15 signatures at the
Chestnut Hill mine.
E. Recognition of the SLU and Subsequent
Negotiation
Armed with the signed authorization cards procured in
the manner described above representives of the SLU
immediately confronted the several Respondents with the
evidence of newly acquired status and were, in every
instance, granted the majority recognition which they
requested. The specifics of these several confrontations
follow:
Penn Hill: On November 20, the SLU organizers
visited Penn Hill and presented 15 signed authorization
cards to Howard Friel, the mine, operator, who verified
the signatures from his personal acquaintance with the
men. The 'SLU men requested and were granted
permission to hold a meeting with the men for the purpose
of organizing a local and preparing for such negotiations
as would follow. To hold this meeting the day shift men
were brought out- of the mine 20 minutes early and the
second shift was held up for the meeting. Officers and
committeemen were elected among the men and prospects
of a wage increase were discussed. The SLU people
assured them that the Company would agree to the
payment of 10 cents a top royalty to the SLU. For
themselves the men decided to ask for a 25-cent-per-hour
wage increase. In addition, most of those who had not by
then signed authorization cards were persuaded to do so.
The committee then met with Friel, representing
management. The royalty payment was accepted, as was a
union security provision requiring SLU membership for
all employees, and the check off of union dues. Friel
would not agree to the 25-cent increase but countered with
10 cents per hour; The men voted to accept this reduced
wage increase and a contract was signed on the following
day. 30
Dixon Run: On Friday, November 17 two SLU
representatives visited Superintendent Kammerdiener at
the Dixon Run mines, presented him the signed
authorization cards for 23 of his 30 employees and
requested a meeting with the employees. Kammerdiener
verified the accuracy of these cards by asking 16 or 17 of
"The testimony of Gilbert.
"The credited testimony of employee Jay Anderson.
"The credited testimony of employee Buterbaugh.
843
the employees if they had signed their cards. He then
granted permission for the meeting and both of his crew
leaders, Joe Swintoski and Robert Dougherty,
Kammerdiener's son-in-law (supra), remained to attend.
Kammerdiener first introduced the SLU men and went
home, but before he did he repeated an earlier statement
that he could not afford to pay the 40-cent-a-ton royalty
to the Mine Workers.21 An election of officers and
committeemen was held with crew leaders Swintoski and
Dougherty, being selected as committeemen together with
employee John Pluto. Kammerdiener was then summoned
from his home and within an hour executed a contract
substantially identical to the one signed by Penn Hill
(supra). Employee Pluto, the duly elected vice president
and committeeman signed the contract with the other
committeemen but took no part in the earlier
negotiations.
Mears Coal: Following the SLU solicitation of the
Mears employees on November 17 (supra) a committee
representing the employees visited Edward Mears at his
office and asked for a meeting with him. They presented
Mears with SLU authorization cards signed by a majority
of his employees. These he checked with payroll
signatures. According to Mears the meeting was held on
the following morning, November 18, at his office with
himself and his three partners present. There was a three
hour discussion on the employees' request for "quite an
increase in pay and additional benefits." The company
made a counteroffer which the employee negotiators
presented to the men. It was accepted and a contract was
executed providing for union security and checkoff which
does not appear to have been the subject of any
negotiation whatever. In substance the contract was
identical to those executed with the SLU elsewhere among
the Respondents (supra).
My Coal. Following the signing of authorization cards
at the MY mine, on Monday, November 20, as previously
described (supra) SLU Treasurer Frizzell, accompanied by
the three committeemen elected from among the MY
employees (as credibly described by Employee Barney
Walker, one of the committeemen), met with management
in the mine office. Present when they arrived there were
Respondents Mears and Yanity and Donald Leasure, Jr.
Frizzell presented signed cards for 11 of the 18 MY
employees to Yanity who verified the cards from his
personal recognition of the employees' signatures. Yanity
then told the committee, "Well, if you fellows want the
Southern Labor Union we will have to go along with the
Southern Labor Union." He then suggested that they go
out and formulate a wage rate demand and return. The
committee met with the employees and returned with their
request for a wage increase. Yanity replied that they could
not meet the undisclosed amount asked by the men but
that he would give them a 20 cent raise. Whereupon the
committee returned to the waiting employees and
presented them with Yanity's offer. In employee Walker's
words, "They decided to take that, that it was better than
nothing." No contract was signed that night but
approximately 2 weeks later, on December 1, Yanity
executed a contract with the SLU that was substantially
identical in provisions to those signed by the other
Respondents and described elsewhere herein.
Peles Brothers: On November 17 SLU Representative
William Bell and SLU President Byrge visited the Peles
Brothers mine and presented Nestor Peles the 12 signed
authorization cards previously obtained by Employee Bash
"The credited testimony of employee Peter Greek
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and given to Leasure. Upon receiving the cards Peles
inspected them and checked the signatures against tax
withholding certificates. Upon this proof he granted SLU
recognition and gave his permission for the use of the
company bath house for a meeting. At this meeting of the
employees officers and a committee were elected and
contract demands were discussed. President Byrge and
Respondent Peles met briefly at the conclusion of the
employee meeting and Peles was asked to return to the
meeting. After 15 minutes further discussion Peles agreed
to a dollar per day increase and additional vacation. He
thereupon signed a contract which included provisions for
a union-shop and dues checkoff.
Copper Valley: On Saturday, November 17, the day
following SLU Treasurer Frizzell's solicitation of the
Copper Valley employees he called Respondents Gilbert
and Herby, partners, and asked for a meeting with them.
At the meeting, which included the employees, held
shortly thereafter in a nearby school building owned by
Respondent Mears Frizzell presented them an undisclosed
number of authorization cards and requested SLU
recognition. The partners checked over the signatures with
the 17 employees present and satisfied themselves that
they were valid authorizations and represented a majority
of Copper Valley's 25 employees. The partners thereupon
recognized the SLU. They returned to their office and
were shortly thereafter joined by Frizzell and the newly
elected committeemen. Contract terms were discussed and
agreement was reached for "some small increases in
wages." The employees voted approval of the terms and a
contract was executed. This document, substantially
identical to the others executed by Respondents and
referred to elsewhere herein, also contained provisions for
a union shop and dues check off that does not appear to
have been the subject of any prior discussion or
negotiation.
F. Incidents Contemporaneous With the SLU
Organization and Recognition
Preliminary to and during the course of the SLU's
organization of the Respondent's employees numerous
incidents occurred and statements were made which relate
significantly to the overall situation. Without any attempt
at chronology or categorization illustrative instances
follow.
During the course of the SLU's campaign several
representatives of the Mine Workers visited the home of
John Pluto, a Dixon Run employee. When Pluto appeared
at work the next day Superintendent Kammerdiener asked
him if he had a couple of visitors and Pluto told him that
he had.::
Later, during the week of December 10 and after the
execution of the contract providing for a union shop
Respondent John Peles, a Chestnut Ridge partner, met
employee Russell Bearer and asked him if he had attended
a Mine Workers' meeting that had been held in nearby
Clymer several days earlier. Bearer replied that he had.
Peles then asked Bearer what was discussed.
In addition to these incidents of interrogation there
occurred throughout the campaign continual importuning
of employees by the Respondents and their Agents
Leasure, Jr., and Dougherty to avoid UMW membership
and affiliate with the SLU. It is obvious from the record
that these efforts were grounded not so much on affection
"I do not credit Kammerdiener 's denial of this conversation attributed
to him by Pluto
for the SLU or animosity towards the Mine Workers as it
was on simple economics. Thus the repeated emphasis on
the companys' willingness to pay the 10 cent per ton
royalty required by the SLU and their warning that if
they were faced with a 40 cent per ton payment to the
Mine Workers they would have to close. The details of
employee solicitations set forth above are replete with
statements which urged support of the SLU and rejection
of the Mine Workers. But by way of recapitulation or
supplement, as the case may be, the record reveals the
following:
Mears told employee Receskey that as they were a
small outfit they could not afford the Mine Workers'
demand.
In the course of his organizing efforts Donald Leasure,
Jr., told employee Edward Scott that he should join the
SLU "because the United Mine Workers are going to
come in and we can't afford to sign with that union
because it costs too much money. We have a lot of trucks
here and I can't afford to lose my trucks." Thus he was
suggesting the likelihood that the operation would shut
down, as he had when he discussed the same subject with
employee Butterbaugh saying that Penn Hill Mine would
have to close down because it could not afford the 40-cent
Mine Workers royalty. And as final illustration there was
Kammerdiener's statement to the employees at Dixon
Run, as reported by Employee George Fetsko, that unless
the men organized, presumably with the SLU, "we would
have to quit working because he couldn't afford to pay the
price of 40 cents a ton that he had to pay for the other
union, the United Mine Workers."='
G. The Organizing Difficulties of the UMW
As previously noted, when the Mine Workers last
sought recognition as representative of one of
Respondent's employees it met with opposition. Thus
when Respondent Friel, operator of Penn Hill, was
confronted with a Mine Workers request for recognition
back on 1966 he refused them and asked for a Board
election. On October 18, 1966, in Case 6-RC-4210 the
election was held, and lost by the UMW. This election
was set aside by the Board's Regional Director upon
evidence that the company, through one of its foremen,
threatened to close down the mine if the Mine Workers
won. A new election was ordered but before it was held
the Mine Workers withdrew its petition.
Since that time frequent efforts have been made, as has
previously been shown and as the Respondents were aware
(supra), to organize employees in Respondents' mines.
Illustrative of the most recent efforts were the experiences
of the UMW representatives as described by Frank Restic
and Paul Gormish, during the period of the SLU's
successes.
On November 21 Restic, in the company of two other
Mine Worker representatives, Scarton and Telk,'° came to
the Peles Brothers mine and engaged an employee in
conversation. Nestor Peles appeared and engaged
Representative Scarton in conversation. Restic credibly
testified that he heard Scarton ask Peles if the Southern
Labor Union had been around, to which Peles replied,
"Each statement recorded in this subdivision of the Decision is the
credited testimony of the employee to whom each was made or who may
have heard it. I do not credit the denials of the several Respondents, and
Leasure , to whom the respective statements were attributed
"I find it unnecessary to consider Telk's testimony concerning this or
any other matter herein
MEARS COAL COMPANY
that he had never heard of the organization and that "we
don't need any union around here." When Restic joined
the conversation Peles asked the men to identify
themselves. When they did so Peles said, "We don't need
the Southern Labor Union or the United Mine Workers
around here, and get off the property right now."
Previously the same organizers had appeared at the
Dixon Run mine with the same results. As they came onto
the property a man in a jeep drove up to them and
identified himself as "the boss." When the organizers
identified themselves he said, "You fellows are just the
men I want to see because you are a day late, the
Southern Labor Union was here. We don't want the
United Mine Workers around here and you had better
leave the property immediately."
Several days later, on November 24, Field
Representative Paul Gormish visited the Copper Valley
mine with another organizer. They met a man who
directed them to Respondent Gilbert, part owner of the
mine . Gilbert asked then to identify themselves. When
they did so he did likewise, and then stated, "We want to
know who our visitors are, as some are not welcome, and
you will have to leave."
H. Conclusions
The long arm of coincidence would most certainly be
overworked were I to conclude that the rejection of the
Mine Workers and the acceptance of the SLU was but a
natural consequence of the employees' exercise of free
choice. On the contrary, there is every reason to conclude,
based upon obvious fact, reasonable inference, and a
passing brush with the facts of life, that the overall
transaction which resulted in "instant bargaining" between
the Respondents and the SLU was contrived.
First it is apparent that the mine operators,
Respondents herein, did not want to deal with the Mine
Workers and resisted the encounter. In a hotly contended
representation election this resistence was so manifest as
to warrant setting the election aside. In the continuing
expressed fear that they would be faced with the
40-cent-per-ton royalty the resistence was underlined. And
in the singular lack of hospitality shown to visiting UMW
organizers at the several mines only the naive could say
that the UMW was generally not persona non grata with
the operators. With such studied antipathy for a base the
events detailed herein assume even more substance than is
demonstrated merely by the telling.
I have previously found the individuals and companies
alleged as the several Respondents to have interests in
common in this matter and in their operations generally
(supra), together with the three individuals, Leasure, Jr.,
Thornton and Dougherty, whom I have found to have
been the Respondents' agents and to have acted in the
Respondents' behalf in matters of labor relations. It is
clear that these individuals, working as partners in their
interrelated operations, were not only aware of the Mine
Workers' interest in organizing their employees but that
to avoid this possibility they openly solicited the SLU's
interest in their employees and helped it. Thus Peles and
Mears encouraged the appearance of SLU organizers in
the area, if indeed they did not actually initiate it. Upon
the organizers' arrival every effort was expended to make
their work fruitful. This compared with the obstacles
placed before UMW organizing efforts. Meeting places
were arranged for the SLU at the mine heads, workers
were called off their shifts early to attend SLU meetings,
845
starting shifts were held up to avoid disrupting meetings,
SLU organizers were introduced to the men, and the
virtues of joining the SLU were extolled as frequently as
membership in the UMW was decried.
This course of conduct, as outlined earlier in this
Decision in expanded form, is precisely what Section
8(b)(2) of the Act contemplates when it proscribes
unlawful aid and assistance to a labor organization.25 The
Act provides to all employees the choice of a bargaining
representative free of any interference by their employers.
When, as here, the employees are continually bombarded
with the virtues of the SLU and the evils of the UMW,
and when the SLU enjoyed all of the luxuries of "red
carpet treatment" at the expense of the Mine Workers no
extended discussion is needed to establish that the
Respondents, by the conduct which I have detailed above
(supra) has so rendered impetus, assistance and support to
the SLU's organizing campaign as to constitute assistance
in violation of Section 8(a)(2), and I so conclude and find.
Independently of the foregoing, further aspects of
unlawful assistance are apparent. Thus it is evident, not
only from the assistance rendered the SLU's organizing
efforts, but by the dispatch with which recognition,
negotiation and contract execution were accomplished,
that the SLU was the favored one. No sooner had the
respective Respondent mine operators or superintendents
been confronted with signed SLU authorization cards than
they recognized the union, giving the cards only a cursory
inspection. Contrast this with the vigor with which
Respondent Penn Hill resisted the Mine Workers in Case
6-RC-421. They then readily agreed to immediate
negotiations and each signed substantially identical
contracts that granted their respective employees benefits
differing only slightly from those they were already
enjoying. It is well established that such conduct on the
part of an employer constitutes the rendering of unlawful
assistance and support to a labor organization and I so
conclude and find.26
Additionally, the nature of the contracts signed by the
Respondents demonstrates the extent of the Respondents'
support of the SLU. Thus they not only engaged in
summary recognition, "instant negotiation," and prompt
contract execution but they gave the SLU the prized
union-security and dues-checkoff provisions which they
were never shown to have asked for. This was provided in
each contract and required as a condition of their
continued employment that each employee acquire
membership in the SLU on or before 30 days following
the date of the contract's execution. It is well settled that
by executing a contract which requires union membership
under the circumstances set forth here an employer
renders unlawful assistance and support to a labor
organization in violation of Section 8(a)(2).27
Moreover, the employees in whose behalf these
contracts were executed have, by their terms, been placed
in the jeopardy of losing their employment should they
quit the union. They have thereby been deprived of the
free choice to which they are entitled, and they have been
discriminated against by the devise of becoming liable to
discharge upon the failure to join or remain members of
the SLU. Respondents, therefore, by this conduct have
discriminated against their employees in violation of
Section 8(a)(3) of the Act, and I so conclude and find.2'
"Gem International, Inc., 137 NLRB 1343
"The Bassick Company, 127 NLRB 1552, 1561-62.
"Lunardi-Central Distributing Co., 161 NLRB 1443, 1450.
"Lunardi-Central Distributing Co., supra; Bernardi Bros. Tugboat
Service, Inc, 142 NLRB 851.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the dues extracted from the employees
under the contracts ' terms not only does such an
arrangement constitute obvious assistance to and support
of a labor organization in violation of Section 8(a)(2) but,
in addition , because the employees are thereby
involuntarily assessed a portion of their wages to support
the labor organization that was foisted upon them, they
are thereby discriminated against in further violation of
39Section 8(a)(3) of the Act.
To this point the conduct of the Respondent leading to
the organization of the employees by the SLU and
culminating in the execution of contracts with it has been
viewed as the unlawful rendering of assistance and support
of the SLU and discrimination against the employees.
Equally important is the protection of the rights of the
employees specifically as this conduct interferes with them
and restrains and coerces them . Detailed above are
• specific instances wherein individuals have been
importuned into signing authorization cards and rejecting
the United Mine Workers. In the course of this there is an
abundance of credible evidence that the individual
Respondents and their agents, Leasure, Jr., Thornton and
Dougherty, persistently invaded the privilege of their
employees to be free of interference , restraint, and
coercion in matters of union activity and preference.
Threats were made that if the UMW were selected mines
would close or jobs would be lost; these threats being both
direct, or by inference that payment of the Mine Workers
royalty would be an impossible burden. Promises of better
pay and conditions were assured if the SLU was accepted.
The impression of SLU preference was continually given
by appearing to favor it at every turn, calling the men to
meetings , providing meeting places , chasing UMW
organizers off the property, promptly recognizing and
negotiating a contract with the SLU, questioning
employees concerning UMW visitors to their homes and
the other specific incidents detailed above.
At this stage of the development of the law of labor
relations extended discussion is hardly necessary to
describe the sensitive nature of such conduct as it affects
the free choice of an employee in the selection of his
bargaining representative . Thus it is evident here that
employees here would be hardy souls indeed to opt for the
Mine Workers in the face of the pressures placed upon
them. To the extent, therefore, that these actions and
statements of Respondents exerted this pressure they
deprived their employees of the freedom of choice granted
them by the Act. As such conduct interferes with,
restrains , and coerces them in their exercise of their
statutory rights I conclude and find that the Respondents
have thereby violated Section 8(a)(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
VI. THE REMEDY
I have found that the Respondents have rendered
unlawful aid and support to the Southern Labor Union
and otherwise interfered with its administration and in the
course of such conduct unlawfully discriminated against
its employees , as well as unlawfully interrogated them,
threatened them and promised them benefits, all thereby
interfering with these employees and restraining and
coercing them in the exercise of their statutory rights. I
shall recommend that the Respondents cease and desist
from such conduct and from giving effect to the contracts
which each of the Respondent companies executed with
respective constituent locals of the Southern Labor Union,
or to any extension , modification , or renewal thereof, with
the understanding that nothing in my Recommended
Order shall be construed as requiring or permitting the
varying or abandoning of wages, hours, seniorit7, or other
substantial provisions contained in the contract. °
Affirmatively, I shall recommend that the Respondents
withdraw and withhold all recognition from the Southern
Labor Union and its constituent locals unless and until it
or any of said locals have been certified as a majority
representative of the several Respondents' employees in an
appropriate bargaining unit as a consequence of a
Board-conducted election." I shall also affirmatively
recommend that the respective Respondents reimburse
their employees for any dues, initiation fees or other
assessments withheld from their wages pursuant to the
contracts with the SLU or any of its constituents or in
accordance with any other arrangement existing between
the parties ,32 together with interest at 6 percent per annum
from the date of the first withholding or deduction."
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend" that Edward Mears, Charles
Mears , Murray Martin and Earl Bence , partners, d/b/a
Mears Coal Company; Penn Hill Coal Corporation; K
and S Coal Company, Inc., Edward Mears , Charles
Mears, Murray Martin and Earl Bence , partners d/b/a
Dixon Run Coal Company; Edward Mears, Charles
Mears, Murray Martin , Earl Bence , Rocco Yanity,
Anthony Yanity and Casmer Yanity, partners d/b/a MY
Coal Company; Joseph Peles and Nestor Peles, partners,
d/b/a Peles Brothers Coal Company; Edward Mears,
Charles Mears , Murray Martin, Earl Bence , Harold
Leasure, Russell Herby and Robert E. Gilbert, partners
d/b/a Copper Valley Coal Company; John Peles, Edward
Mears, Charles Mears, Earl Bence and Murray Martin,
partners , d/b/a Chestnut Ridge Mining Company, their
officers , agents , including Donald Leasure , Jr., Ronald
Thornton and Robert Dougherty, successors, and assigns,
shall:
The activities of the several Respondents set forth in
section IV, above , occurring in connection with the
operations of the Respondents 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 of commerce.
"Lunardi-Central Distributing Co., supra
"The Bassiek Co, 127 NLRB 1552.
"Pepsi-Cola Bottling Co, of Sacramento, 147 NLRB 410.
"Double A Products Company, 134 NLRB 222, Lunardl-Central
Distributing Co, 161 NLRB 1443.
"Compare: Isis Plumbing and Heating Co., Inc, 138 NLRB 716. See
also Glendora Plumbing , 165 NLRB No. 1; New York Local 11, National
Association of Broadcast Employees and Technicians , AFL-CIO, 164
NLRB No. 44
"In the event that this Recommended Order is adopted by the Board,
the words " Recommended" shall be deleted from its caption and wherever
else it thereafter appears ; and for the words "I recommend" there shall be
substituted , " the National Labor Relations Board hereby orders."
MEARS COAL COMPANY 847
1. Cease and desist from:,
(a) Unlawfully interrogating their employees concerning
union meetings and activities.
(b) Threatening their employees with the likelihood of
loss of employment for. joining or remaining members of
the United Mine Workers of America.
(c) Aiding, assisting , or contributing support to
Southern Labor Union or.any .of its constituent locals, or
any other labor organization of their employees.
(d) Giving effect for collective-bargaining agreements
with the aforementioned . Southern Labor Union and its
constitutent locals executed in November and December
1967, or any modification , renewal or extension thereof,
or any other collective-bargaining agreement with said
labor organizations which-now may be enforced , unless
and until said labor organizations shall hereafter be
certified by the National Labor Relations Board as the
exclusive representatives of their employees in appropriate
bargaining units; but nothing herein shall be construed to
vary or abandon the wages , hours , seniority , or other
substantial provisions of any such agreement.
(e) Recognizing the Southern Labor Union or any of its
constituent locals as the exclusive representative of their
employees for the purposes of collective bargaining unless
and until said labor organizations have been hereafter
certified by the National Labor Relations Board as the
exclusive representative of such employees in appropriate
bargaining units.
(t) Encouraging membership in Southern Labor Union
or any of its constituent locals by entering into the
aforesaid collective bargaining agreements with said labor
organization and thereby maintaining , enforcing, and
giving effect to provisions thereof requiring ^ its, employees
as a condition of employment to join or assist such labor
organization , except as permitted by Section 8(a)(3) of the
Act.
(g) Withholding or deducting from the wages of any of
its employees dues, initiation fees or other assessments to
be remitted to the Southern Labor Union or any of its
constituent locals or any other labor organization unless
such withholding or deduction is made pursuant to a duly
signed authorization of the employee involved.
(h) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
right guaranteed them by Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Withdraw and `withhold any recognition it has
granted to Southern Labor Union or any of its constituent
local unions unless and until it has been certified in the
manner aforesaid by the National Labor Relations Board.
(b) Reimburse their respective employees for the
amounts it has withheld and deducted from their wages as
dues, initiation fees or assessments to be remitted to the
Southern Labor Union or any of its constituent locals,
together with interest at six percent per annum from the
date of the withholding or deduction.
(c) Post at their respective mines at places where
notices to employees are customarily posted , copies of the
attached notice marked "Appendix .'"' Copies of the
"If the Recommended Order of the Trial Examiner is 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. If
the Board 's Order is enforced by a decree of the United States Court of
Appeals , the notice will be further amended by the substitution of the
words , "a decree of the United States Court of Appeals Enforcing an
Order," for the words, "a Decision and Order."
notices applicable to each of the respective Respondents to
be furnished by the Regional Director for Region 6, after
being duly signed by the respective Respondent's
representative, shall be posted by said Respondent at the
place previously designated and be maintained by it for 60
consecutive days thereafter. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by other materials.
(d) Notify the said Regional Director for Region 6, in
writing, within 20 days from the receipt of this Decision,
what steps the respective Respondents have taken to
comply herewith."
"In the event that this Recommended Order is adopted by the Board
this provision shall be modified to read : "Notify the said Regional
Director, in writing, within 10 days from the date of this Order, what steps
the respective Respondents have 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
Relations Act, as amended , we hereby notify our
emplo ees that:WE WILL NOT question our employees about union
meetings and activities.
WE WILL NOT threaten our employees that they will
lose their jobs if they joined or remained members of
the United Mine Workers of America.
WE WILL NOT aid, assist or contribute support to
Southern Labor :Union or any of its constituent locals,
or any other labor organization.
WE WILL NOT give effect to the collective bargaining
agreement entered into in November 1967 or December
1, 1967, with Southern Labor Union and its constituent
local, or any extension, renewal or modification of it,
or any other agreement with said labor organizations
which may now be in force unless and until Southern
Labor Union or its constituent local have been selected
by our employees in an appropriate bargaining unit by
an election conducted by the National Labor Relations
Board, but
WE WILL NOT change or abandon the wages , hours,
seniority, or other substantial provisions contained in
an such agreement.
E WILL NOT recognize Southern Labor Union or
any of its constituent locals as the exclusive
representative of our employees for the purposes of
collective bargaining unless and until it has been
selected by them in the manner described above.
WE WILL NOT encourage membership in the
Southern Labor Union or any of its constituent locals
by entering into an agreement as described above
thereby maintaining , enforcing , and giving effect to a
provision in it which requires our employees to join it
or any other union as a condition of holding their jobs.
WE WILL NOT withhold or deduct from the wages of
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of our employees dues , initiation fees or any other
assessments to be remitted to Southern Labor Union or
any of its constituent locals or any other labor
organization without having received a written
authorization to do so and
WE WILL reimburse any employee from whose wages
we have withheld or deducted monies to be remitted to
Southern Labor Union or any of its constituent locals
for the purposes aforesaid , together with interest at six
percent per annum from the date of the withholding or
deduction.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce our employees in the exercise
of rights guaranteed them by the National Labor
Relations Act.
All our employees are free to join or remain members,
or to refrain from joining , or to resign from any labor
organization, including the Southern Labor Union and the
United Mine Workers of America.
Dated By
(NAME OF RESPONDENT
COMPANY)
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1536 Federal
Building , 1000 Liberty Avenue , Pittsburgh , Pennsylvania
15222, Telephone 644-2977.