Mine B Coal Co.

National Labor Relations Board - Board Decisions

Dec 2, 1937

4 N.L.R.B. 316 (N.L.R.B. 1937)

IN THE MATTER OF MINE B COAL COMPANY and PROGRESSIVE MINERS
OF AMERICA, LOCAL No. 54
Case No. R-361-Decided December 2, 1937
Coal Mining Industry-Investigation of Representatives : , controversy con-
cerning representation of employees: rival organizations ; substantial doubt as
to majority status ; contract with rival organization recognizing it as exclusive
representative no bar to investigation of representatives-Unit Appropriate
for Collective Bargaining : production and maintenance employees ; eligibility
for membership in both rival organizations ; no controversy as to-Election
Ordered.
Mr. Jack G. Evans, for the Board.
Mr. T. J. Sullivan, of Springfield, Ill., for the Company.
Mr. George W. Dowell and Mr. N. Y. Dowell, of DuQuoin, Ill.,
for the Progressive Miners of America.
Mr. Thurlow G. Lewis and Mr. Louis F. Gillespie, of Springfield,
Ill., for the United Mine Workers of America.
Mr. Henry H. Foster, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 20, 1937, Progressive Miners of America, Local No.
54, herein called the Progressives, filed with the Regional Director
for the Thirteenth Region (Chicago, Illinois) a petition alleging that
a question had arisen concerning the representation of bituminous
coal miners employed by Mine B Coal Company, herein called Mine
B. and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On September 16, 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 the 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.
On September 24, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon Mine B, upon the
Progressives, and upon United Mine Workers of America, Local No.
7469, herein called the United, a labor organization claiming to repre-
316
a
DECISIONS AND ORDERS 317
-sent employees directly affected by the investigation. Pursuant to
the notice, a hearing was held at Springfield, Illinois, on October
25, 26, and 27, 1937, before Charles E. Persons, the Trial Examiner
-duly designated by the Board.
Counsel for Mine B and the two unions participated in the hearing
and full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded
all parties. The Board has reviewed the rulings of the Trial Exam-
iner upon the various motions and objections made by counsel during
the hearing and finds that no prejudicial errors were committed.
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
Mine B Coal Company is an Illinois corporation engaged in the
mining of coal, with its principal office in Springfield, Illinois. The
pay roll for May 12, 1937, the last pay roll when the mine was in
production, carried a total of 476 employees, of whom 11 were clerks
and supervisors, 107 day men and 358 loaders.
During the year from July 1, 1936 to June 30, 1937, the sales
made by the Company of coal produced at Mine B amounted to
$680,928.82. Of this amount, car sales to the Chicago and Alton
Railway were $187,522.58; car sales to customers located outside the
State of Illinois were $136,376.53; car sales to customers located in
Illinois, some of whom in turn delivered the coal to interstate rail-
roads, were $212,548.28; retail sales to customers at the mine were
'$140,266.43 ; and sales for boiler fuel were $4,215.00.
Other evidence shows that from January 1 to May 31, 1937, the
Wabash Railway received from Mine B for its own use 308 cars of
coal destined for points in Illinois and 444 cars destined for states
other than Illinois; and received as commercial coal 234 cars for
points in Illinois and 284 cars for states other than Illinois.' During
the same period the Chicago and Alton Railroad received from Mine
B for its own use 457 cars of coal destined for points in Illinois and
172 cars destined for states other than Illinois ; and received as com-
mercial coal 307 cars for points in Illinois and 47 cars for states
other than Illinois.2
The Coal Report of Illinois for 1936 3 shows that of 429,160 tons
of coal produced at Mine B in 1936, the Company sold to local trade
47,535 tons, to railroads 245,696 tons, and loaded on cars for shipment
about 132,849 tons.
'Board's Exhibit No. 3-A.
2 Board's Exhibit No. 4-A.
"Boards Exhibit No. 5.
318 NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Progressive Miners of America is a labor organization formed in
1932 by a cleavage of certain members of the United Mine Workers
of America. It is now an American Federation of Labor affiliate,
having jurisdiction over a considerable number of hand-operated
mines in Illinois. The Progressives have regularly made contracts
with the Coal Producers Association of Illinois and with a number
of Independent operators, of which Mine B is one. The jurisdiction
of Local No. 54 is confined to employees of Mine B.
Local No. 7469 of the United Mine Workers of America js a labor
organization formed about July 28, 1937 and admitting to member-
ship employees of Mine B. It is affiliated with the United Mine
Workers of America which in turn is affiliated with the Committee
for Industrial Organization.
III. THE QUESTION CONCERNING REPRESENTATION
The coal fields of Southern Illinois have long been the scene of
bitter labor controversies. Since 1932, when the Progressive Miners
of America was established as a rival organization to the United
Mine Workers, the situation has been acute. The history of Mine B
presents a story of conflict between the two rival unions and between
the unions and the Company. Between 1925 and 1932 the United
was recognized by the Company. In 1932, after the Progressives
had been established, the Company, by virtue of its membership in
the Coal Producers Association of Illinois, which had a contract with
the Progressives, recognized the Progressives.
In December 1935 Mine B withdrew from the Association and on
January 18, 1936, as an independent operator, signed an agreement
again recognizing the Progressives and incorporating by reference
that union's contract with the Coal Producers Association entered
into in 1935. By this agreement, as under the previous agreement,
the Progressives were given the closed shop and check-off. The ex-
piration date of this agreement was March 31, 1937. On April 2,
1937, Mine B and the Progressives signed another agreement extend-
ing the contract of 1935 pending negotiations between the Progres-
sives and the Coal Producers Association. This agreement also pro-
vided that it was to terminate automatically upon the ratification of
a state-wide contract by the Progressives and the Association.
On July 30 or 31 the conference between the Progressives and the
Association adjourned without agreement. Mine B contends that
the agreement of April 2 terminated at this time. Subsequently
negotiations were resumed and a new contract drafted. State-wide
ratification of this contract took place on September 10. The Pro-
gressives contend that the Company was obligated under the terms
of the April 2 contract until this later date.
DECISIONS AND ORDERS 319
Meanwhile, on May 12, 1937, the Progressives called a strike at
Mine B. In the morning of that day officials of the Progressives
requested the mine superintendent to discharge five employees expelled
from the Progressives for joining the United. There is testimony
also that members of the Progressives told these men that if they
went down into the mine that day they would not come out alive.
About 2 o'clock the representatives of the Progressives returned to
the mine to find what the Company was going to do about the five
men. They were told that the Company declined to discuss the
question until such time as the mine was put in normal operation,
that during the day cars were hoisted from the mine that were only
partly loaded, and that grievances would not be considered unless
the mine was in full production. Shortly thereafter the Progressives
declared that "a legal strike was on". All operations stopped at that
time, men were hoisted from the workings and mass picketing was
begun. Picketing continued until about June 1, when "the mules
were put out to pasture".
Between May 26 and the first part of July, a petition entitled
"Designation of Representatives for Collective Bargaining under
the National Labor Relations Act" was circulated by the Progres-
sives. Signatures were procured on the picket line, at union head-
quarters, and at workers' homes by a group of recognized leaders of
the Progressives. The United contends that signatures were obtained
in large part by coercion. This petition, containing 412 signatures,
was presented to the Company on July 12.
The United likewise circulated a petition among the employees
some time in July. This petition is said to have contained "well over
300 names", but was not presented in evidence. The Company, ac-
cepting the statement of a United representative that such a petition
had been circulated, signed an agreement on August 18, when the
mine was still closed, recognizing the United as the successor of the
Progressives as the representative of its employees. On September
20, another agreement was signed recognizing the contract existing
between- the United and the Illinois Coal Operators Association as
being applicable to Mine B. By these agreements the United ob-
tained a closed shop and check-off.
Another petition dated September 10, 1937, and containing the
same title as the first, was circulated by the Progressives at the time
of the state-wide ratification of the agreement between the Progres-
sives and the Coal Producers Association; 429 signatures appear upon
this petition. There was evidence as to the second petition also that
some of the signatures were secured through coercion by members
of Local No. 54.
On Monday, September 27, after the signing of the new contract
with the United, an attempt was made to reopen the mine. The Com-
320 NATIONAL LABOR RELATIONS BOARD
pany called upon the United to furnish 50 men. The Progressives,
hearing of this, went to the mine superintendent and told him that
they had heard that the mine was to be reopened and that they would
be glad to furnish the men immediately. About 14 men went down
as United members and were engaged that day in cleaning up the
mine. When they appeared for work Tuesday morning, they found
about 100 Progressives massed at the shaft. The situation was so
threatening that a deputy sheriff, who was present to maintain order,
directed the would-be workers to go to the office and remain there all
day. Since that date the mine has remained closed.
The Progressives produced evidence showing that a representa-
tive of the Company had urged some of their members to attend
United meetings and to join up with the United. The United in turn
presented evidence to show that their efforts to obtain members had
been interfered with by the Progressives with measures of intimida-
tion and coercion. As above stated, the United also contends that the
signatures on the two petitions presented to the Company by the Pro-
gressives were secured through intimidation and coercion.
Under the circumstances, none of the petitions are fully convincing.
The atmosphere of tensity, and the circumstances existing at the
time when the petitions were circulated, created a condition where it
may well be that a clear expression of choice was impossible. At the
hearing no opposition was voiced by either union as to the holding
of an election by the Board to determine representatives for collec-
tive bargaining. We feel that a complete disposition of this dispute
can best be achieved by the holding of such an election.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, in connection with the operations of the Company described
in Section I above, has a close, intimate and substantial relation to
trade, traffic, and commerce among the several States, and tends to
lead, and has led to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The president of Local 54 of the Progressive Miners of America
testified at the hearing that Local 54 had jurisdiction over "all em-
ployees except the supervisory force, which meant the clerical force
and the bosses at the mine." The United Mine Workers admit to
membership employees in the same classification. No further ques-
tion was raised at the hearing as to the appropriate unit. We find
that the production and maintenance employees of the Company, ex-
DECISIONS AND ORDERS 321
cluding clerical and supervisory employees, constitute a unit appro-
priate 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. The check weighman employed
and paid by the union should likewise be excluded for the reason
that he is not an employee of the Company.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that an election by secret ballot is necessary to determine
the proper representatives for collective bargaining and thus resolve
the question concerning representation. Those eligible to vote shall
be the production employees of Mine B as of May 12, 1937, excluding
the clerical force and supervisory employees.
On 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 repre-
sentation of employees of Mine B Coal Company of Springfield, Illi-
nois, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. The production and maintenance employees of the Mine B Coal
Company of Springfield, Illinois, excluding the clerical force and
supervisory employees, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
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, 49 Stat. 449, and pursuant to Article III, Section 8, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Mine B
Coal Company, Springfield, Illinois, an election by secret ballot shall
be conducted within fifteen (15) days from the date of this Direction,
under the direction and supervision of the Regional Director for the
Thirteenth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations, among the production and maintenance em-
ployees, employed by the Company on May 12, 1937, excluding cler-
322 NATIONAL LABOR RELATIONS BOARD
ieal help and supervisory employees, to determine whether they desire
to be represented by the Progressive Miners of America, Local 54, or
by United Mine Workers of America, Local No. 7469, for the pur-
poses of collective bargaining, or by neither.
[ SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
January 3, 1938
On August 20, 1937, Progressive Miners of America, Local No. 54,
herein called the Progressives, filed with the Regional Director for
the Thirteenth Region (Chicago, Illinois) a petition alleging that
a question had arisen concerning the representation of bituminous
coal miners employed by Mine B Coal Company, herein called
Mine B, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On September 16, 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
the 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.
Pursuant to notice duly served upon Mine B, upon the Progres-
sives, and upon the United Mine Workers of America, Local No.
7469, herein called the United, a hearing was held at Springfield,
Illinois, on October 25, 26, and 27, 1937, before Charles E. Persons,
the Trial Examiner duly designated by the Board.
On December 2, 1937, the Board issued a Decision and Direction of
Election. The Direction of Election provides that an election by
secret ballot shall be held among the production and maintenance
employees employed by Mine B on May 12, 1937, excluding clerical
help and supervisory employees, to determine whether they desired to
be represented by the Progressives, or by the United, or by neither.
Pursuant to the Direction, balloting was conducted on December
15, 1937, under the supervision of the Regional Director. Prior to
the balloting, on the evening of December 13, 1937, the United sent
a telegram to the Board requesting postponement of the election
and stating that "United Mine Workers do not wish to participate
in an election to be held under the existing circumstances at this
time". On December 15, 1937, the United again telegraphed
the Board definitely objecting to being placed on the ballot. The
same day, immediately prior to the opening of the polls, the United
notified the agent of the Board conducting the election that the
LI]CISIONS AND ORDERS 323
United did not wish to participate in the election. The election pro-
ceeded according to schedule and with the name of the United ap-
pearing on the ballot, but the United did not furnish tellers or other-
wise participate in the conduct of the election.
On December 17, 1937, the Regional Director, acting pursuant to
Article III, Section 9, of the National Labor Relations Board Rules
and Regulations, issued and duly served upon the parties to the
proceedings his Intermediate Report on the secret ballot. This
report recites the conduct of the election and states :
The undersigned hereby certifies that said secret ballot was
fairly and impartially conducted, and that the ballots cast were
duly and fairly counted under his supervision, and that state-
ments to that effect from those tellers present have been filed
with the undersigned.
As to the results of the balloting the Regional Director found in
his Intermediate Report as follows :
Total number eligible________________________________________ 465
Total number of ballots cast_________________________________ 431
Ballots cast for Progressive Miners of America, Local No. 54___ 404
Ballots cast for United Mine Workers of America, Local 7469_ 25
Ballots cast by employees who did not desire either of the above
organizations--------------------------------------------- 2
Challenged, ballots ------------------------------------------ 0
Blank ballots cast------------------------------------------ 0
Ballots spoiled or void-------------------------------------- 0
Total ballots cast_____________________________________ 431
On December 22, 1937, the United filed with the Regional Director,
and mailed to the Board in Washington, its objections to the Inter-
mediate Report. The Board has considered these objections, to-
gether with the report of the Regional Director thereon containing
the statement of the Board's agent who conducted the election. We
find that nothing in the conduct of the election prejudiced the United
and that the results of the balloting fairly represent the desires of
the employees. Consequently we will certify the Progressives as the
duly designated representative of the production and maintenance
employees.
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations, Series 1, as
amended,
IT IS HEREBY CERTIFIED that Progressive Miners of America, Local
No. 54, has been designated and selected by a majority of the pro-
duction and maintenance employees of the Mine B Coal Company,
324 NATIONAL LABOR RELATIONS BOARD
Springfield, Illinois, excluding clerical help and supervisory em-
ployees, as their representative for the purposes of collective bar-
gaining, and that, pursuant to the provisions of Section 9 (a) of the
National Labor Relations Act, Progressive Miners of America, Local
No. 54, 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.
MR. DONALD WAKEFIELD SMrrH took no part in the consideration of
the above Certification of Representatives.