Miners Coal Co.

National Labor Relations Board - Board Decisions

Aug 5, 1955

113 N.L.R.B. 465 (N.L.R.B. 1955)

MINERS COAL COMPANY 465
or educational background or as to degree of skill, if any required of
them by their work on experimental equipment. Whatever special
aptitude they may possess for this work appears to have been acquired
primarily as a result of the experience they acquired at their job.
Under these circumstances, we find that the maintenance employees
at the Pine Street plant are not technical employees within the meaning
of the Act, and we shall therefore include them in the unit.'°
Leadmen: The Employer would exclude leadmen from the unit on
the ground that they are supervisors as defined in the Act.
At full production, the Employer employs a total of 9 leadmen,
who, with 3 foremen, are in charge of a total of approximately 75
employees on the third floor of the Pine Street plant. Leadmen are
paid 25 cents an hour more than the other employees. They have the
authority to replace, or to recommend to their foremen the replacement
of, employees who do not properly perform their jobs. They can
effectively recommend the discipline and discharge of employees and
are called upon to make independent judgments in making those
recommendations. We find that the leadmen are supervisors as defined
in the Act, and we shall therefore exclude them from the unit.ll
Accordingly, we find that all production, maintenance, and ware-
house employees at the Employer's three plants at 2622 Pine Street,
Eighth and Spruce Streets, and 308 South Eighth Street, in St. Louis,
Missouri, including materials handlers, the truckdriver, toolroom em-
ployees, the injection maintenance molding helper, maintenance em-
ployees at the Eighth and Pine Street plant, shipping clerks, and
quality control personnel, but excluding the inventory clerk and other
office clerical employees, professional employees, the laboratory engi-
neer, guards, watchmen, toolroom supervisor, the injection maintenance
molding man, the quality control personnel supervisor, foremen, fore-
ladies, leadmen, and other supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
so Goodyear Enganeerivag Corporation, footnote 5, supra.
u There was uncontradicted testimony in the record that the authority of the leadmen
has been considerably increased since the date of the Board's earlier decision (footnote 2,
supra) in which the Board found that the leadmen were not supervisors. The present
record clearly shows that the leadmen now have the power to "effectively recommend dis-
,charge or discipline of employees."
Miners Coal Company and John R. Smith, Homer Cartwright, Jr.,
Reuben S. Smith , Wilma Smith . Case No. 9-CA-867. August 5,
1955 -
DECISION AND ORDER
On April 7, 1955 , Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
113 NLRB No. 55.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set' forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report; the Respondent's exceptions and brief, and the eii
tire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following ad-
ditions :
1. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8 (a) (1) by discharging Cartwright, John
Smith, and Reuben Smith for discriminatory reasons. However, in
addition to the facts specifically relied on by the Trial Examiner;
we also rely on the following : Superintendent Fugate's investigation,
upon first learning of the petition, consisted only of questioning em-
ployees and supervisors as to its contents and the names of the em-
ployees involved, and searching Cartwright's clothing for a copy
of the petition; he was not concerned with, nor does the record show;
that circulation of the petition had any effect on production or safety.
The choice of Cartwright as one of the employees to be discharged
is further evidence of the Respondent's illegal motive, because Cart-
wright did not circulate the petition nor engage in any related ac-
tivity during the time when he or other employees should have been
working; he was, however, the one who set this concerted activity
in motion. As he, as well as the Smiths, shared the general ignorance
of th8 existence of any no-solicitation rule, there is no basis for the
Respondent's contention that they were responsible for its alleged
violation by others. Nor do we find merit in the Respondent's conten-
tion that the no-solicitation rule applied only to actual worktime,
and, as supervisors had not circulated petitions while employees were
working, no discriminatory enforcement was involved. The rule, as
defined by President Snarr and Supervisors McCormick and Dupree,
made no such distinction, and it was unknown to the employees in
any form'
1 The Respondent also filed a motion to reopen the record, as to events occurring subse-
quent to the instant hearing , to which the General Counsel filed an opposition . In view
of the basis for the Board 's decision herein with respect to the violation of Section 8 (a)
( 1), we find that the proffered evidence is immaterial The motion is therefore denied.
The request for oral argument by the Respondent is also denied as the record , including the
exceptions and briefs , in our opinion , adequately presents the issues and the positions of
the parties
2 In the absence of exceptions thereto , we adopt without comment the Trial Examiner's
findii1gs,-expressed and implied , that the Respondent did not otherwise violate the Act.
However, in view of ,the nature of the unfair labor practices committed by the Respondent
in discriminatorily discharging three employees because they engaged in protected con-
MINERS COAL COMPANY
ORDER
467
r i
Upon the, entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Miners
Coal Company, Madisonville, Kentucky, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discharging its employees, or in any manner discriminating in
regard to their hire or tenure of employment, because they engage in
concerted activities for the purpose of • collective bargaining or other
mutual aid or protection.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed, activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies.of the Act:
(a) Make'whole Homer Cartwright, Jr., John R. Smith, and Reu-
ben S. Smith for any loss of pay suffered by reason of the discrimina-
tion against them in the manner set forth in the section of, the Inter-
mediate Report entitled "The Remedy" as modified herein .3
(b) Post at its coal mine and plant in Fies City, Kentucky, copies
of the notice attached hereto marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director or.Acting Regional
Director for the Ninth Region, shall, after being duly signed by the
Respondent's'representative, be posted by it immediately upon receipt
thereof, and maintained for sixty (60) consecutive days thereafter in
-conspicuous places including all places where notices to employees are
`customarily posted. Reasonable steps shall be taken by Respondent
to insure that such notices are not altered, defaced', or covered by any
other material.
certed activity , a type of unfair labor practice which goes to the very heart of the Act,
we shall order the Respondent to cease and desist from such acts and from interfering in
any other manner with the rights of employees guaranteed by Section 7 of the Act. Salt
River Valley Water Users Association, 99 NLRB 849 , enfd. 206 F . 2d 325 (C. A. 9).
a The record shows,, contrary to the; Trial Examiner , that Reuben Smith was not offered
reinstatement until January 14, 1955, and that he . declined the offer on the same day.
The section of-the Intermediate Report entitled "The Remedy " is therefore modified to
terminate his back pay on that date instead of on January 10, 1955.
41n the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Upon request make available to the Board and its agents all
timecards, payrolls, and other records necessary to'analyze, compute
and determine the back pay and other emoluments to which Homer
Cartwright, Jr., John R. Smith, and Reuben S. Smith may be entitled
under the requirements of this Order.
(d) Notify the Regional Director or Acting Regional Director for
the Ninth Region (Cincinnati, Ohio) in writing, within ten (10) days
from date of this Order, what steps Respondent has taken to comply
herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discharge our employees, or in any manner dis-
criminate in regard to their hire or tenure of employment, because
they engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
EVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in.the exercise of their right to self-organi-
zation, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may
be affected. by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL make whole John R. Smith, Reuben S. Smith, and
Homer Cartwright, Jr., for any loss of pay suffered as a result
of our discrimination against them.
MINERS COAL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
MINERS COAL COMPANY
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
469
This proceeding authorized by Section 10 (b) of the National Labor Relations Act,,
61 Stat . 136, as amended (29 U. S . C. Supp . 5, Section 141, et seq :), herein called
the Act , was heard before the Trial Examiner , duly designated by the Chief Trial
Examiner , at Madisonville , Kentucky , on February 16 and 17, 1955 , pursuant to
notice to all parties. All parties were represented at the hearing, were afforded full
opportunity to be heard , to examine and cross-examine witnesses, to introduce evi-
dence relevant , and -material to the issues involved , to argue orally upon the record,
alid to file written briefs and/or proposed findings and conclusions . A written brief
was thereafter filed only by counsel for the Respondent , and has been given due
consideration.
Pursuant to a charge filed on September 27, 1954 , by individuals , John R . Smith,
Homer Cartwright , Jr., Reuben S. Smith , and Wilma Smith , the General Counsel
of the National Labor Relations Board , herein separately designated as General
Counsel and the Board , issued a complaint on December 20, 1954, alleging that
Miners Coal Company, herein called Respondent , engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) of the Act„
and affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act.
Copies of the charge , the complaint , and other pertinent processes were duly served
upon the Respondent , who in due course filed an answer admitting that it is engaged
in commerce , but denying all allegations of unfair labor practices.
With respect to unfair labor practices , the complaint alleges in substance that
Respondent interfered , with , restrained , and coerced its employees in the exercise-of
the rights guaranteed in Section 7"of the Act by interrogating them concerning their
protected concerted activities , and discriminated in regard to hire and tenure of em-
ployment by discharging its employees , John R . Smith, Homer Cartwright , Jr., and
Reuben S. Smith , because they sponsored and caused to be distributed among other
employees a petition to Respondent concerning rates of pay and engaged in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection.'
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Miners Coal Company is a corporation organized and existing under and by virtue
of the laws of Kentucky , having its main office and place of business at Madisonville
in said State . In the same vicinity Respondent is engaged in the operation of a coal
mine at Fies City, Kentucky. During the calendar year 1954, Respondent sold,
shipped, and delivered coal valued in excess of $1,500,000 from its Fies City coal
mine directly to points outside the State of Kentucky . It is admitted and I find that
Respondent was at all times material herein engaged in commerce within the meaning
of Section 2 (6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
There is no labor organization , formally organized as such, involved in this
proceeding.
III. THE UNFAIR LABOR PRACTICES
A. Mining operations
In 1949 the Respondent opened its coal mine at Fies City, Kentucky , and has there-
after employed approximately 300 men on an open -shop basis . The mine is con-
tinually operated in 3 shifts of 8 hours each , and employees are paid an hourly wage-
from portal to portal. In addition to the hourly wages, the Respondent for several
years paid a royalty of 30 cents pee ton on all coal produced , which was distributed on-
a pro rata basis to employees . In addition , Respondent contributed a royalty of 10
cents per ton to a welfare or insurance fund . In the early part of 1954 , Respondent
unilaterally adopted it profit -sharing plan , and abandoned the royalty payments sup-
plementary to wages. This profit -sharing plan provided less take -home pay than the
royalty payments theretofore received by the employees.
1 The charge with respect to Wilma Smith was dropped.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Work in the.inine is completely mechanized with modern equipment .. Employees
working underground in the mine are organized into units of approximately 12 men
each under the supervision of a face boss, who is admittedly a supervisor within the
meaning of Section 2 ( 11) of the Act. A unit is ordinarily composed of cutting
machine operators , drillers, shooters ; • stopers, shuttle ' car operators , and a loading
machine operator . Production is measured by the tonnage of coal loaded for ship-
ment. Mechanics work independently in the maintenance of equipment . Work in
the mine moves in a cycle. In sequence the cutting machine operators , drillers, and
shooters operate upon the solid face of the coal , causing it to fall in broken lots suit-
able for loading . The loading machine operator moves in and with his machine loads
it on motorized shuttle cars . Shuttle car operators maneuver their vehicles into posi-
tion for loading, and thereafter dump the coal upon a movingibelt or other conveyors
by means of which it is transported above ground . It is the duty' of stopers to secure
the overhead ceiling within the mine by the use of bolts and other materials to-prevent
collapse.
On the premises above ground Respondent provides a bathhouse with showers
and clothes hangers or baskets where .'the miners don their work clothes before
entering the mine and also clean up after work hours . At the beginning of each
shift the workers assemble in units outside the mouth of the mine. They enter
the mine on foot `and proceed to a lower level called the bottom . From there each
unit in charge of its face boss is transported in a motorized vehicle considerable
distances underground to an unloading point near the face of the coal. This
journey is called a "man trip ." Upon detraining , the face boss proceeds immediately
to the face of the coal to test for gas, while his operators make ready for work-with
their equipment . Theoretically there is no delay and the loading of coal is con-
tinuous throughout the shift . No break periods are permitted except a staggered
lunch period of . 30 minutes on company time. In practice , however, frequent delays
of short duration do occur by reason of face preparation , trip change outs , mechanical
trouble, equipment conflicts , procurement of supplies , removal of obstacles , defective
coordination , etc. In an effort to eliminate delay in loading time , Respondent
makes frequent time studies to remedy the situation , because such delays necessarily
reduce production . A typical time study of a regular 8=hour shift on October 19,
1954, was introduced in evidence by Respondent to show that 35 .83 percent ofI the
entire shift was consumed by nonloading time.
B. Disciplinary rules and practices
All supervisory personnel of Respondent including the face bosses are licensed by
the State of Kentucky as a prerequisite of employment, and the Respondent em-
ploys a full-time safety director. Respondent has published and posted written rules
to prohibit fighting, smoking, and the carrying of inflammable materials into the
mine and has ^ delegated to its supervisors the maintenance of other disciplinary
measures to promote safety and production. President Kenneth Snarr credibly
testified that Respondent has an unwritten rule against solicitation in the mine, and
that on' several occasions he has personally instructed his office manager and the mine
superintendent' to prohibit solicitation of employees and the, circulation of docu-
ments underground. Respondent permits its face bosses to sell raffle tickets for the
benefit of miner welfare organizations. On many occasions Respondent has pre-
pared and circulated written authorizations for deductions from pay as donations
to the families of its employees in cases of sickness or death. To encourage such
donations Respondent customarily agreed to match all deductions in pay by con-
tributions from its own treasury. The face bosses customarily made such solicita-
tion around the bathhouse and at other times when the men were not actually at
work in the mine. Several witnesses , including Homer Cartwright, Jr., Ruby Davis,
Charles Duff, Willie Killough, James C. Oldham, John R.,Smith, and Reuben S.
Smith, credibly testified, however, that they had often observed and been solicited
by the face,bosses during working hours in the mine, and that they.had no notice of
any company rule to prohibit such conduct. Sometimes contributions were solicited
in the mine to purchase Christmas gifts for the supervisors, who in turn gave gifts
'to the employees. Other witnesses, including Marian Marks,- Harold Whitmer,
Harold Taylor, and Walter Higgins, testified that they had been solicited only at the
bathhouse or other places above round. Face Boss Kenneth 'Dupree admitted that
on one occasion' he sold raffle tickets to Reuben S. ' Smith' in' the mine during the
lunch hour. .
C. The concerted activities
On Friday, August 20, 1954, a group of employees, including Paul Allen, Thomas
Brown, Homer Cartwright, Jr., A. Cummings, Ruby Davis, Raymond Miller, James
i' , , . ., -' MINERS, COAL COMPANY, - , . • I,. - 471
Smith, and John R. Smith, discussed and proposed that their, Employer (Respondent)
be requested to restore the tonnage royalty payments in lieu of'the profit-sharing plan.
Homer Cartwright, Jr.; proposed and agreed to prepare a petition to that effect for
-presentation to Respondent. During the, weekend he prepared such a, petition and
,brought 16 copies to the mine premises on Monday, August 23, 1954, reading as
follows:
TO: Officials of Miners Coal Company
The, undersigned, all employees of Miners Coal Co., who ' are entitled to
Health and Welfare payments on tonnage produced, do hereby make it known
by their signature the dissatisfaction and discontent over nonpayment of same.
We believe that we are entitled to full payment of royalities due to Non
Union Working Conditions. Union employees,do' at least have. their pensions
whereas we are getting nothing or at least a small part every other month.
We would like a meeting with the management to discuss these problems
and to workout a satisfactory working'agreemeht as soon as possible.
Cartwright delivered eight copies to John 'R. Smith and additional copies- to James
C. Oldham and others for the purpose of obtaining thereon the signatures of em-
ployees on their respective shifts. Cartwright retained two copies which were- left
in his clothes at the bathhouse. John R. Smith in turn distributed copies to Raymond
-Miller, Ruby Davis, and'James Loven for the same purpose. At least six copies
of the royalty petition were thereafter circulated in the mine, and were introduced in
evidence`as'General Counsel's Exhibits Nos.- 2-A, B, C, D,,E, and F. Copy identified
-as -General Counsel's Exhibit No.' 2-A contains 17 signatures,- including Face- Boss
James Morgan. One of the signers (Charles Duff) credibly testified that he.first saw
the paper lying on a bench, where it was signed by Mechanic J. C. Landers and called
to the attention of others. Copy_ identified as General Counsel's Exhibit No. 2-B
contains 12 signatures including in first place the name of Everett Palley, who was
either at that time or later a face boss. Copy identified as General Counsel's Exhibit
No. 2-C was carried into the mine by John R. Smith, laid on top of the motor at the
end of the man trip, and there signed by himself and others, including Face Boss
Thomas Bearden . This copy contains a total of 13 'signatures . Copy identified as
General Counsel's Exhibit No. 2-D contains 10 signatures, including Paul Allen,
who was present, in the original group of employees at the mouth of the mine on
August 20, 1954, when the, circulation of a petition was first proposed and agreed
-upon. -Copy, identified as General Counsel's Exhibit No. 2-E contains 19 signatures
and was signed first by James C. Oldham, who had been presented with a copy by
Homer Cartwright, Jr., -prior to entering the mine. Copy identified as General
`Counsel's Exhibit No.- 2-F, contains 22 signatures and was, signed first by Homer
Cartwright, Jr., at the mechanics shop in the mine during his lunch period. At that
time he read the petition aloud to other employees, and remarked "Well, I'll be the
"first to sign it." At quitting time he presented the same copy to Reuben S. Smith,
whose signature' appears last thereon. Reuben S. Smith credibly testified that he
presented a copy of the petition to Face Boss Joe Head, but that Head refused to sign
it because he-was a supervisor. If is significant that face bosses of the Respondent
raised no objections to circulation of the petition in their presence and three of them
.placed their signatures thereon. When the petition was presented to Face Boss Ken-
neth•Dupree by Ray Smith (employee), he,read and handed it back, saying: "Don't
you know that you are not suppose, to pass anything down here while working? I
can't sign this paper." He also inquired of Ray Smith whether the mine superin-
tendent knew about the petition, but, took no,timely action,. and made no report to
higher officials until the next day. At that time he discovered that Superintendent
Fugate had already been apprised of the incident?
D. The discriminatory discharges,
From uncontradicted testimony it appears that Mine Superintendent Fugate 'made
an investigation to determine which employees were primarily responsible for circu-
lation of the petition ,in the mine. In company with Safety Director Sterling Harris,
Foreman Charles Hicklin, -and Office Manager Yates, he searched the clothing basket
of Homer Cartwright; Jr., and found copies of the petition therein. Thereafter,
Fugate showed a copy to Assistant Mine Superintendent Wynn McCormick. Fugate
made inquiries of employees Audrie Sellers, Charles Duff, and Willie Killough con-
cerning the petition'and expressed, displeasure because of their reluctance to furnish
•2 Superintendent Fugate did not appear as a witness at the hearing.
379288-56--vol. 113''=31" ' -' , . -' '
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information . McCormick later told Duff that Superintendent Fugate thinks you
have "let him down," and that it would simplify matters for him to tell all he knew
about it. Foreman Rudolph Kirkwood told James C. Oldham that he was going to
be discharged on account of the petition , but when Oldham approached Superin-
tendent Fugate he was told, "When your foot gets well come on back to the mine and
your job is waiting for you. When you're fired, I'll tell you when you're fired." Old-
ham was at the time disabled for work on account of an injured foot. Superintendent
Fugate reported to President Snarr that John R. Smith, Reuben S. Smith, and Homer
Cartwright," Jr., were the parties responsible for circulation of the petition. Snarr
expressed the'opinion that they had violated a rule of the Company and should be
discharged. Face Boss Kenneth Dupree reported to Assistant Superintendent Mc-
Cormick that these three men were the responsible parties. Following these discus-
sions Assistant Mine Superintendent McCormick made the decision to discharge
Homer Cartwright, Jr., John R. Smith, and Reuben S. Smith.
On August 28, 1954, Assistant Mine Superintendent Wynn McCormick instructed
Foreman Charles Hicklin to send the three men to his office at the end of their shift.
Upon their arrival McCormick said, "Well, boys let's go down to the supply house
where we will be private." Upon arrival at the supply house McCormick said: "Boys,
I have a very unpleasant task to perform. The officials and management of this
Company feel that you have circulated a paper around among the men during their
working hours, and caused others to circulate a paper around among the men in their
regular working hours, and I am going to have to let you go."
Thereafter, on or about December 30, 1954, Respondent offered reinstatement in
their former or substantially equivalent positions to each of the three dischargees.
John R. Smith and Homer Cartwright, Jr., accepted the offer, and returned to work
on January 10, 1955. For personal reasons, Reuben S. Smith declined the offer of
reinstatement.
Concluding Findings
The pertinent facts in this case are clear and undisputed. After a complete in-
vestigation, Respondent discharged three employees in the belief that they were
responsible for the circulation of a petition concerning wages and working con-
ditions in its coal mine during working hours. In defense of the action taken, Re-
spondent contends that it discharged these men for cause in that they violated a
rule of the Company against solicitation of its employees at work, and thereby
interfered with safety and the orderly operation of its business.
Section 7 of the Labor Management Relations Act, 1947, as amended, provides:
Employees shall have the right to self-organization , to form , join , or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have the
right to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization,as a condition of employment as authorized in Section 8 (a) (3).
In their interpretation of the Act, it is well established by decisions of the Board
and the courts that the circulation of a petition by employees to redress grievances
concerning wages and working conditions is a protected concerted activity within
the meaning of the Act .3 Protection of the Act is not extended to disorderly con-
duct; and does not preclude an employer from adopting and publishing reasonable
rules to restrict the activities of its employees during working hours. It follows,
however, that such rules must be made known to employees in order to be valid or
effective.
In this case there is no history of organizational activities prior to August 20,
1954, and Respondent had no occasion prior thereto to invoke any rule against
solicitation of its employees at any time. With impunity supervisors of Respond-
ent solicited employees during working hours to purchase raffle tickets and to
,authorize deductions in pay for charitable purposes. At no time did Respondent
make known to employees or enforce any rule against such solicitations. Super-
visors did not invoke any rule against solicitation when the royalty petition was
circulated in their presence on August 23, 1954. In fact some of the face bosses
encouraged and participated in the circulation by signing the petition. Others read
the petition , and raised no serious objection to its circulation . The employees
were clearly engaged in protected concerted activities, and there was no reprehensible
conduct engaged in sufficient to forfeit protection provided by,the Act. I am, there-
3 Pennsylvania Dutch Farms, 101 NLRB 1600; Morrison Knitting Mills, 80 NLRB 731;
Wood Parts, Inc., 101 NLRB 445; School-Timer Frocks, Inc., 110 NLRB 1659.
MINERS COAL COMPANY 473
fore , constrained to find from a preponderance of the evidence and all the cir-
cumstances of the case that the arbitrary selection for discharge of Homer Cart-
wright, Jr., John R. Smith, and Reuben S. Smith was an afterthought by higher
officials to punish employees for engaging in concerted activities distasteful to the
Respondent. Thereby the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
No labor organization is involved in this case, and it does not appear that Re-
spondent 's employees had any intention of forming or joining a labor organiza-
tion . I do not find that Respondent discriminated in regard to hire or tenure of
employment to discourage membership in a labor organization . Findings of un-
fair labor practices herein by the Respondent will be limited to violation of Section
8 (a) (1) of the Act; but in any event the remedy will be the same?
The courts have held that "there can be no violation of Section 8 (a) (3) of the
Act unless the conduct complained of can have the proximate and predictable
effect of encouraging or discouraging membership in a labor organization .5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section 1, 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.
V. THE REMEDY
It appearing that John R. Smith and Homer Cartwright, Jr., were reinstated by
Respondent to their former or substantially equivalent employment on or about
January 10, 1955, and on the same date Respondent offered similar reinstatement to
Reuben S. Smith , who declined for personal reasons to accept employment , no order
to require reinstatement is presently necessary . Having found, however , that Re-
spondent discharged said employees by reason of their protected concerted activities,
thereby interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, it will be recommended that Respondent
make each of them whole for any loss of pay he may have suffered by reason of the
discrimination , by payment to each of a sum of money equal to that which he nor=
mally would have earned from August 28, 1954, to the date when Respondent offered
to each of them, respectively, reinstatement to his former or substantially equivalent
position ,6 less his net earnings 7 to be computed on a quarterly basis in the manner
set forth in F: W. Woolworth Company, 90 NLRB 289, and N. L. R. B. v. Seven-up
Bottling Company of Miami, Inc., 344 U. S. 344. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other such period. It will be.
further recommended that Respondent make available to the Board and its agents,
upon request, all timecards, payrolls, and other records necessary to compute and
determine the amount of back pay herein awarded.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Miners Coal Company is engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
2. By discriminating in regard to the hire and tenure of employment of John
R. Smith, Reuben S. Smith, and Homer Cartwright, Jr., because they engaged in
protected concerted activities for the purposes of collective bargaining and other
mutual aid or protection , Respondent interfered with , restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
4 The Ohio Oil Company, 92 NLRB 1598
N. L R B. v Del B Webb Construction at at, 196 F 2d 702 (C A 8) ; N. L. R. B. v
J I. Case Company, Bettendorf Works, 198 F. 2d 919 (C. A. 8) ; Mode) n Motors, Inc. v.
N. L R B, 198 F 2d 925 (C A. 8).
9 See The Chase National Bank of the City of New York , San Juan, Puerto Rico , Branch,
65 NLRB 827.
1 See Crossett Lumber Company, 8 NLRB 440, 447-448