New Hyden Coal Co.

National Labor Relations Board - Board Decisions

May 28, 1954

108 N.L.R.B. 1145 (N.L.R.B. 1954)

NEW HYDEN COAL COMPANY 1145
The Employer takes exception to the Regional Director's
recommendations and argues that the fixers and watchmen
should not have been excluded from the bargaining unit and the
Board erred in so excluding them. We do not agree. On the
basis of the entire record the Board determined that the
fixers, at the Employer ' s plant , were supervisors within the
meaning of the Act, and accordingly, excluded them from the
unit . In like manner , the Board found that the watchmen were
guards within the meaning of the Act, and they too, were ex-
cluded . As the Employer ' s exceptions contain nothing not pre-
viously considered by the Board, we shall adopt the Regional
Director ' s recommendations and sustain the challenges to the
ballots of Charlie E. Guthrie, Tommie Johnson, Roy Page, Owen
Paschal, W. B. English, and W. M. Hooper.
As the Petitioner has secured a majority of the votes cast,
we shall certify it as the bargaining representative of the em-
ployees in the appropriate unit.
[The Board Certified American Federation of Hosiery
Workers, AFL, as the designated collective-bargaining repre-
sentative of the employees in the unit found appropriate in the
Decision and Direction of Election.]
CLAY M. BISHOP and ROBERT E. WHITE CO-PARTNERS,
Doing Business As NEW HYDEN COAL COMPANY and
GEORGE HUFF, ORVILLE HUFF, JOE BAKER, CARLOS
STOLLINGS, WILLIAM W. TAYLOR, ALERT BROCK
AND ARTEMUS CAMPBELL, Individuals. Case No. 9-CA-
510. May 28, 1954
DECISION AND ORDER
On June 24, 1953, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding
that the 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 Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Respondent's
exceptions and brief , and the entire record in the case and
hereby adopts the findings , i conclusions , and recommendations
I The Trial Examiner at one point in his Intermediate Report inadvertently stated that
certain interrogations occurred on February 19 or 20, 1951; the correct date is February
19 or 20, 1952.
108 NLRB No. 163.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Trial Examiner with the following modifications and
additions.
1. The Respondent excepts to the Trial Examiner ' s finding
that the individual charging parties are not " fronting" for
United Mine Workers of America , a noncomplying union, and
also requests that the Board take notice of the record in
another proceeding pending before it. Our decision in that
case (Lewis Coal Company, Inc., 108 NLRB 887) has now
issued and we find no " fronting " there. As the facts here are
similar to those in that case , we agree with and adopt the Trial
Examiner ' s finding.
2. We find, in agreement with the Trial Examiner , that the
Respondent independently violated Section 8 (a) (1) of the Act
by the following conduct: (a) Supervisor Mattingly inquired of
employee Joe Baker when Baker thought the Union would come
in; (b) Bishop , after receiving a telegram from United Mine
Workers demanding recognition , asked several of his em-
ployees whether they belonged to UMW, whether they had
attended a meeting at which a strike vote had been taken, and
whether they knew if a strike had been called; (c) on the day
before a strike was to start, after Bishop read to his em-
ployees a statement within the protection of Section 8 (c), he
then asked for • a show of hands on who would be coming to
work the next day.
With respect to the last of these incidents the Respondent
contends that the information it sought was needed so that it
could decide on its plans for the next day . It argues that its
only purpose in calling for the show of hands was to learn
whether the employees in fact intended to go on strike, as the
Union had indicated . The record before us does not support
the Respondent ' s assertion in this respect . Bishop's interro-
gation of the employees the previous day--wherein he sought
to learn when the Union would be brought in, who had joined,
and who had attended the union meeting - - coupled with the
unlawful discharge of four employees because of their pro-
union activities , prove rather that the Respondent held the
strike poll for the purpose of restraining the employees in
their right to engage in the planned economic strike , and was
improper interference with the employees' lawful privilege
to engage in concerted activities and may not be cloaked under
seemingly innocent interrogation.'
ZBecause in his Intermediate Report the Trial Examiner adverted at length to events
occurring more than 6 months before the charge was filed in this case, he may have con-
sidered such incidents in finding violations of Section 8 (a) (1) within the statutory 6-month
period. Although we agree with the Trial Examiner in finding 8 (a) (1) violations, we do not,
in any of our findings herein, rely upon any matter occurring more than 6 months before the
filing of the original charge . All our unfair labor practice findings are based entirely on
conduct which took place within the 6-month period.
Accordingly, we do not adopt any of the Trial Examiner's discussion or characterization
of the injunction suits and the so-called "yellow-dog" affidavits.
NEW HYDEN COAL COMPANY 1147
3. We do not agree with the Trial Examiner's finding that
the Respondent discriminatorily refused to reinstate William
W. Taylor on March 3, 1952, in violation of Section 8 (a) (3)
and (1) of the Act.
Taylor was employed by the Respondent in May 1951 on the
night shift as a coal loader, a piecework job. On November 13,
1951, he was transferred to "shift work," an hourly rated job
consisting principally of track work, in which he assisted
Mattingly, the night shift foreman. On December 31 Mattingly
was hospitalized and did not return until February 20. On
February 21 a strike began in which Taylor participated. On
February 29, he and three other employees reported to Nunn,
the assistant superintendent, that they understood the night
shift was about to be resumed,' and they were ready to go
back to work, but Nunn said he had no work for them.
Some time later, the Respondent offered Taylor a job as a
coal loader, but he was unavailable at that time. Thereafter,
in October 1952, the Respondent hired Taylor as a coal loader;
he stayed for 3 weeks and then quit. During this period, ac-
cording to Taylor's testimony, Mattingly told him that the
Respondent had not employed anyone to do the track work but
that he had to do it himself. Taylor did not indicate to the
Respondent why he quit but testified at the hearing that it was
because of the failure to give him track work.
The Trial Examiner found, in a6greement with the General
Counsel's contention, that when Taylor applied for reinstate-
ment in February 1952, he was a trackman, that his job as
such was available, that he had not participated in any unpro-
tected activities, that the refusal to reinstate him was there-
fore discriminatory, and that he had never thereafter been
offered reinstatement to his former job as a trackman. The
Respondent contends in substance that Taylor's job had been
filled nondiscriminatorily when he returned after the strike,
and that, in any event, it had reinstated him to an equivalent
job. Because we agree that there was no discrimination against
Taylor in March 1952, we find it unnecessary to consider the
contentions with respect to the kind of work he was given in
October 1952.
The facts establish that before Mattingly's hospitalization,
Taylor did track work part time to assist Mattingly, that he did
all the track work only while Mattingly was hospitalized, and
that when Mattingly returned the Respondent apparently decided
that he could do the track work unassisted , and Mattingly ap-
parently had been doing so for almost 8 months when Taylor
returned to the Respondent's employ. While the matter is not
free of doubt, we do not believe that a preponderance of the
evidence in the record establishes that Taylor was discrimi-
nated against in March 1952, and we shall therefore dismiss
the complaint as to him.
3 The night shift was resumed in early March 1952.
1 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
The Trial Examiner found, and we agree, that the Respondent
discriminatorily discharged Joe Baker, Carlos Stollings,
George Huff, and Orville Huff in violation of Section 8 (a) (3)
and (1) of the Act. However, unlike the Trial Examiner, we
find that Joe Baker, Carlos Stollings, and George Huff are not
entitled to reinstatement for the following reasons:
As fully set forth in the Intermediate Report, on February
21, 1952, an economic strike began at the Respondent's mine,4
attended by picketing which caused an access road and bridge
to be blocked. The scene was attended by considerable violence,
and in fact it was not possible to reach the Respondent's mine
until the police cleared the road later in the morning. For the
rest of that day and until the picketing ended, there was no
further incident.
No testimony connects Baker, Stollings, and G. Huff with any
specific incident during the picketing. However, in its answer
to the complaint the Respondent stated that these 3 5 had been
part of the mob that had picketed the mine on February 21,
and had engaged in such illegal activity as barred their
reinstatement. At the hearing each of the 3 was aked, on cross-
examination by the Respondent, whether on February 21 he had
been on the picket line or in the crowd that said they were
pickets, without any specification as to time of day. Each
answered affirmatively; there was no other evidence as to
their activities that day.
The Trial Examiner found that it had not been established
that the 3 had engaged in any specific misconduct, that it had
not been established beyond a reasonable doubt that they had
been on the picket line during the time when any misconduct
occurred, and that in any event it had not been shown that they
had been so placed as to be able to obstruct traffic or to cause
anyone going to any of the 3 mines to fail to reach his destina-
tion. We cannot agree either with the Trial Examiner' s reason-
ing or his result.6
In Rubin Bros. the Board held that if a respondent estab-
lishes a good faith belief that a striker has misconducted
himself, that is a good defense to a charge of discriminatory
refusal to reinstate, unless the General Counsel proves that
the misconduct did not in fact occur. Here the Respondent
showed its belief and the 3 testified that they did picket on
February 21. The nature of that picketing was such that the
Respondent might well believe that the 3 were engaged in
4 And at two other companies in the area.
5 Together with Brock and Campbell, as to whom the complaint was dismissed at the hearing
upon motion of the General Counsel.
6Rubin Bros. Footwear, Inc., 99 NLRB 610, set aside 203 F 2d 486 (C. A 5). The Board
has nonetheless indicated its adherence to the rule of proof there set forth. The Cambria
Clay Products Company, 106 NLRB 267. The Court of Appeals for the Fourth Circuit has
indicated its substantial agreement with the Board's rationale, N L. R. B. v. Industrial
Cotton Mills, 208 F. 2d 87, cert. denied 347 U. S. 935.
NEW HYDEN COAL COMPANY 1 149
activity which would bar their reinstatement . In these circum-
stances , it was the General Counsel ' s obligation to establish
that they did not misconduct themselves. This he did not do.
Accordingly , we do not adopt the Trial Examiner ' s recommen-
dation that the three be reinstated , but shall only grant them
back pay from the dates of discrimination against them to the
date of the misconduct, February 21.
In agreement with the Trial Examiner , we shall order the
reinstatement of Orville Huff . However, for reasons stated in
Lewis Coal Company, Inc., 108 NLRB 887, we do not
agree with the T rial Examiner ' s finding that the Respondent's
answer tolled its back-pay liability as to Orville Huff, and
shall therefore order that he be made whole for any loss of
pay he may have suffered by reason of the discrimination
against him by payment to him of a sum equal to that which
he would normally have earned less his net earnings, which
sum shall be computed on a quarterly basis during the period
from the discriminatory discharge to the date of a proper
offer of reinstatement.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respond-
ent, Clay M. Bishop and Robert E. White, co-partners doing
business as New Hyden Coal Company, their agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of
their employees , by discriminating in regard to the hire and
tenure of their employment or any term or condition of employ-
ment.
(b) Interrogating their employees in such a manner as to
interfere with, restrain , or coerce them in the exercise of
their rights under Section 7 of the Act.
(c) In any other manner interfering with, restraining, or co-
ercing their employees in the exercise of their rights to self-
organization to form labor organizations , to join or assist any
labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and 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.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Orville Huff immediate and full reinstatement to
his former or substantially equivalent position , without preju-
dice to his seniority and other rights andprivileges previously
enjoyed.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Joe Baker , Carlos Stollings , George Huff,
and Orville Huff for any loss of pay they may have suffered
by reason of the Respondent's discrimination against them, in
accordance with the section of the Intermediate Report entitled
"The Remedy," as modified by the section of this Decision
and Order entitled " The Remedy."
(c) Upon request , make available to the Board or its agents,
for examination and copying, all payroll records , timecards,
personnel records and reports , andall other records necessary
to determine the amount of back pay and the right to employment
under the terms of this Decision.
(d) Post at its mine in Hyden, Kentucky , copies of the notice
attached hereto marked "Appendix A.' Copies of said notice,
to be furnished by the Regional Director for the Ninth Region,
shall , after being signed by the Respondent ' s representative,
be posted by the Respondent and maintained by it 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 the Respondent to insure
that said notices are not altered , defaced , or covered by any
other material.
(e) Notify the Regional Director for the Ninth Region, in
writing , within ten ( 10) days from the date of this Order, what
steps the Respondent has taken to comply therewith.
AND IT IS FURTHER ordered that the complaint, insofar
as it alleges violations of the Act with respect to the refusal
to reinstate William W. Taylor, be, and it hereby is, dis-
missed.'
Member Rodgers took no part in the consideration of the
above Decision and Order.
7 In 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."
8At the hearing, the Trial Examiner granted the General Counsel's motion to dismiss
the complaint as to Albert Brock and Artemus Campbell.
APPENDIX A
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
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT interrogate our employees in such a
manner as to interfere with, restrain, or coerce them in
the exercise of their rights under Section 7 of the Act.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their right to
NEW HYDEN COAL COMPANY 1151
self - organization , to form labor organizations , to join or
assist any labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection or to refrain
from any and 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 NOT discourage membership in any labor
organization of our employees , by discriminating in any
manner with regard to their hire and tenure of employment,
or any term or condition of employment.
WE WILL offer to Orville Huff , immediate and full
reinstatement to his former or substantially equivalent
position , without prejudice to his seniority and other rights
and privileges previously enjoyed.
WE WILL make whole Joe Baker , Carlos Stollings,
George Huff, and Orville Huff, for any loss of pay suffered
by them by reason of the discrimination practiced against
them.
All our employees are free to become, remain , or refrain
from becoming members of any labor organization except to
the extent that this right may be affected by any agreement
in conformity with Section 8 (a) (3) of the amended Act.
NEW HYDEN 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.
Intermediate Report
STATEMENT OF THE CASE
Upon charges filed by attorneys on behalf of named individuals, duly served upon Respondent,
the General Counsel of the National Labor Relations Board, herein called the General Counsel
and the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), on November
24, 1952, issued his complaint against Clay M. Bishop and Robert E. White, co-partners doing
business as New Hyden Coal Company, herein called Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act. Copies of the Charge, complaint, and
notice of hearing were duly served upon the parties.
With respect to the unfair labor practices the complaint alleged in substance that since on
or about December 27, 1951, Respondent has interrogated its employees concerning their
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in United Mine Workers of America, as to whether they were going to strike and
had voted to strike, threatened to discharge its employees because of attempts to organize
its mine; and on or about February 20, 1952, polled its employees to determine which of them
were going to work and which going to strike the following day. The complaint, as amended
at the hearing, alleged further the discriminatory discharge and/or refusal to reinstate
five-named employees.
In its answer Respondent admitted the commerce facts alleged in the complaint, denied the
commission of any unfair labor practices, and alleged in effect that certain of the individuals
named in the complaint were disqualified by their participation in unprQtected activity during
a strike. In its amended answer Respondent asserted that this proceeding should be abated
as to certain of the complainants because they were also plaintiffs in an action then pending
in the United States District Court for the Eastern District of Kentucky (filed September 11,
1951), wherein Clay M. Bishop and Robert E. White were def t lants, and wherein the plaintiffs
sought, among other things, damages and an injunction growing out of the same alleged acts
and occurrences which are alleged as the basis for this proceeding. Statements of counsel
indicated that there were numerous other litigants in the district court case, presumably both
plaintiffs and defendants, that that case was brought under the so- called "Civil Rights Statute"
and involved whether certain civil rights of plaintiffs had been violated, that at the time of the
hearing in this proceeding no proof had been introduced in that case. As no question of
res adjudicate is involved, and as this proceeding involves alleged unfair labor practices,
over which the Board has exclusive jurisdiction, it is held that the district court case does
not bar this case. In its second amended answer Respondent alleged in substance that the
attorneys who filed the charges were "fronting" for the United Mine Workers which is
not in compliance with the filing requirements of the Act.
Pursuant to notice a hearingwas held in Hazard and Manchester, Kentucky, from December 8
to December 12, 1952, before. Alba B. Martin, the undersigned Trial Examiner. The General
Counsel and Respondent were represented by counsel throughout the hearing, and the individuals
on whose behalf the charges were filed were represented by counsel for the first day or two
of the hearing. All parties participated in the hearing and were afforded opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence pertaining to the
issues.
Two pretrial motions by Respondent were referred to the Trial Examiner for his considera-
tion and determination at the hearing. One, relating to where the hearing should be heard,
was disposed of by taking part of the testimony in Manchester, Clay County, Kentucky. The
other, a motion to dismiss the complaint because it was based upon an amended charge
at variance with the original charges and barred by the 6-month limitation contained in Section
10 (b) of the Act, was disposed of by denying the motion.
At the hearing Respondent objected to taking the testimony of the complaining witnesses
after other proof had been offered, based upon a Kentucky statute which bars a litigant
from testifying at all unless he is produced first. This objection was overruled. In its brief
Respondent conceded the Kentucky rule of procedure was not applicable and allowed, in
effect, that the Federal practice was contrary to its position at the hearing in that the order
of taking testimony is within the discretion of the trial tribunal.
At the conclusion of the hearing no party made oral argument. Briefs were received from
the General Counsel and from Respondent, which have been carefully considered.
Upon the entire record in the case and from observation of the witnesses, I make the
following.
FINDINGS OF FACT
I. The Business of the Respondent
The individuals named in the caption hereof are partners doing business as New Hyden
Coal Company. They are engaged at Hyden, Kentucky, and have been since about 1950, in the
business of mining and selling coal. The annual sales of coal produced by them are in excess
of $250,000, their entire production ofcoalbeingsold to the Bishop Coal Stoker Fuel Company
of Manchester, Kentucky, which sells and delivers more than 75 percent of said coal directly
to persons, firms, and corporations outside oftheState of Kentucky. It is held that Respondent
is engaged in commerce within the meaning of the Act.
At all times herein concerned Respondent employed some 50 to 60 employees at its No. 1
mine in Hyden, with which we are solely concerned.
NEW HYDEN COAL COMPANY 1153
H. The Organization Involved
United Mine Workers of America is a labor organization within the meaning of Section 2 (5)
of the Act. It is referred to herein as the Union.
The "fronting" issue: The original charge in this proceeding was filed February 20, 1952.
An additional charge was filed March 13, 1952, a second additional charge March 17, 1952, a
third additional charge March 18, 1952, a fourth additional charge November 12, 1952, and a
first amended charge November 20, 1952. Each of these charges except the last alleged the
discriminatory discharge of several employees, each additional charge listing new names and not
including names listed on previous charges. The first amended charge included names pre-
viously listed. Each of these charges was filed by the law firm of Burke and Burke of Pikeville,
Kentucky, or by one of the members of that firm. Most of them, including the first, were filed
by Francis M Burke. Each of the charges except the last was filed as "attorneys for (or
attorney for) complainant employees "
Insofar as the testimony reveals, Francis M. Burke first discussed the filing of charges,
with any of those allegedly discriminated against by Respondent, at a regular meeting of the
United Mine Workers of America held in a meeting hall at Wooten's Creek, which is located
about 100 miles from Pikesville, Kentucky, Burke's hometown. It is reasonable to infer from
these facts and it is found that Burke went to the meeting for the purpose of discussing the
discharges with the men concerned. As the record reveals, largely through statements of
counsel, it is difficult to reach men in this section of Kentucky, many of whom do not have
telephones and live several walking miles from the nearest highway. A union meeting was a
convenient time and place, therefore, for Burke to make original contact with the individuals
he was interested in seeing.
According to the testimony of the only three employees who were named as discriminatees
on the original charge and who testified at the hearing--Joe Baker, George Huff, and Carlos
Stollmgs--Burke introduced himself to the men at the meeting, asked for the names of any
who had been discharged by Respondent, and asked if any of them wanted to file charges
over being fired. Presumably the original charge was filed soon thereafter, naming not only
these 3 but also 4 others, who were not called to testify.
How Burke learned of the discharges, of the time and whereabouts of the meeting, and who,
if anybody, invited him to attend the meeting, does not appear from the testimony. Certainly
there is no proof that any officer of the Union or of the Local Union gave him any of this
information or invited him to attend the meeting. There is no proof that Burke or any of
his law partners ever did any legal or other work for United Mine Workers of America
or any of its local unions, or that he or they had any connection whatsoever with those
unions. They held no offices in any of those unions, and insofar as the record shows, had
no interest in the success or failure of any of the organizing drives of those unions. Insofar
as the record reveals, Burke attended the meeting with a view to filing charges on behalf
of those individuals whose cases he found to have merit.
William W. Taylor, one of the dischargees who was first mentioned on the first additional
charge filed nearly a month after the original charge, testified in substance that he took the
initiative and asked the president of the local union who to get in touch with concerning filing
a charge on his own behalf against Respondent, and was told the man to see was "Mr. Burke,
out of Pikeville, Kentucky." Taylor then wrote to Burke, and by appointment thereafter,
twice met with Burke (other alleged discriminatees being present) at a hotel in Hazard,
Kentucky, some 23 miles from Hyden. No union officers were present at these conferences.
Taylor testified further that he had paid Burke nothing, but had an oral contract with him to
do so.
Two men named in the complaint as having been discriminatorily discharged, Albert
Brock and Artemus Campbell, were dismissed from the complaint during the hearing upon
motion of the General Counsel. They were later called to the witness stand by Respondent,
and their appearance before me indicated that they were frightened. Their names first
appeared along with William W. Taylor's and others in the first additional charge. They
testified in substance that their names appeared on this charge without authorization by
them. Assuming the accuracy of this testimony (which I am inclined to question because of
their fright) it does not follow that those who suggested their names to Burke for inclusion
in the charge were either union representatives or "fronting" for the Union.
Upon the basis of all the probative testimony on the so-called "fronting" issue, it is
held that Burke and Burke, and each of its partners concerned, filed the charges herein not
as a "front" for the noncomplying United Mine Workers or any of its locals, not for the
purpose of assisting any of those unions in any organizing drives among Respondent's
339676 0 - 55 - 74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , but for the purpose of assisting the employees named in the charges in protecting
their rights guaranteed in Sections 7 and 8 of the Act. This they had a right to do, and in
doing so they were not " fronting."
III. THE UNFAIR LABOR PRACTICES
A. Background
United Mine Workers of America began an organizational drive among the employees of
the coal operators in Leslie and Clay counties, Kentucky, in early 1951, those two counties
then being considered in the industry as "unorganized " counties. Clay M. Bishop, one of
the Respondent copartners, testified that he first heard of the organizational drive in March
1951. There being no organized coal operators association in either county at that time, the
union drive brought many of the coal operators and businessmen of those counties together
"to discuss the situation as existed at the time." According to Bishop " it was the economic
effect upon the two counties that caused the people to be klarmed over the situation." He
testified further that if the mines in those two counties were organized and it became necessary
for the owners of the mines to pay the "union scale," "we wouldn't be able to operate any
mine." i He stated also that discussion of the Union's organizational campaign was not limited
to businessmen and coal operators : schoolteachers , farmers , and people of various other
occupations discussed it; the matter received "considerable notoriety and attention in both
counties ... by all classes of people."
In the summer of 1951, approximately 14 injunction suits were filed (presumably by coal
operators ) to restrain trespassers upon private property . Among those injunction suits was
1 filed by Bishop and his copartner , Robert E. White , which resulted in a restraining order
by the Leslie Circuit Court (of Leslie County) providing that:
Until further order of the Leslie Circuit Court, the defendants, Tom Raney, Bill Perkins,
Farmer Napier, Charles Baker, C. C. Conley, Robert Newsom, T. M. Fleming, and the
United Mine Workers of America , its officers , agents , employees , and members, are
hereby enjoined and restrained from entering upon any of the following property, to
wit....
The property then described was Respondent's mine property.
The so-called "Yellow Dog" affidavits: During the late spring or early summer of 1951,
prior to the 6-month period before the filing of the original charge, there appeared at Re-
spondent's mine property at least one batch of identical pieces of paper, each of which was
headed by the word, "AFFIDAVIT." The paper then read:
The affiant, , upon his oath, says that he is a citizen
and resident of County,
Kentucky, and is a bona fide employee of Coal Company;
that he has never signed a membership card or an application of membership with the
United Mine Workers of America; that he does not want to, or intend to sign with such
organization , and if there is on file with said organization a membership card or an
application of membership that same is a forgery and has been filed against his will
and without his consent thereto; that he has not been intimidated, forced or coerced
into signing this affidavit and that he signs the same hereunto freely of his own will and
accord without any promise of renumeration [sic] or reward for signing same; that he
is perfectly satisfied with his working conditions and does not desire that they be
changed in any way by unionization.
Following this language was a space for the date and signature, and following that a form
for a notary's jurat.
The testimony does not reveal who prepared or who brought these affidavits to Respondent's
property, or what happened to them after they were signed. The testimony indicates that at
iOn March 7, 1952, in giving to the Board's Regional Director his version of the facts
alleged in the original charge, Bishop wrote," ... we have not tried to conceal our belief
that our mine cannot operate under a union contract and make a profit." Bishop testified,
however, that he never discussed not being able to make a profit with any employees.
NEW HYDEN COAL COMPANY 1155
least some of the affidavits were signed by the miners in the mine office (sometimes referred
to as the lighthouse ) in the presence of the mine superintendent , Estill Deaton, and the
assistant superintendent , Henry Nunn , both supervisors within the meaning of the Act. Deaton
testified that although he did not read the affidavits and did not know just what they were, he
knew that some of the employees were passing them around on the mine property up and down
the track outside the mine. Deaton 's testimony that he did not know what the affidavits were
is not credited . Marion Taylor testified without contradiction that Henry Nunn brought one
of the affidavits to him and, in the presence of many other miners , asked him if he would sign
one and then said. "Go ahead and sign"; Taylor did so and turned it in to the mine office.
Elmer E. Taylor , another miner , testified without contradiction that Deaton asked him if he
was going to sign one of the affidavits , and that Talmadge Mattingly, the night boss, handed
one of the affidavits to him at the beginning of the night shift, and that he signed one. William
W. Taylor, another employee , testified that Mattingly handed him one. Although Mattingly
did not deny the above acts attributed to him, Respondent 's position was that Mattingly was
not a supervisor within the Act and thattherefore Respondent was not responsible for any acts
of his.
Bishop, a practicing lawyer who visits the mine from 1 to 3 days per week (but who has
never been inside a mine), testified incredibly that he did not hear of these affidavits until
a month or so after they had been distributed . He testified further that he learned they had
been distributed among his employees , but made no investigation to find out who circulated
them, although he did discuss the matter with his counsel. He took no steps to counteract
among the employees any effect the circulation of the affidavits might have had on them, "be-
cause [they] had no effect." Estill Deaton testified that neither Bishop nor White told him to
gather up the affidavits and destroy them, and he did not do so.
It is concluded from the above that while enjoining the Union from coming upon its property,
Respondent did not preserve a neutrality by keeping the antiunion affidavits away from its
property, by disciplining those who circulated them, or by undertaking to find and destroy the
affidavits , or by attempting to neutralize any effect they 'may have had among the employees.
B. Discharge of Joe Baker, Carlos Strollings , George Huff,
and Orville Huff
Joe Baker , Carlos Stollings , George Huff, and Orville Huff each loaded coal cars in Re-
spondent 's mine by hand , and were classified as coal loaders . Each was terminated shortly
after the mine reopened following a 5-day weekend -Christmas holiday shutdown in December
1951 .2 Each had worked for Respondent at least once before. Their period of employment
the last time varied in length a few weeks in the cases of Carlos Stollings and Orville Huff
to 4 months in the case of Baker and 9 months in the case of George Huff.
Joe Baker joined the Union in about September or October 1951, and thereafter pointed out
to the other miners , mostly inside the mine, the "great benefit" he considered the Union
would be to them- -"hospitals , everything like that .", He "signed up" Stollings into the
Union . The miners were paid by the ton, and had some free time inside the mine while waiting
for an empty car to be brought up and during luncheon periods . There is no claim that
Baker's conversations on behalf of the Union occurred when he should have been working.
Baker testified that shortly before Christmas 1951 Talmadge Mattingly ,the "night boss,"
asked him one night inside the mine, when Baker thought "the Union would come in there,"
and Baker replied that he thought it would "be in pretty soon. " (Asked by Respondent's
counsel on cross-examination how he knew the Union was coming soon , Baker replied, "Be-
cause they told me they were.... Well, we had the most of the men signed up and they all
was going 'to decide to quit until they got higher pay, and that 's the reason that I knew it was
coming soon. ") Mattingly replied that he "wanted to be the first man to sign it when it come
in." Baker then ' said that Mattingly "didn 't have to wait until it come in, that he could sign
it right then because I had a card , a Union card." Mattingly replied that he would "wait
and see what the rest of the men had done."
z Christmas 1951 fell on Tuesday. Baker and Stollings testified the mine reopened ou
Thursday, December 27, and an exhibit compiled from Respondent 's books and records, Re-
spondent 's Exhibit No. 4, indicated by a bracket that December 26, as well as the 24th and
25th, was a holiday. Deaton's best recollection was that the mine reopened on the 26th, but
he was not certain of this . It is held the mine reopened on Thursday , the 27th of December.
1 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Baker and Stollings, after Christmas they returned to the mine for the first
time, together, on December 27, the Thursday after Christmas. Baker testified in substance
that when they reported to Deaton, ready to go to work, Deaton told them that they, as well as
George Huff and Orville Huff, had no jobs, that Baker and Orville Huff had been carrying
union cards inside the mine and had been trying to persuade the men to sign up --on the
Friday night before Christmas. When Baker asked what made Deaton think that of himself
and Orville Huff, Deaton replied that he had "suspicioned" Baker a long time of "doing that."
In testifying Carlos Stollmgs substantially corroborated Baker's testimony, except that
Stollings did not state that Deaton referred to the Friday night before Christmas.
Orville Huff, who joined the Union about a month before Christmas 1951, testified that he
worked the Thursday night (he was on the night shift) before Christmas, and that he reported
for work the Friday night before Christmas but did not work. On that Friday night, Huff's
best recollection was that Henry Nunn , the assistant superintendent, was at the mine, but he
was not certain whether Estill Deaton was present. It is concluded from this testimony that
the mine closed down for the Christmas holiday at the conclusion of the day shift on Friday
and that the night shift did not work Friday night.
Huff testified that he next reported to work the day after Christmas , and went alone, that
he saw Deaton at about noon , and that Deaton told him he "had no use for " the witness,
Stollings, Baker, or George Huff. Thereupon Orville Huff left the mine.
George Huff was excused from work by Deaton a few days before Christmas to dig some
coal for use in his own home during the winter. It is a custom in the coal fields of that part
of Kentucky to let men off "to dig them some house coal." Huff had been a member of the
Union since about 1932, and according to his testimony had kept his membership "active."
Huff's testimony on direct and cross-examination was in substance as follows: After getting
in his house coal he reported back to work on about New Year's Eve or New Year's night.
It is found it was New Year's Eve . Deaton said to him, "I ain 't got no damn use for you, Joe
Baker, Orville Huff and Carlos Stollings." Deaton said also that Baker and Orville Huff
were carrying union cards and were trying to organize the mine. George Huff then asked
Deaton "the reason that he fired me," and Deaton replied, "he didn't have no damned use
for me." Then Huff asked Deaton if Huff could work on the day shift , Huff having been on the
night shift before Christmas, and Deaton told him to come back the next day and he would
put him on the day shift. Huff returned the next day, January 1, 1952 (dressed in work
clothes , Deaton testified), and Deaton said , " I ain't got not place for you. ... I can't place
you and I ain 't got no use for you." Since then Huff has not been back to the mine.
Respondent's defense to the 4 terminations considered above, stated through Estill Deaton,
was that Baker and Stollings were severed because they ere absent from work for 7 days and
had not let him know where they were or that they would be absent, that Orville Huff stayed
away from work several days without saying that he would be off and without getting per-
mission to be off, that when George Huff returned after getting in his house coal he wanted to
work on the day shift but when Deaton told him there was no place for him on the day shift,
Huff said that he would return the next day to work on the night shift--but he never did re-
turn.
On cross-examination Deaton testified that he did not suspect Joe Baker and Orville Huff
of distributing union cards on the Friday before Christmas, although he had suspected Boyd
Mosley, Graden Hoskins, and Robert Lewis of distributing union cards, the latter 3 presumably
being employees still in Respondent's employ. He suspected these 3 "all of the time they
were participating in it." When asked how he knew these 3 were participating in it , Deaton
replied that he suspected them "with actions." The reason he suspected them was that they
would be off 2 or 3 days and never say anything to him about being off, whereas "the rest of
them"- -that is , "the majority of them" would tell Deaton when they were going to be off.
Deaton when they were going to be off. Deaton stated further that Baker and Stoilings were
"in the bunch that would never tell me whether (they were) going to be off or anything"--and
so was Orville Huff. He said that Orville Huff would go off for 2 or 3 days at a time, but
Deaton did not for that reason suspect Orville Huff of passing out union cards. Asked to
explain why he suspected Mosely, Hoskins, and Lewis, but did not suspect Baker, Stollings,
and Orville Huff, Deaton replied as to Stollings and Orville Huff that he did not suspect them
because several times while they worked for him he had seen them come out of beer joints
drunk. Although he never saw Joe Baker come out of beer joints drunk, he "just didn't
suspicion him." Pressed for a clearer answer as to why he suspected Mosely, Hoskins, and
Lewis, Deaton replied, "I told you by their actions, and the way they work, and the way they
laid off and so on." He explained further that "you would go to ask them where they had been
NEW HYDEN COAL COMPANY 1 157
and they would drop their head off and walk off around down the road, walk off and wouldn't
talk to you"--whereas Joe Baker 'would look right square at you. He wouldn't drop his head
and sneak off."
Because the reasoning is jumbled and shifting I am unable to credit the above testimony of
Deaton that he did not suspect Baker and Stollings of union activities and that he did suspect
three others.
As to Baker and Stollings having been absent for 7 days just prior to their severance, the
Respondent's books and records did not bear out this testimony of Deaton's and of another
witness for Respondent, Henry S. Roberts. The books and records of Respondent, according
to an exhibit prepared from them by Clay M. Bishop and the Company's bookkeeper, Mrs.
Smith, indicated that Baker and Stollmgs werebothon the job all of the week before Christmas
and all but 1 day the week before that; that neither one had been absent from work since
December 11. It is so found.
The work record of Orville Huff was not adduced, but if Deaton's testimony as to his
absences is as reliable as his testimony concerning the absences of Baker and Stollmgs,
his testimony is not to be credited. On direct examination he testified that when Orville
Huff returned after Christmas, "I told him I couldn't use him on the day shift at all, and
he turned around and walked' off." He was then asked, "Who turned around and walked
off," and Deaton replied, "I did. I turned around and walked off." Deaton testified further
that at that time Deaton had a job for Huff on the night shift, where Huff had been working
before Christmas, but given an opportunity Deaton did not testify that he so informed Huff.
If in fact Deaton turned around and walked off immediately after informing Huff that he could
not use him on the day shift, there is every probability that he did not then and there inform
him that he could use him on the night shift. Nor was Huff's employment consistent with his
discharge for absences.
Deaton denied saying to Baker and Stollings, and to George Huff, that he had no use for
them or Orville Huff because some of them had been passing out union cards in the mine--
which I accept as a denial of their testimony although they did not testify just that. In view
of the inconsistencies and self-contradictions in Deaton's testimony, some of which are
shown above, I am unable to credit these denials. It is held that their last conversations
with Deaton took place substantially as testified by Baker, Stollings, and the two Huffs.
Clay M. Bishop testified that about 60 percent of his employees work regularly and about
40 percent of them are what he termed "roaming" employees who do not attach themselves
with any regularity to a given employer, so that when they are away a few days their current
employer does not know whether they are coming back and sometimes fills their jobs with
others. There was no claim that Respondent has a practice of discharging "roaming" em-
ployees as such. It was suggested that Baker and Stollings were such "roaming" employees.
However, as neither of them had been absent from work since December 11, as neither of
them, therefore, could have been replaced during that period because of his current absence,
and as Deaton, when asked, could not name the employee who allegedly replaced Stollings,
it is held that their being "roaming" employees, if they were, had nothing to do with the
discharge of Baker and Stollings.
On cross-examination of Deaton and Talmadge Mattingly by the General Counsel, it
developed that at the entrance to Respondent's mine there was a sign, the exact wording
of which the record does not reveal. Deaton's best recollection was that it had to do with no
soliciting and said no soliciting of any kind. Mattingly's best recollection was that it read:
"No soliciting allowed, private property"--"or something like that." Deaton testified that
he does not enforce the company rule announced on the sign to prohibit solicitation of union
membership during the employees' nonworking time. It was not claimed that any of the dis-
chargees involved in this case were severed for violation of the rule. Further, the pleadings
in the case did not raise the question of the legality or illegality of the rule, and that issue
was not fully litigated. I conclude, therefore, that the rule had nothing to do with the sever-
ances involved in this case, and I make no finding that the rule violated Section 8 (a) (1)
of the Act because it was an unreasonable impediment to self-organization.
In the light of the entire record it is held that Deaton discharged Baker because of Baker's
union membership and activity and that he discharged Carlos Stollings, Orville Huff, and
George Huff because of their union membership and suspected union activities. By these
discharges and by failing thereafter to reinstate the four employees, Respondent discrimi-
nated against its employees in regard to their hire and tenure of employment, thereby
discouraging membership in the Union, in violation of Section 8 (a) (3) of the Act, and un-
lawfully restrained and coerced its employees in violation of Section 8 (a) (1) of the Act.
1 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the witness stand Talmadge Mattingly stated that he did not remember talking about
the Union with Joe Baker at any time. He did not "remember exactly" asking any of the
employees whether or not they belonged to the Union. He denied saying to Baker that if the
Union came in he wanted to be the first to sign up with it. He was not asked and did not deny
asking Baker when Baker thought the Union would come in, as testified by Baker. It is
held that Mattingly asked this question of Baker. The question arises as to whether Mattingly
was then a supervisor under the Act and as to whether this questioning was illegal interroga-
tion.
At least three of the General Counsel's witnesses, who worked with him, testified that
Mattingly was the night foreman at Respondent's mine. Clay M. Bishop testified that Mattingly
was a trackman and that if he had any supervisory authority Bishop did not know of it.
Deaton denied that Mattingly had supervisory authority. Mattingly and copartner Robert E.
White testified in substance that Mattingly did have such authority.
Mattingly testified that he has worked for Respondent for about 21 years, ever since
Bishop and White "have been running the place. " He has been on the night shift for about
2 years, as a trackman- -one who lays track and switches in the mine. Asked what his duties
on the night shift were, other than trackwork, Mattingly replied, "well, I guess I oversee
the work part of the time." Asked if he had any official title, he replied, "Well, I guess
you might call me assistant boss, something like that." He added that he has no authority
to hire or fire, but does have authority to discipline. He said that if an employee does not do
as Mattingly tells him to do, Mattingly can report it to the mine foreman, Henry Nunn.
Mattingly admitted telling a Board field examiner that he was in charge of the night crew
and that he had held that position since 1950. He admitted telling the field examiner also
that he was a trackman and brattice man" before I became night foreman." He admitted
that several named persons were employed by Deaton after Mattingly had recommended them
to Deaton--although he was not quite certain that all of those he recommended were in fact
hired.
Copartner Robert E. White testified on cross-examination that Mattingly was "an assistant
foreman, yes, assistant and sort of a supervisor too." He said Mattingly had supervision of
the night shift. He told the men on the night shift what to do and they were expected to and
did carry out his orders. He was given authority because at night he was in the mine and no
other representative of the Company was in the mine. Mattingly was a good leader, he got
along with the men, and therefore he was given "a little authority there .. , to manage and
carry on the night shift." He saw that the miners "did carry on the work and wasn't gold-
bricking or anything." White testified further that Mattingly has had this authority all the
time he and Bishop have been operating the mine.
Henry Nunn was in active charge of the day shift, and as he lived on the mine property
Respondent's position seems to be that he was also in charge of the night shift. The testimony
shows, however, that Nunn went into the mine during the night shift only occasionally, that
there were customarily some 14 employees in the mine on the night shift who would be
working without any supervision at all if Mattingly were held not to have had supervisory
authority.
On the basis of all the testimony concerning Mattingly's job, it is held that he has authority
on the night shift to see that the men work, to give them orders concerning the work, and
effectively to recommend their discipline if they refuse him. It is held that the employees
on the night shift look to him as the voice of management within the mine on their shift.
It is held that he has authority effectively to recommend hiring and firing of employees. It
is held, finally, that he is a supervisor within the meaning of the Act.
Although there was no antiunion animus shown against Mattingly himself, the entire record
indicates that Respondent was taking a strong position to prevent the Union from gaining bar-
gaining rights among its employees. It is therefore reasonable to believe that Mattingly's
inquiry of Baker as to when Baker thought the Union would come in was a part of Respondent's
policy of obtaining information concerning the Union from its employees, for the purpose of
warding off the Union. It is held that Mattingly's inquiry was unlawful interrogation in
violation of Section 8 (a) (1) of the Act.
C. Interference , restraint , and coercion by Clay M. Bishop
and Estill Deaton on or about February 19 and 20, 1952
On February 18 or 19, 1952, Respondent received a telegram reading as follows , signed
"Tom Raney, Chairman Organization Committee of Clay and Leslie Counties":
NEW HYDEN COAL COMPANY 1 159
This to advise that on February 17, 1952 . The employees of the New Hyden Coal Company
and members of L. U. # 8412 unanimously went on record voting to call a strike at the
New Hyden Coal Company mine at Hyden , Kentucky . on Thursday February 21st, 1952.
Purpose of the proposed strike is to seek recognition by the New Hyden Coal Company
of the U . M. W. OF A. These members of Local Union No . 8412 have instructed me as
their representatives and as by bargaining agent to write the following that if the New
Hyden Coal Company will recognize the U . M. W. OF A. as bargaining agent and will
agree to meet said union 's representative and a committee of your employees before
February 21 , 1952 to discuss wages , hours and working conditions with the view in
mind of signing a contract.
If this is agreed your employees will not close work on February 21, 1952 but will
continue to work during the contract negotiations.
I am using this method of a telegram because of a court injunction restraining or-
ganizers from entering on to the New Hyden Coal Company property which prevents the
usual contacting method of notifying coal companies when seeking recogination.
If your company refuses to recognize the union the strike will proceed on February
21, 1952.
After receiving this telegram Clay M. Bishop went to his mine and he and Estill Deaton
spoke to most of their employees who were around , Deaton estimating there were some 20
or 25 men . They spoke to them individually or in small groups . Deaton testified that these
conversations occurred on February 19, 1952, because he was certain he was in Hazard,
Kentucky, and not at the mine on the following day. Bishop and several employees placed
the date as February 20. It does not appear necessary to resolve the conflict.
Elmer E. Taylor, a credible wimess , testified that on February 20 about a half hour
before the beginning of the afternoon shift, which started at 3 o'clock , Bishop , Deaton, and
an employee named Ewell Howard came over to him and Bishop asked him if he belonged
to the Union. After at first hesitating , Taylor replied that he did. Then one of them asked
"about the other boys and I didn't know." Taylor then said that his older brother, William
W. Taylor "has always belonged to the Union." Deaton then said , "It looks like the whole
mine belongs to the Union." Bishop or Deaton then asked the witness if he had attended a
specific union meeting , and when he replied that he had not, they told him that a strike had
been called . Then, according to Elmer E . Taylor, Bishop, Deaton, and Howard went over to
Isaac Howard , another employee , and had about the same conversation with him, which
Taylor overheard.
On cross-examination Bishop admitted asking Elmer E . Taylor if he knew anything about
a strike , and admitted asking Isaac Howard if he had any information as to the strike and if
the men were going to strike . He testified that although he had no remembrance of it he
would not deny asking Elmer E. Taylor if his brother, William W. Taylor, was a union man.
Bishop testified that he had asked 1 or 2 employees if they had voted to strike . He was then
shown an affidavit previously executed by him which stated, "I asked them , if they had
voted to strike"--not limiting the number asked to 1 or 2. Having been refreshed by the
affidavit , Bishop testified that in substance the affidavit was correct.
On cross-examination Estill Deaton, Respondent 's superintendent , stated tiat on this
occasion when he and Bishop spoke to 20 or 25 men, Bishop "asked them was they aiming
to picket his mine." Deaton believed Bishop asked some of them if they had attended a
union meeting at which a strike vote was taken . Deaton testified further that either he or
Bishop asked Elmer E. Taylor if his brothers were members of the Union, and that when
Taylor replied that his brother, William W. Taylor, was a member of the Union, Deaton
said , "Well, I thought he would be." Some years before Deaton had been a member of the
Union and he and William W. Taylor had been in the same local together in another Kentucky
community. Deaton testified further that they asked the 20 or 25 men which ones were
members of the Union and that the men told them.
On February 20, 1952 , after the afternoon shift had obtained its lights from the light-
house and was ready to enter the mine, Bishop assembled all of the miners of that shift,
and any others then around , and read them a prepared statement , as follows:
Gentlemen:
We have been notified by telegram that some of our men intend to strike tomorrow
unless we agree to recognize the United Mine Workers as the bargaining agent for all
our employes.
1 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This mine is not going to sign a contract with United Mine Workers, principally
because we are certain we would have to operate at a loss under such a contract. How-
ever, we want to make it clear that any and all of our employes are free to join that
union, or any union, whenever they want to do so, and so long as we can operate our
mine at a profit, we are going to try to do it, and no employe will be discriminated
against because he did or did not join a union.
So long as we have enough employes who want to work that we can operate, we are
going to try to furnish them employment. Anyone who wants to strike has a right to do
so under proper circumstances. The union also has a right, which we recognize, to
engage in peaceful and proper picketing. However, union members are enjoined from
trespassing on our property, and anyone who quits work to engage in a strike will be
expected to keep off our property.
All of your jobs are here for you, and will be tomorrow, whether you belong to a
union or not. If any of you quit to strike, which is your privilege, we will try to find
someone to take your place as long as you refuse to accept the work which we have
for you. Whenever you decide to quit striking, and want to return to work, we will re-
employ you, regardless of your union connections, as rapidly as we have a place for
you, but we will not discharge men who have been employed to fill your places simply
because you want to go back to work.
We hope you will all come to work tomorrow, but whatever your choice is, there
will be no discrimination against you.
We do not expect any trouble here tomorrow. The Governor has been asked to send
State Police to see that there is no disorder, and the F.B.I. has also been asked to
send representatives. We certainly will cause no trouble, and do not expect any to
occur.
When he had completed the reading of this statement, Bishop asked all those who were
willing to come to work the following day to indicate this by raising their hands--and all
assembled raised their hands except the 3 Taylor brothers, William W. Taylor, Elmer E.
Taylor, Marion Taylor, Issac Howard, and possibly 3 others. Bishop testified that all but
3 or 4 held up their hands, but that he did not recall the identity of the 3 or 4. Bishop testified
that he asked for this show of hands in order to be able to determine whether to make
preparations to work the following day--which determination would depend upon the number
of miners who would work.
In conclusion it is found that on February 19 or 20, 1951, Clay M. Bishop, 1 of the co-
partners herein, asked Elmer E. Taylor and Ewell Howard, employees, if they belonged to
the Union, and that he asked this same question of some 20 to 25 employees in all; that on
the same occasion Bishop asked a number of employees if they had attended a certain union
meeting; that Bishop also asked his employees if they had any information concerning a
strike, if they were going to strike, and if they had voted to strike. These questions were
designed to elicit information from the employees concerning their union membership and
activities and their concerted activities , Respondent thereby interfering with , restraining,
and coercing its employees in the rights guaranteed in Section 7 of the Act, Respondent
thereby violating Section 8 (a) (1) of the Act.
It is held further that Bishop's prepared statement which he read to the employees on
February 20, 1952 , consisted of views , arguments , and opinions without threat of reprisal
or promise of benefit, which were protected by Section 8 (c) of the Act.
As found above, just before reading his prepared statement and then polling his employees
as to whether they would come to work the following day, Bishop illegally interrogated his
employees concerning several aspects of their protected rights. In view of this unlawful
interrogation, I am unable to accept Bishop's -explanation as the full reason why he asked
the employees to raise their hands. It is found, rather, that he asked for the show of hands
in part to increase his own knowledge as to which of his employees were sufficiently "with"
the Union to be willing to go on strike, and also as an effort to prevent his employees from
striking at all. It is held that Bishop's calling for this show of hands was an interference,
restraint, and coercion of his employees in the rights guaranteed in Section 7 of the Act,
Respondent thereby violating Section 8 (a) (1) of the Act.
NEW HYDEN COAL COMPANY 1161
D. The strike, and the effect of any picket line misconduct
upon the rights of the dischargees
Respondent did not respond to the telegram from the Union demanding recognition, set
forth above, and on February 21, 1952, the strike commenced on schedule. There was a so-
called picket line on February 21,22,and23, and not thereafter. At a union meeting on Febru-
ary 28, 1952, it was voted to call off the strike. Although the evidence is not entirely clear,
it appears that Respondent began operating its day shift during the week of February 25,
1952. It began operating its night shift on Monday, March 3, 1952.
This strike was called against not only Respondent, but also against two other employers,
Citation and Thomas Coal companies, whose mines were in the vicinity of Respondent's
mine. The strike against Respondent was, as the telegram from the Union to Respondent set
forth above, indicated, a strike to gain recognition by Respondent of the United Mine Workers
of,America as the bargaining agent of Respondent's employees. The proof does not indicate
that Respondent's illegal discharge of the four employees shortly after Christmas 1951, as
found above, was the direct cause of the strike (although presumably it was part of the back-
ground causation), and it does not appear that Respondent 's illegal interrogation of its em-
ployees on the day preceding the strike was the cause of the strike, the strike vote having
been taken the preceding Sunday. It is therefore concluded that the strike was not an unfair
labor practice strike and that it was an economic strike. As the Board has recently held,
such a recognition strike is a legal strike. Ohio Ferro Alloys Corporation, 104 NLRB 542.
Joe Baker, Carlos Stollings, and George Huff having been discriminately discharged prior
to the strike, as found above, were at all times thereafter entitled to reinstatement unless
they forfeited that right by misconduct on the picket line. Respondent's answer averred they
suffered such forfeiture by being present "and participants" on the first day of the strike
when certain unprotected activity was indulged in.
The only evidence connecting these three discriminately discharged employees with the
picket line came into the record on the cross-examination of them by Respondent's counsel.
Baker was asked if he was "on the picket line on February 21st at the New Hyden Coal
Company," and his reply was "I was." Stolling was asked if he was "on the picket line or
in the crowd that said they were pickets on the 21st of February, 1952," and his reply was
"yes sir." George Huff was asked if he was "on the picket line or among the pickets that
were out about the New Hyden bridge on February 21," and his reply was "yes sir."
The record shows that for several hours on the first morning of the strike, February 21,
there was mass picketing which blocked traffic on the highway leading to Respondent's
entrance road, would-be workers and Respondent 's partners and superintendent were not
allowed to proceed to the mine, and there was some violence and threats of violence. Two
truckloads of coal were placed in the entrance road and stayed there until 2 o'clock that
afternoon. At 11 o'clock that morning "officers" (presumably the State highway patrol)
arrived and "cleared the road"--meaning the highway and the bridge over it which had been
blocked by the large number of men (some 300 ro 400 were in the general vicinity).
The record suggests nothing in the nature of unprotected activity after the events described
above. As the picketing continued for 3 days, and presumably during the daylight hours at
least of the 3 days, it is reasonable to infer, in the absence of any evidence to the contrary,
that no unprotected activity occurred on the picket line after the events described above.
The only testimony concerning the above-related "picket line" events was by Respondent's
2 partners, Bishop and White, and from its superintendent, Deaton. All 3, were on the bridge,
over which the highway ran near Respondent's entrance road, and for awhile, at least, were
sitting in their automobiles . During the worst case of assault , upon Deaton, Bishop and
White were sitting in an automobile just behind the scene of action and were in a position to
identify the assaulters. Also, at all times between the strike and the hearing, some 9 months
later, Respondent could have discovered what, if any, unprotected misconduct was committed
by Baker, Stollings, and George Huff. Yet none of them in any way implicated these three
employees in any of the unprotected activity.
As these three employees were not shown beyond a reasonable doubt to have been on the
"picket line" during the first several hours when the only alleged unprotected activity
occurred, and as Respondent urged no specific misconduct against them, I am unable to find
that any unprotected activity should be imputed to them.
1 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, even assuming that they were in the vicinity of the highway and bridge during
the mass picketing, the record is silent as to their whereabouts while they were present.
There is not a scintilla of evidence that they were so placed as to be able to, or that they
did, obstruct the flow of traffic or cause a single person who was going to work at any one
of the three mines that morning not to each his destination.
Finally, the record is devoid of any evidence that Respondent denied these three men
reinstatement because of any misconduct by them or because Respondent believed they had
engaged in misconduct. As far as the record shows, after discharging these men prior to
the strike Respondent did not consider reinstating them either before or after the strike.
As it did not consider reinstating them after the strike, there is no proof that it refused to
reinstate them because of any misconduct or Respondent's belief they engaged in any mis-
conduct. Cf. Rubin Brothers Footwear, Inc., 91 NLRB 10.
Although I do not condone the activities of the pickets on February 21, I do not believe
that on this record it has been shown that Baker, tollings , and George Huff , by their mere
presence on the picket line sometime during February 21--not necessarily in the morning--
forfeited their right to be reinstated with back pay which flowed from their discriminatory
discharge some weeks before.
There is absolutely no proof in the record that Orville Huff participated in any way in
the strike. Insofar as the record shows, he was not present at any time on the "picket line."
It is therefore concluded that his right to reinstatement and back pay remained unimpaired.
E. The refusal to reinstate William W. Taylor
William W. Taylor, one of the Respondent's employees prior to the strike, had once been,
as stated above, a union man along with Deaton and in the same local During the Union's
organizational drive in 1951, Taylor mailed in an application and "resumed membership."
He attended several meetings of the Union prior to the strike. During the strike he with-
held his services from Respondent, although he did not participate on the picket line. He
testified on cross-examination that he did not reapply for work until the strike was called
off February 28 and he was released from being under strike orders. On the basis of this
evidence it is held that William W Taylor participated in the strike and was a striker. As
will be seen below, on February 29, 1952, he applied for reinstatement and was denied em-
ployment. The question arises as to whether the denial was discriminatory under the Act.
William W. Taylor worked for Respondent continuously from May 1951 through February
20, 1952. From May until November 13, 1951, he was a coal loader. On the latter date
Deaton transferred him to "shiftwork," which meant that thereafter he was paid by the hour
rather than by the ton. From November 13, 1951, until February 20, 1952, he spent most
of his time doing trackwork- -laying and moving tracks and switches in the mine for the
coal cars to move on--but for some 2 or 3 weeks during that period, he coupled cars and
Mattingly did the trackwork. Taylor worked 1 shift as a coal loader at Mattingly's request.
The 2 or 3 weeks when Taylor coupled must have been before December 31, 1951, for on
that date Mattingly was operated on in a hospital and he did not return to the job until Febru-
ary 20, 1952. During the entire period November 13, 1951, through February 20, 1952, Taylor
was classified on the Company's books and records as a "shiftman," which included trackman.
It is held on the basis of all the evidence that during this period he was a trackman.
Counsel stipulated at the hearing that Respondent hired no new trackmen between February
20, and March 31, 1952.
On February 29, 1952, Taylor and his two brothers, as well as Isaac Howard, reported at
the mine and talked with Henry Nunn, the assistant superintendent. They told him they
understood the night shift (which they had been on before the strike) was about to go back
to work, and that they were reporting in and were ready to go to work. Nunn replied that he
had no job for any of them.
By its evidence Respondent contended in substance that when Mattingly returned to work
after his illness, on February 20, 1952, he took over as trackman, and that Taylor stepped
back to coal loading. Deaton testified that on February 20 Taylor worked as a trackman
assisting Mattingly, but that on that day Deaton told Taylor that when he returned the next day
he would have to go back to coal loading. This testimony of Deaton was denied by Taylor, who
stated on rebuttal that on February 20,1952, he had no conversation at all with Deaton. Taylor
impressed me as a more credible witness than Deaton, and Taylor's testimony is credited.
NEW HYDEN COAL COMPANY 1 163
Taylor 's job not having been filled before he applied for reinstatement on February 29.
1952 , and Taylor not having participated in any alleged unprotected union and concerted
activities , Respondent 's refusal to reinstate him when the night shift went to work on March 3,
1952 , the following Monday (February 29 having been Friday), was unlawful discrimination
against him in regard to his hire and tenure of employment , Respondent thereby discouraging
membership in the Union , and thereby violating Section 8 (a) (3) and (1) of the Act.
In early September 1952 , Taylor again applied to Deaton for reinstatement , and was told
by Deaton that he had no job open.
Beginning about October 13„1952, Deaton hired Taylor as a coal loader , and Taylor worked
at the job for some 3 weeks before quitting to go to work for another coal company on shift-
work. Taylor testified he would not have left Respondent had he been given his job as track-
man. Since February 20, 1952, Taylor has never been offered reinstatement as a trackman.
It is held that giving him work as a coal loader and Taylor 's accepting it did not fulfill Re-
spondent 's obligation to offer him reinstatement as a trackman . This conclusion is not
altered by the fact that during his 3 weeks ' work as a coal loader last fall Taylor did track-
work on 2 Saturdays . All the rest of that period he loaded coal by hand and was paid on the
basis of tons , and presumably was classified on Respondent 's books and records as a coal
loader . The fact that he worked 2 Saturdays at trackwork did not discharge Respondent's
obligation to offer him regular employment as a trackman.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities set forth in section III, above, occurring in connection with Re-
spondent 's operations described in section III, above, occurring in connection with Respond-
ent's operations 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.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth above, I
recommend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Respondent having discharged Joe Baker , Carlos Stollings , George Huff, and Orville Huff,
and having refused to reinstate William W. Taylor, because of their actual and suspected
union and concerted activities , I recommend that Respondent offer to each of them immediate
and full reinstatement to his former or equivalent positions without prejudice to his seniority
and other rights and privileges and make each whole for any loss of pay he may have suffered
by reason of Respondent 's discrimination against him, by payment to each of them of a sum
of money equal to that which he normally would have earned as wages ; from December 27,
1951, in the case of Baker, Stollings , and Orville Huff; from January 1, 1952, in the case of
George Huff, the dates of the discrimination against them , to December 2, 1952, the date of
the filing of Respondent 's answer herein ,4 excluding in the cases of Baker, Stollings, and
George Huff the period , February 21 to 28, 1952, when they were on strike; from March 3.
1952, in the case of William W. Taylor, the date of the discrimination against him, to the
date when Respondent shall offer him reinstatement as a trackman ; 5 less, in each case, his
net earnings during said period.6
3The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 NLRB
827.
4 The concluding sentence of the answer stated that, "Employment of each and all of said
individuals is now available in the mine of Respondent , and such employment is here and now
tendered to them." This tolled the back pay of Baker, Stollings , and George and Orville
Huff.
5 As Respondent 's answer did not specifically offer Taylor reinstatement as a trackman,
it did not toll his back pay as of the filing of the answer.
6Crossett Lumber Company , 8 NLRB 440, 497-8 ; RepublicSteel Corporation v. N. L. R. B.,
311 U. S 7.
1 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loss of pay shall be determined by deducting from a sum equal to that which these em-
ployees would normally have earned for each quarter or portion thereof, their net earnings,
if any, in other employment during that period. Earnings in one particular quarter shall have
no effect upon the back-pay liability for any other quarter. The quarterly periods described
herein shall begin with the first day of January, April, July, and October.7 It is recommended
further that Respondent make available to the Board upon request payroll and other records,
in order to facilitate the checking of the amount of back pay due.8
Because of the Respondent's unlawful conduct and its underlying purpose and tendency, I
find that the unfair labor practices found are persuasively related to other unfair labor prac-
tices proscribed and that danger of their commission in the future is to be anticipated from
the course of the Respondent's conduct in the past. 9 The preventative purpose of the Act will
be thwarted unless the order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby to minimize industrial strife which burdens and obstructs commerce,
and thus effectuates the policies of the Act, I will recommend that Respondent cease and
desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act.
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. Clay M. Bishop and Robert E. White are partners doing business at Hyden, Kentucky,
as New Hyden Coal Company. This partnership is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. United Mine Workers of America is a labor organization within the meaning of Section 2
(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Joe Baker, Carlos
Stollings, George Huff, Orville Huff, and William W. Taylor, thereby discouraging member-
ship in United Mine Workers of America, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
4. By interrogating employees as to when they thought the Union would come in, by asking
employees if they belonged to the Union, if they had attended a certain union meeting, if they
had any information concerning a strike, if they were going to strike, if they had voted to
strike, and by polling its employees as to who would work the day a strike was to begin,
Respondent interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
7 F. W. Woolworth Company, 90 NLRB 289.
8 F. W. Woolworth Company, supra.
9 N. L. R. B. v. Express Publishing Co., 312 U. S. 426.
KRAFT FOODS COMPANY and JOSEPH F. MURTHA. Case
No. 4-CA-834. May 28, 1954
DECISION AND ORDER
On October 15, 1953, Trial Examiner Robert E. Mullins
issued his Intermediate Report in the above -entitled proceeding
recommending that the complaint be dismissed in its entirety,
as set forth in the copy of the Intermediate Report attached
108 NLRB No. 160.