Newcoal Corp.

National Labor Relations Board - Board Decisions

Nov 13, 1939

17 N.L.R.B. 617 (N.L.R.B. 1939)

In the Matter of NEWCOAL CORPORATION and UNITED MINE WORKERS
OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O. and
PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT #5, AFFILIATED
WITH THE A. F. OF L., PARTY TO THE CONTRACT
In the Matter of. NEWCOAL CORPORATION and UNITED MINE WORKERS
OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O.
Cases Nos. C-1410 and R-1609, respectively.-Decided
November 13, 1939
Coal Mining Industry-S'ettlenacnt: stipulation providing for compliance with
the Act, including disestablishment of company-dominated union and reinstate-
ment with back pay in specified amounts as to certain employees-Order:
entered on stipulation-Investigation of Representatives: stipulated: respond-
ent refuses to recognize either of rival labor organizations unless certified by
the board-Unit Appropriate for Collective Bargaining: stipulated: all per-
sons employed in the mining operations of the respondent as production em-
ployees, excluding superintendents, mine foremen, section foremen, room
bosses, top bosses, entry bosses, electricians in a supervisory capacity, all
other supervisory employees, and "guards" or "watchmen"-Representatives:
eligibility to participate in choice : employees reinstated pursuant to Board's
Order ; stipulation as to-Election Ordered: pursuant to stipulation.
Mr. Arthur R. Donovan, Mr. Colonel C. Sawyer, and Mr. Robert
D. Malarney, for the Board.
Mr. Clarence J. Weber, of Chicago, Ill., for the respondent.
Mr. Ed. J. Morgan, of Madisonville; Ky., and Mr. Earl E. Houck,
of Washington, D. C., for the United.
Mr. John R. Kane, of Springfield, Ill., for the Progreasiw.
Mr. Langdon West and Miss Margaret Holmes, of counsel to the
Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Mine
Workers of America, District #23, affiliated With the Congress of
Industrial Organizations, herein called the United, the National
17 N. L. R. B., No. 51.
617
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board, herein called the Board, by the Regional
Director for the Eleventh Region (Indianapolis, Indiana), issued its
complaint 1 dated October 20, 1939, against Newcoal Corporation,
Madisonville, Hopkins County, Kentucky, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. A copy
of the complaint accompanied by notice of hearing was duly served
upon the respondent, the United, and Progressive Mine Workers of
America, District #5, affiliated with the American Federation of
Labor, herein called the Progressive. The respondent did not file
an answer to the complaint.
On or about October 18, 1939, the United filed with the Regional
Director a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On October 20, 1939, the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, Article III, Section 10 (c) (2), and Article II, Section
36 (b), of National Labor Relations Board Rules and Regula-
tions-Series 2, ordered an investigation upon the petition and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice and further ordered that the
two cases be consolidated.2 On November 1, 1939, the respondent,
the United, the Progressive, and counsel for the Board entered into
a stipulation in settlement of the case subject to the approval of the
Board'." This stipulation provides as follows:
Newcoal Corporation, hereinafter called the Respondent;'
United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations, hereinafter sometimes
called the United; the Progressive Mine Workers of America,
District #5, affiliated with the American Federation of Labor,
hereinafter sometimes called the Progressive; and Arthur R.
Donovan, Regional Attorney for the Eleventh Region of the
National Labor Relations Board, Colonel C. Sawyer, and Robert
D. Malarney, Attorneys, National Labor Relations Board, here-
inafter sometimes called the Board, hereby stipulate and agree
that :
'Although this case had been consolidated with several others by orders of the Board
dated August - 9, 1937 , May 3, 1939 , and July 17, 1939, respectively , these orders of con-
solidation were revoked by the Board 's order dated October 20, 1939.
2 The name of Robert M. Nance was incorrectly inserted in the caption of the complaint
case in the order of consolidation.
NLWCOAL CORPORATION 619
I
Upon amended charges filed by the United on December 14,
1938, the National Labor Relations Board, by its Regional
Director for the Eleventh Region, acting pursuant to authority
granted in Section 10 (b) of the National Labor Relations Act
(49 Stat. 449), hereinafter sometimes called the Act, and pur-
suant to authority granted by the Board's Rules and Regula-
tions, Series 2, Article II, Section 5, issued its Complaint on the
20th Day of October 1939, against the Respondent.
II
Upon a Petition duly filed by the United on October 18, 1939,
the Board, on October 20, 1939, directed that an investigation
of bargaining representatives be made pursuant to Section 9 (c)
of the Act. Upon authorization by the Board, the Regional
Director for the Eleventh Region, issued notice of hearing on
October 20, 1939. In the petition filed by the United, it was
stated that both the United and the Progressive claim to have
been designated as collective bargaining representatives by em-
ployees in the unit alleged in said petition to be appropriate,
and the United and the Progressive are each a party to said pro-
ceeding instituted by said petition by virtue of the Board's Rules
and Regulations, Series 2, Article III, Section 3.
III
The Respondent, the United and the Progressive withdraw
all motions and other pleadings filed by them in the proceedings
herein, except that the United does not withdraw the amended
charges and the petition hereinbefore mentioned in Articles I
and II of this stipulation.
IV
The Respondent, the United and the Progressive, hereby waive
their right to a hearing or hearings in these cases and all parties
expressly agree that the amended charges filed on December 14,
1938, the complaint and notice of hearing issued on October 20,
1939, the petition filed by the United on October 18, 1939, the
Order of the National Labor Relations Board directing an in-
vestigation and this Stipulation, may be introduced in the record
in the proceedings herein, by filing with the Chief Trial Exam-
iner of the National Labor Relations Board at Washington, D. C.
V
The Respondent , the United , and the Progressive , hereby
acknowledge due service of the complaint and notice of hearing
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the complaint and of the petition and notice of hearing
pursuant to the Board's Order directing investigation and hear-
ing and expressly waive any right or privilege which they may
have for ten (10) days notice of hearing and to the holding of a
hearing or hearings in these cases and also waive any right or
privilege which they may have to the making of findings of fact
and conclusions of law by the Board.
VI
The Respondent specifically admits each and every allegation
in paragraphs I and II of the Board's complaint herein and
stipulates and agrees that it is engaged in interstate commerce
within the meaning of Section 2 (6) and (7) of the Act.
The United, the Progressive and the Independent Miners
Union, are, each and all of, them, labor organizations within the
meaning of Section 2, (5) of the Act.
VIII
It is hereby stipulated and agreed that there be struck and
dismissed from paragraph VII of the Complaint in this case
the following name : Ben Marks.
IX
It is agreed by and between the Respondent and the Progres-
sive that the contract now in force and effect between the Re-
spondent and the Progressive is hereby cancelled and is void
and of no effect; provided, however, that nothing in this stipula-
tion shall preclude the Respondent from hereafter making an
agreement with the Progressive or airy other labor organization
(not established, maintained or assisted by any action defined
in the National Labor Relations Act as an unfair labor practice)
requiring, as a condition of employment, membership therein,
if such labor organization is the representative of the employees
as provided in Section 9 (a) of the Act; and it is agreed that
the Respondent will not recognize the Progressive or any other
labor organization as the exclusive representative of its em-
ployees until and unless such labor organization is certified by
the Board as such exclusive representative in the manner herein-
after provided.
X
It is hereby stipulated and agreed that all persons employed
as production employees at Respondent's Hopkins County Mine.
NEWCOAL CORPORATION 621
excluding superintendents, mine foremen, section foremen, room
bosses, face bosses, top bosses, entry bosses, electricians in a
supervisory capacity, all other supervisory employees, and
guards" or "watchmen," constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
XI
It is hereby stipulated and agreed by the Respondent, the
United, and the Progressive, that a question has arisen concern-
ing the representation of the employees in the bargaining unit
set forth in Article X of this stipulation in that the United and
the Progressive each claim to have been designated by employees
in the unit set forth above as representative for purposes of col-
lective bargaining, within the meaning of the Act, and that
Respondent refuses to recognize either the United or the Progres-
sive as the exclusive representative of all the employees in said
unit until and unless the Board has made a certification pursuant
to Section 9 (c) of the Act.
XII
The Respondent, the United, and the Progressive, stipulate
and agree that the Board shall forthwith issue a Direction of
Election. The election shall be conducted within thirty (30)
days from the issuance of the Direction of Election by the Board
and shall be conducted in accordance with and pursuant to the
Act, the Board's Rules and Regulations, and decisions of the
Board in representation cases. The election shall be for the
purpose of determining whether the eligible employees desire
to be represented for the purposes of collective bargaining by
the United, the Progressive, or by neither. The employees
eligible to vote in this election shall be all the employees in the
appropriate unit set forth in Article X, above, on the payroll
of the Respondent one week preceding issuance of a Direction
of Election pursuant to this Article and all those employees
ordered reinstated as a result of this stipulation. This stipula-
tion and the Election Report filed on the results of the election
shall constitute competent evidence upon which the Board may
make a certification pursuant to Section 9 (c) of the Act.
XIII
Upon the basis of the amended charges filed by the United
on December 14, 1938, the complaint herein and this stipulation,
°622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent expressly consents to the issuance by the Na-
tional Labor Relations Board of an Order to the following
effect :
ORDER
Upon the basis of this stipulation and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Newcoal Corporation, Madisonville,
Kentucky, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activity for the purposes of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act;
(b) Discouraging membership in the United Mine Workers of
America, District #23, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees,
or encouraging membership in the Progressive Mine Workers of
America, District #5, affiliated with the American Federation of
Labor, or any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees or in any
other manner discriminating in regard to their hire and tenure of
employment or any term or condition of their employment;
(c) Dominating or interfering with the administration of the
Independent Miners Union or dominating or interfering with the
formation or administration of any other labor organization of its
employees, or contributing support to any such labor organization;
(d) Recognizing the Independent Miners Union as the repre-
sentative of any of its employees for the purposes of dealing with
the Respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment;
2. Take the following affirmative action to effectuate the policies
of the National Labor Relations Act :
(a) Offer the following named employees immediate and full
reinstatement to the positions formerly held by them, or to posi-
tions of substantially equivalent employment without prejudice to
any rights or privileges previously enjoyed by them :
1. Herschel Elms.
2. Alex Porter.
3. Allie Randolph. '4
NEWCOAL CORPORATION 623
(b) Make whole the employees listed below by payment to them
of the sums set opposite their names for wages lost in consequence
of their discharges by the Respondent :
1. Herschel Elms___________________________________ $ 100.00
2. Alex Porter______________________________________ $ 100.00
3. Allie Randolph__________________________________ $ 100.00
(c) Withdraw and continue to withhold all recognition of the
Independent Miners Union as a representative of any of its em-
ployees for the purposes of collective bargaining with the Re-
spondent in respect to rates of pay, wages , hours of employment,
and other terms or conditions of employment, and completely dis-
establish the Independent Miners Union as such representative;
(d) Immediately post notices in conspicuous places throughout
its plant and maintain such notices for a period of sixty (60)
consecutive days or for the period until the Board issues its cer-
tification in Case No. XI-R-240, whichever period proves to be
of shortest duration , stating, ( 1) that the Respondent will cease.
and desist as aforesaid, (2) and that the Respondent will take the
affirmative action as aforesaid ; which notice shall contain the sub-
stance of the Order, but need not be in the exact language thereof;
(e) Notify the Regional Director for the Eleventh Region of
the National Labor Relations Board within a period of ten (10)
days after the entry of this Order what steps have been taken to
comply with said Order.
XIV
The Respondent hereby consents to the entry by an appropriate
United States Circuit Court of Appeals, upon application by the
Board, of a decree enforcing an Order of the Board as herein set
forth in Article XIII, above, and hereby waives further notice of
the application for such decree . The United and the Progressive
expressly waive any right or privilege to contest the entry of this
decree by an appropriate Circuit Court of Appeals and hereby
waive further notice of application for entry thereof.
XV
Wherever the facts , spelling of names, titles or other material
and documents in the record of these proceedings shall appear in-
consistent with the names , titles or other material set out and
made part of this stipulation , the spelling of names , titles and
other material in this stipulation shall be considered correct.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
XVI
.This stipulation shall be subject in all respects to the approval
of the Board and shall become effective immediately upon ap-
proval by the Board. If this stipulation is not approved by
the Board, it shall be of no force and effect and shall not be used
as evidence against the parties hereto in any subsequent proceeding
herein.
XVII
The entire agreement between all parties hereto is contained
within the terms of this stipulation, and there is no verbal agree-
ment of any kind which varies, alters, or adds to said stipulation
in any respect.
On November 10, 1939, the Board issued its order approving the
above stipulation and transferring the proceeding to the Board for
the purpose of entry of a decision and order by the Board.
. Upon the basis of the above stipulation and the entire record. in
the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 3
The respondent, an Illinois corporation with its principal office
and place of business in or near Madisonville, Hopkins County, Ken-
tucky, is engaged at a place of business called the Hopkins County
Mine in Madisonville, Hopkins County, Kentucky, in the mining,
sale, and distribution of coal.
During the fiscal years, 1936 and 1937, and the period from
January 1, 1938, to November 1, 1938, the respondent produced
77,980, 36,000 and approximately 24,000 tons of coal, respectively, at
its Hopkins County Mine. In the course of its business, the respond-
ent has continuously caused a substantial quantity of coal, consisting
of more than 50 per cent of the products mined, sold, and distributed
by it, to be supplied, delivered and transported in interstate commerce
from its Hopkins County Mine in the State of Kentucky. The
respondent agreed that it is engaged in interstate commerce within
the meaning of the Act.
We find that the above-described operations constitute a continuous
flow of trade, traffic, and commerce among the several States.
3 The facts set forth In this section are based upon allegations in the complaint admitted
by the respondent.
NEWCOAL CORPORATION
II. THE ORGANIZATIONS INVOLVED
625
United Mine Workers of America, District #23, affiliated with the
Congress of Industrial Organizations; the Progressive Mine Work-
ers of America, District #5, affiliated with the American Federation
of Labor; and Independent Miners Union, are labor organizations
as defined in Section 2 (5) of the Act.
III. THE QUESTION CONCERNING REPRESENTATION
In accordance with the terms of the stipulation, we find that the
United and the Progressive each claimed to have been designated by
employees in the unit hereinafter found to be appropriate for the
purposes of collective bargaining as their bargaining agent, and that
the respondent refuses to recognize either the United or the Pro-
gressive as the exclusive representative of all the employees in said
unit until and unless the Board has made a certification pursuant to
Section 9 (c) of the Act, and that therefore a question has arisen
concerning representation of the employees of the respondent.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has it close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
We find, in accordance with the terms of the stipulation, that all
persons employed in the mining operations of the respondent as
production employees, excluding superintendents, mine foremen, sec-
tion foremen, room bosses, face bosses, top bosses, entry bosses, elec-
tricians in a supervisory capacity, all other supervisory, employees,
and "guards" or "watchmen," constitute a unit appropriate for the
purposes of collective bargaining, and that such unit will insure to
the said employees the full benefit of their right to self-organization
and collective bargaining and will otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the employees of the respondent can best be resolved
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the holding of an election by secret ballot. In accordance with
the terms of the stipulation , we find that the employees eligible to
vote in the election shall be all employees in the appropriate unit on
the pay roll of the respondent one week preceding the issuance of our
Direction of Election , including the employees ordered reinstated
as a result of the Board's order , infra.
Upon the basis of the above findings of fact and the stipulation,
and upon the entire record in the case , the Board makes the
following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations, and Progressive Mine
Workers of America, District #5, affiliated with the American Fed-
eration of Labor, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. A question affecting commerce has arisen concerning the rep-
resentation of employees of Newcoal Corporation, Madisonville, Hop-
kins County, Kentucky, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
3. All persons employed in the mining operations of the respond-
ent as production employees, excluding superintendents, mine fore-
men, section foremen, room bosses, face bosses, top bosses, entry
bosses, electricians in a supervisory capacity, all other supervisory
employees, and "guards" or "watchmen," constitute a unit appro-
priate for collective bargaining, within the meaning of Section 9 (b)
of the Act.
ORDER
Upon the basis of the above findings of fact, stipulation, and the
entire record in the case, and pursuant to Section 10 (c) of the Na-
tional Labor Relations Act, the National Labor Relations Board
hereby orders that Newcoal Corporation, Madisonville, Kentucky, its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activity for the purposes of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Re-
lations Act;
(b) Discouraging membership in United Mine Workers of Amer-
ica, District #23, affiliated with the Congress of Industrial Organiza-
NEWCOAL CORPORATION 627
tions, or any other'hiboi•'organization of, its'employees,'or encouraging
membership in Progressive Mine Workers of America, District #5,
affiliated with the American Federation of Labor, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of
their employment;
(c) Dominating or interfering with the administration of the In-
dependent Miners Union or dominating or interfering with the for-
mation or administration of any other labor organization of its em-
ployees, or contributing support to any such labor organization;
(d) Recognizing the Independent Miners Union as the representa-
tive of any of its employees for the purposes of dealing with the
respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer the following named employees immediate and full re-
instatement to the positions formerly held by them, or to positions of
substantially equivalent employment without prejudice to any rights
or privileges previously enjoyed by them:
1. Herschel Elms.
2. Alex Porter.
3. Allie Randolph.
(b) Make whole the employees listed below by payment to them
of the sums set opposite their names for wages lost in consequence of
their discharges by the respondent :
1. Herschel Elins---------------------------------------- $100.00
2. Alex Porter------------------------------------------ $100.00
3. Allie Randolph--------------------------------------- $100.00
(c) Withdraw and continue to withhold all recognition of the In-
dependent Miners Union as a representative of any of its employees
for the purposes of collective bargaining with the respondent in re-
spect to rates of pay, wages, hours of employment, and other terms or
conditions of employment, and completely disestablish the Independ-
ent,Miners Union as such representative;
(d) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of sixty (60) consecu-
tive days or for the period until the Board issues its certification in
Case No. R-1609, whichever period proves to be of shortest duration,
stating, (1) that the respondent will cease and desist as aforesaid,
(2) and that the respondent will take the affirmative action as afore-
said; which notice shall contain the substance of the Order, but need
not be in the exact language thereof;
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Eleventh Region of the
National Labor Relations Board within a period of ten (10) days
after the entry of this Order what steps have been taken to comply
with said Order.
AND IT IS FURTHER ORDERED that the complaint in so far as it per-
tains to the case of Ben Marks be and hereby is dismissed.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board. Rules, and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargain-
ing with Newcoal Corporation, Madisonville, Kentucky, an elec-
tion by secret ballot shall be conducted within thirty (30) days
from the date of this Direction under the direction and supervision
of the Regional Director for the Eleventh Region, acting in this mat-
ter- as agent for the National Labor Relations Board and subject to
Article III, Section 9, of said Rules and Regulations, among all per-
sons employed in the mining operations of the Newcoal Corporation,
Madisonville, Kentucky, as production employees on the pay roll of
the respondent one week preceding the issuance of this Direction of
Election, including the employees ordered reinstated as a result of the
Board's order but excluding superintendents, mine foremen, section
foremen, room bosses, face bosses, top bosses, entry bosses, electricians
in a supervisory capacity, all other supervisory employees, and
"guards" or "watchmen," to determine whether they desire to be
represented, by United Mine Workers of America, District #23,
affiliated with the Congress of Industrial Organizations, or Progres-
sive Mine Workers of America, District #5, affiliated with the Amer-
ican Federation of Labor, for the.purposes of collective bargaining,
or by neither.