Norton Coal Corp.

National Labor Relations Board - Board Decisions

Nov 13, 1939

17 N.L.R.B. 569 (N.L.R.B. 1939)

In the Matter of NORTON COAL CORPORATION and UNITED MINE WORKERS
OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O. and PRO-
GRESSIVE MINE WORKERS OF AMERICA, DISTRICT #5, AFFILIATED WITH
THE A. F. OF L., PARTY TO THE CONTRACT
In the Matter of NORTON COAL CORPORATION and UNITED MINE WORKERS
OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O.
Cases Nos. C-1405 and-R-1601, respectively.-Decided November
13, 1939
Coal Mining Industry-Settlement: stipulation providing for compliance with
the Act, including disestablishment of company -dominated union and reinstate-
rnent with back pay in specified amounts as to certain employees-Order: entered
on stipulation-Investigation of Representatives: stipulated ; respondent refuses
to recognize either of rival labor organizations unless certified by the Board--
Unit Appropriate for Collective Bargaining: stipulated; all persons employed in
the mining operations of the respondent (including the Crabtree and Norton
Alines) as production employees, excluding superintendents, mine foremen, sec-
tion foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a
supervisory capacity, all other supervisory employees, and "guards" or "watch-
men"-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.
Gordon, Gordon & Moore, of Madisonville, Ky., 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 Progressive.
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 Labor
17 N. L. It. B., No. 47.
569
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Norton Coal Corporation, Nortonville,
Hopkins County, Kentucky, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor prac-
tices 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 accom-
panied by notice of hearing was duly served upon the respondent, the
United, and Progressive Mine Workers of America, District #5, affil-
iated with the American Federation of Labor, herein called the Pro-
gressive. 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 Regulations-Series 2, or-
dered 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 October 23, 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 pro-
vides as follows :
Norton Coal 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, Dis-
trict #5, affiliated with the American Federation of Labor, here-
inafter sometimes called the Progressive; and Arthur R. Dono-
van, Regional Attorney for the Eleventh Region of the National
Labor Relations Board, Colonel C. Sawyer and Robert D. Malar-
ney, Attorneys, National Labor Relations Board, hereinafter
sometimes called the Board, hereby stipulate and agree that :
I
Upon amended charges duly filed by the United on August 30,
1939, the National Labor Relations Board, by its Regional Direc-
1 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
consolidation were revoked by the Board's order dated October 20, 1939.
The name of Robert Nance was incorrectly inserted in the caption of the complaint
case in the order of consolidation.
NORTON COAL CORPORATION 571
tor for the Eleventh Region, acting pursuant to authority granted
in Section 10 (b) of the National Labor Relations Act (49 Star.
449), hereinafter sometimes called the Act, and pursuant to au-
thority granted by the Board's Rules and Regulations, Series 2,
Article 2, Section 5, issued its Complaint on the 20th day of Octo-
ber, 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 Direc-
tor 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 desig-
nated as collective bargaining representative by employees in the
unit alleged in said petition to be appropriate, and the United
and the Progressive are each a party to said proceeding instituted
by said petition by virtue of the Board's Rules and Regulations,
Series 2, Article 3, 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.
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 August 30, 1939,
the complaint issued on October 20, 1939, and notice of hearing,
the petition filed by the United on October 18, 1939, the Order of
the National Labor Relations Board directing an investigation
and the notice of hearing pursuant to this Order for investigation,
and this stipulation, may be introduced in the record in the pro-
ceedings herein, by filing with the Chief Trial Examiner of the
National Labor Relations Board at Washington, D. C.
V
The Respondent , the United, and the Progressive, hereby ac-
knowledge . service of the complaint and notice of hearing upon
the complaint and of the petition and notice of hearing pursuant
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Board's Order directing investigation and hearing 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 conclu-
sions of law by the Board.
VI
The Respondent specifically admits each and every allegation in
paragraphs 1 and 2 'of the Board's complaint herein and stipu-
lates and agrees that it is engaged in interstate commerce within
the meaning of Section 2 (6) and (7) of the Act.
VII
The United, the Progressive and the Independent Miners'
Union, are, each and all of them, labor organizations within the
meaning of Section 2, subdivision (5) of the Act.
VIII
It is agreed by and between the Respondent and the Progres-
sive that the contract now in force and effect between the Respond-
ent and the Progressive is, hereby cancelled and is void and of no
effect; provided, however, that nothing in this stipulation shall
preclude the Respondent from hereafter making an agreement
with the Progressive or any other labor organization (not estab-
lished, maintained or assisted by any action defined in the Na-
tional 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 employees until and unless
such labor organization is certified by the Board as such exclusive
representative in the manner hereinafter provided.
IX
It is hereby stipulated and agreed that all persons employed
in the mining operations of the Respondent (including the Crab-
tree and Norton mines) as production employees, excluding super-
intendents, mine foremen, section foremen, room bosses, face
bosses, top bosses, entry bosses, electricians in a supervisory capac-
ity, all other supervisory employees, and "guards" or "watchmen,"
constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
NORTON COAL CORPORATION
X
573
It is hereby stipulated and agreed by the Respondent, the
United, and the Progressive, that a question has arisen concerning
the representation of the employees in the bargaining unit set
forth in Article IX 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 collective
bargaining, within the meaning of the Act, and that Respondent
refuses to recognize either the United or the Progressive 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.
XI
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 representa-
tion 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
IX, above, on the payroll of Respondent one week preceding issu-
ance of a Direction of Election pursuant to this Article and all
those employees ordered reinstated as a result of this stipulation.
This stipulation 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.
XII
Upon the basis of the amended charges filed by the United
on August 30, 1939, the complaint herein and. this stipulation,
the Respondent expressly consents to the issuance by the National
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 Norton Coal Corporation,
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nortonville, 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 organ-
ization of its employees, or contributing support to any such
labor organization;
(d) Recognizing the Independent Miners Union as the rep-
resentative 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 to the employees listed below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any rights and privileges which they
might have :
1. Ruby Carlton 5. Melvin Oates
2. Dan Cavanaugh 6. W. A. Oglesby
3. J. W. Darnell 7. Gilmore Price
4. Irving Oates 8. Ezra Tittsworth
(b) Make whole the employees listed below by payment to
them of the sums set opposite their names which constitute
NORTON COAL CORPORATION 575
wages lost in consequence of layoffs by the Respondent of the
said employees :
1. Ruby Carlton______ $100 5. Melvin Oates ----------- $100
2. Dan Cavanaugh---- $100 6. W. A. Oglesby ---------- $100
3. J. W. Darnell------ $50 7. Gilmore Price__________ $50
4. Irving Oates ------ $50 8. Ezra Tittsworth________ $100
(c) Withdraw and continue to withhold all recognition of the
Independent Miners Union as a representative of any of its
employees for the purpose of collective bargaining with the
Respondent in respect to rates of pay, wages, hours of employ-
ment, and other terms or conditions of employment, and com-
pletely disestablish the Independent Miners Union as such
representative;
(d) Immediately post notices in conspicuous places through-
out its plant and maintain such notices for a period of sixty (60)
consecutive days or for the period until the Board issues its
certification in Case No. XI-R-237, 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 con-
tain the substance 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.
XIII
The Respondent hereby consents to the entry by an appropri-
ate United States Circuit Court of Appeals, upon application by
the Board, of a decree enforcing an Order of the Board as here-
inabove set forth in Article XII, above, and hereby waives fur-
ther 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.
XIV
Wherever the facts, spelling of names, titles or other material
and documents in the record of the proceedings herein shall
appear inconsistent 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.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
xv
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 proceed-
ing herein.
xv'
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, making it part of the record, 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
1. THE BUSINESS OF THE RESPONDENT s
The respondent, a Kentucky corporation with its principal office
and place of business in Nortonville, Hopkins County, Kentucky,
is engaged at a place of business in Nortonville, Kentucky, called
the Norton Mine and at another place of business in Illsley, Kentucky,
called the Crabtree Mine, in the mining, sale, and distribution of coal.
The respondent, in the course and conduct of its business, has con-
tinuously caused a substantial quantity of coal, consisting of more
than 50 per cent of the products mined, sold, and distributed by it
as a part of its business at its Norton Mine and at its Crabtree Mine,
to be supplied, delivered, and transported in interstate commerce from
its Norton Mine and Crabtree 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 continu-
ous flow of trade, traffic, and commerce among the several States.
H. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District #23, affiliated with the
Congress of Industrial Organizations, the Progressive Mine Workers
8 The facts set forth in this section are based upon allegations in the complaint admitted
by the respondent.
NORTON-COAL CORPORATION 577
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 Progres-
sive as the exclusive representative of all the employees in said unit
until and unless the Board has made a certification pursuant to Sec-
tion 9 (c) of the Act, and that therefore a question has arisen con-
cerning 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 a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
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 (includ-
ing the Crabtree and Norton Mines) as production employees,
excluding superintendents, mine foremen, section foremen, room
bosses, face bosses, top bosses, entry bosses, electricians in a super-
visory capacity, all other supervisory employees, and "guards" or
"watchmen," constitute a unit appropriate for the purposes of col-
lective bargaining, and that such unit will insure to the said em-
ployees 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 by
the holding of an election by secret ballot. In accordance with the
ferms of the stipulation, we find that the employees eligible to vote
in the election shall be all employees in the appropriate unit on the
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay roll of the respondent 1 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 repre-
sentation of employees of Norton Coal Corporation, Nortonville,
Hopkins 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 (including the Crabtree and Norton Mines) as production em-
ployees, 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 collective bargain-
ing, 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
National Labor Relations Act, the National Labor Relations Board
hereby orders that Norton Coal Corporation, Nortonville, Hopkins
County, 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 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 Progressive Mine Workers of America, District #5,
affiliated with the American Federation of Labor, or any other labor
NORTON COAL CORPORATION 579
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
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 which the Board finds will
effectuate the policies of the National Labor Relations Act :
(a) Offer to the employees listed below immediate and full rein-
statement to their former or substantially equivalent positions with-
out prejudice to any rights and privileges which they might have:
1. Ruby Carlton 5. Melvin Oates
2. Dan Cavanaugh 6. W. A. Oglesby
3. J. W. Darnell 7. Gilmore Price
4. Irving Oates 8. Ezra Tittsworth
(b) Make whole the employees listed below by payment to them
of the sums set opposite their names which constitute wages lost
in consequence of lay-oafs by the respondent of the said employees :
1. Ruby Carlton________ $100 5: Melvin Oates_________ $100
2. Dan Cavanaugh------ $100 6. W. A. Oglesby-------- $100
3. J. W. Darnell-------- $50 7. Gilmore Price________ $,0
4. Irving Oates_________ $50 8. Ezra Tittsworth______ $100
(c) Withdraw and continue to withhold all recognition of the
Independent Miners Union as a representative of any of its employees
for the purpose of collective bargaining with the respondent in respect
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) con-
secutive days or for the period until the Board issues its certification
in Case No. R-1601, whichever period proves to be of shortest dura-
tion, stating ( 1) that the respondent will cease and desist as afore-
said, (2) and that the respondent will take the affirmative action as
aforesaid ; which notice shall contain the substance of the Order, but
need not be in the exact language thereof;
580 DECISIONS OF 1TATIONAL 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.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 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 bargaining
with Norton Coal Corporation, Nortonville, Hopkins County, Ken-
tucky, an election 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 matter as agent for the National Labor Relations Board and
subject to Article III, Section 9, of said Rules and Regulations, among
all persons employed in the mining operations of the Norton Coal
Corporation, Nortonville, Hopkins County, Kentucky, as production
Employees in the employ of the respondent during the pay-roll period
:immediately preceding the date of this Direction of Election, includ-
ing 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 super-
visory 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 Progressive Mine Workers
,of America, District #5, affiliated with the American Federation of
Labor, for the purposes of collective bargaining, or by neither.