Perry Coal Co.

National Labor Relations Board - Board Decisions

Dec 30, 1959

125 N.L.R.B. 1256 (N.L.R.B. 1959)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perry Coal Company, Midwest-Radiant Corporation , and Pea-
body Coal Company and Progressive Mine Workers of
America, District 1
United Mine Workers of America , its District 12, and its Locals.
1227 and 1229 and Progressive Mine Workers of America,.
District 1.' Cases Nos. 14-CA-1687,1 4-CA-1688, and 141-CB-514.
December 30, 1959
DECISION AND ORDER
On March 23, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents, Peabody and United Mine Workers, had engaged in
and were engaging in certain unfair labor practices and recommend
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attac.ed
hereto. Thereafter, the General Counsel and the Respondents filed
exceptions to the Intermediate Report and supporting briefs. On
October 6, 1959, the parties participated in oral argument before the
Board in Washington, D.C.2
The Board has considered the Intermediate Report, the exceptions,
and briefs, the oral argument, and the entire record in these cases,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications.
1. The Trial Examiner found that the furnishing of a mailing list,
of employees by Peabody to UMW was in the nature of employer as-
sistance to UMW but not per se unlawful. Without passing on the
matter of whether the conduct was per se unlawful, we agree with
the Trial Examiner's conclusion, for the record shows, as detailed in
the Intermediate Report, that Peabody assisted UMW by _ numerous
other acts. In this context we find that furnishing a mailing list to
UMW constituted unlawful assistance in violation of Section 8 (a) (2}
of the Act.'
2. The Trial Examiner found, and we agree, that the unqualified
requirement of UMW membership contained in the 1941 District
Agreement between the Illinois Coal Producers Association and
UMW, an integral part of UMW's National Bituminous Coal Wage
'The Respondents and the Charging Union are herein respectively called Peabody,.
UMW, and Progressive.
'Contrary to the Respondents , we find no reason for disturbing the credibility resolu-
tions of the Trial Examiner, who had an opportunity to observe the deportment and
demeanor of the witnesses . Friend Lumber Company, 121 NLRB 62, footnote 1. The
Board is of the opinion that the Intermediate Report in these cases fairly sets forth all
material and pertinent facts necessary to a resolution of the issues . The Trial Examiner's
analysis of these facts is impartial , clear, and convincing.
3 Wagner Iron Works, a corporation, 104 NLRB445, 447.
1125 NLRB No. 110.
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1257
Agreement of 1950 as subsequently amended,4 which was extended to
Peabody's O'Fallon and Millstadt mines on October 1, 1959, provided
for an unlawful closed shop. For the reasons set forth in the Inter-
mediate Report, we agree that this provision was unlawful and was
not amended, modified, or nullified by the National contract. More-
over, we find that the union-security clause in the National contract
itself, requiring that "as a condition of employment employees shall
be, or become, members of the [UTN1W] to the extent and in the manner
permitted by law," also provides for an unlawful closed shop. It is
well settled that where, as here, a contract contains an unlawful pro-
vision, a general "savings clause" that does not specify to what extent
the provision is intended to be limited will not purge such a provision
of its illegal character.' Thus, the qualifying language in this pro-
vision-"to the extent and in the manner provided by law"-fails to
set forth in clear and unambiguous terms limitations on the require-
ment of union membership that conform the provision to the union-
security standards of Section 8(a) (3) of the Act.' We do not believe
that the burden of statutory and judicial interpretation can reasonably
be placed upon an employee to be acted upon at his peril. In view of
the vague and general savings clause, we conclude that the union-
security clause in the National contract provides for an unlawful closed
shop. We also find that the contract containing these union-security
provisions was illegal because the UMW was not in compliance with
Section 9 (f), (g), and (h) of the Act when the contract was executed
and maintained.
Accordingly, we find that UMW violated Section 8 (b) (2) of the
Act by demanding in June and July 1957 that Peabody enter into the
National contract containing illegal closed-shop provisions. We also
find that the Respondents subsequently violated Section 8(b) (1) (A),
8(b) (2) and 8(a) (1), (2), and (3) by entering into and maintaining
said National contract.
3. The Trial Examiner found that UMW's 'letter, dated July 1,
1957, to employees of the O'Fallon and Millstadt mines was coercive
within the meaning of Section 8(b) (1) (A) because its "plain intent
and reasonable effect" was that employees would be required as a
condition of employment to become UMW members. We agree for
' Herein ' called the National contract.
6 Ebasco Services Incorporated , 107 NLRB 617, 618. See also Red Star Express Lines
of Auburn, Inc. v. N.L.R.B., 196 F. 2d 78 (C.A. 2) ; N.L.R.B. v. Broderick Wood Products
Company, et al., 261 F. 2d 548 (C.A. 10).
The Respondents cite Lewis v. Quality Coal Corp ., 270 F. 2d 140, wherein the Circuit
Court of Appeals for the Seventh Circuit held on August 17, 1959, that the union-
security clause in the National contract did not violate Section 8 ( a) (3) of the Act.
That case arose in the contest of a private litigation between the parties. The court did
not have the benefit of the Board ' s* views as to this issue derived from the Board's
expertise in passing upon unfair labor practices . The Board, of course, is charged with
initial responsibility for the interpretation of various sections of the Act . Accordingly,
we do not regard the cited case as a proper precedent in the instant proceeding.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the reasons given by the Trial Examiner in the Intermediate Report.
We further find that the 8 (b) (1) (A) violation also stemmed from the
curtailment of the employees' right to select their own representative,.
which is one of the rights guaranteed in Section 7 of the Act.
4. We agree with the Trial Examiner that Peabody violated Section
8(a) (5) by refusing to bargain with Progressive on and since August
4, 1957. Peabody contends there was no support for the Trial Ex-
aminer^s unit findings. Peabody having made a timely withdrawal
from the Coal Producers Association of Illinois, Millstadt and O'Fal-
lon were, we find, removed from the multiemployer bargaining unit.
We conclude therefore that each of these mines is a separate entity
which comprises a natural and inherently appropriate bargaining
unit?
5. The Trial Examiner properly found that by ceasing payments
into the Progressive Welfare and Retirement Fund after September
30, 1957, Peabody violated Section 8(a) (2) and (1). The Trial Ex-
aminer then found that Peabody alone should reimburse the Progres-
sive Fund for all payments withheld since October 1, 1957. The Gen-
eral Counsel would also require UM VV to share this responsibility with
Peabody. In addition, the General Counsel requests the Board to
order both Respondents to make whole the employees for any loss
suffered by reason of the discriminatory discontinuance of the Pro-
gressive Fund payments. We find that the purposes of the Act will
be best effectuated by making both Respondents responsible for any
loss to employees resulting from the discriminatory discontinuance of
the Progressive Fund payments.
ORDER
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent Peabody Coal Company, its officers, agents, suc-
cessors, and assigns, shall:
a. Cease and desist from :
(1) Giving effect to the collective-bargaining agreement entered
into on or about October 1, 1957, with United Mine Workers of
America, its District 12, and its Locals 1227 and 1229, or to any
extension, renewal, or modification thereof, or any other contract or
agreement between it and the said labor organizations which may now
be in force.
(2) Entering into or signing any contract or making an arrange-
ment containing unlawful closed-shop provisions with United Mine
? Pepsi-Cola Bottling Company of Kansas City, 55 NLRB 1183, 1187.
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1259'
Workers, its District 12, and its Locals 1227 and 1229, or with any
other labor organization.
(3) Recognizing United Mine Workers of America, its District 12,
and its Locals 1227 and 1229, as the representative of any of its
employees at the O'Fallon and Millstadt mines for the purposes of
dealing with it concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, unless
and until said labor organizations shall have demonstrated their
exclusive majority representative status pursuant to a Board-
conducted election among the Respondent's employees.
(4) Assisting and contributing support to United Mine Workers
of America, its District 12, and its Locals 1227 and 1229, or to any
other labor organization.
(5) Encouraging membership in the above-named labor organiza
tions, or in any other labor organization of its employees, by discrimi
nating in regard to hire or tenure of employment or any term or con-
dition of employment, except to the extent permitted by the proviso to
Section 8 (a) (3) of the Act, as modified by the Labor-Management.
Reporting and Disclosure Act of 1959.
(6) Refusing to bargain collectively with Progressive Mine Work-
ers of America, District 1, as the exclusive representative of all its
employees at its O'Fallon and Millstadt mines, in the above-described.
units.
(7) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Progressive Mine Workers of
America, District 1, or any other labor organization, to bargain col-
lectively through representatives 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 or all such
activities except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as authorized
in Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Upon request, bargain collectively concerning wages, hours,
and conditions of employment with Progressive Mine Workers of
America, District 1, as the exclusive representative of all employees
in the aforementioned units, and, if understandings are reached, em-
body such understandings in signed agreements.
(2) Withdraw and withhold all recognition from United Mine
Workers of America, its District 12, and its Locals 1227 and 1229, as
the representative of any of its employees at the Millstadt and O'Fal-
lon mines for the purpose of dealing with it concerning grievances,
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until the said labor organizations
shall have demonstrated their exclusive majority representative status
pursuant to a Board-conducted election among the said employees.
(3) Make whole all employees at its O'Fallon and Millstadt mines
for any loss of earnings they may have suffered by reason of the dis-
criminatory lockout, as found herein, and in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(4) Preserve and, upon request, make available to the National
Labor Relations Board or its agents, for examination and copying,
all records necessary for the determination of the amount of backpay
due under this Order.
(5) Jointly and severally with the Respondent Unions, reimburse
all employees for moneys illegally exacted from them in the manner
and to the extent set forth in the section of the Intermediate Report
entitled "The Remedy."
(6) Jointly and severally with the Respondent Unions make whole
employees for any loss suffered by reason of the discriminatory dis-
continuation of the Progressive Fund payments.
(7) Post at its Millstadt and O'Fallon mines copies of the notice
attached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,
in conspicuous places, including all places where notices to employees
are customarily posted, and maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(8) Post at the same places and under the same conditions as set
forth in (7), above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Unions' notice herein, marked
"Appendix B."
(9) File with the said Regional Director within 10 days from the
date of this Order a report setting forth in detail the steps which it
has taken to comply with this Order.
2. The Respondents United Mine Workers of America, its District
12, and its Locals 1227 and 1229, their officers, representatives, agents,
successors, and assigns, shall :
a. Cease and desist from :
(1) Causing or attempting to cause Peabody Coal Company, its
officers, agents, successors, or assigns to discriminate against its em-
ployees in violation of Section 8 (a) (3) of the Act.
(2) Giving effect to the agreement of on or about October 1, 1957,
with the Respondent Peabody, or to any extension, renewal, modifica-
tion, supplement, or other contract with said Respondent, unless and
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1261
jntil said Respondent labor organizations shall have demonstrated
their exclusive majority representative status pursuant to a Board-
conducted election among the Respondent Peabody's employees in the
two mines.
(3) Restraining or coercing the employees of the Respondent Pea-
body in the right to engage in, or refrain from engaging in, any or
all of the activities guaranteed by Section 7 of the Act, except to the
extent that such right may be affected by an agreement executed as
authorized by the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act : o
(1) Jointly and severally with the Respondent Peabody make
whole the employees at Millstadt and O'Fallon mines for all moneys
illegally exacted from them in the manner and to the extent set forth
in the section of the Intermediate Report entitled "The Remedy."
(2) Jointly and severally with the Respondent Peabody make
whole employees for any loss suffered by reason of the discriminatory
discontinuation of the Progressive Fund payments.
(3) Entering into or signing any contract or making any arrange-
ment containing unlawful closed-shop provisions with Peabody Coal
Company or with any other employer.
(4) Post at the business offices of District 12 and Locals 1227 and
1229 copies of the notice attached hereto marked "Appendix B."
Copies of said notice, to be furnished by the Regional Director for
the Fourteenth Region, shall, after being duly signed by an official
representative, be posted immediately upon receipt thereof and be
maintained for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(5) Mail to the said Regional Director signed copies of the notice
attached hereto marked "Appendix B," for posting at the Respondent
Peabody's Millstadt and O'Fallon mines.
(6) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent Unions have
taken to comply with the Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES OF OuR O'FALLON AND MILLSTADT MINES
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, as amended, we hereby notify you that :
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT encourage membership in United Mine Workers
of America, its District 12, and its Locals 1227 and 1229, or in any
other labor organization of our employees, by discriminating in
regard to hire, tenure, or any term or condition of employment,
except to the extent authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT give effect to any and all agreements and con-
tracts, supplements thereto or modifications thereof, or any super-
seding contract with the above-mentioned labor organizations.
WE WILL NOT enter into or sign any contract or make any
arrangement containing unlawful closed-shop provisions with
United Mine Workers, its District 12, and its Locals 1227 and
1229, or with any other labor organization.
WE WILL NOT contribute financial or other support to the above-
named labor organizations.
WE WILL withdraw and withhold recognition from the above-
named labor organizations, or any successor thereto, unless and
until they shall have demonstrated exclusive majority representa-
tive status pursuant to a Board-conducted election among our
employees at the said mines.
WE WILL, upon request, bargain collectively with Progressive
Mine Workers of America, District 1, as the exclusive representa-
tive of all our employees in the units described herein with respect
to rates of pay, hours of employment, or other conditions of
employment, and, if understandings are reached, embody such
understandings in signed agreements. The bargaining units are :
(1) All employee's at the O'Fallon mine covered by the
1952 contract between Progressive and the Coal Producers'
Association of Illinois, and
(2) All employees at the Millstadt mine covered by the
same contract, excluding such categories of employees as
required by law.
WE WILL NOT give effect to any checkoff cards, heretofore
executed by our employees, authorizing deductions from their
wages for remittance to United Mine Workers of America, its
District 12, and its Locals 1227 and 1229.
WE WILL refund to all our employees and former employees
from whose wages we have deducted funds, for transmittal to
the aforesaid United Mine Workers of America, and said District
and Locals, the amounts of such deductions, as provided in the
Order, to the end that each employee shall be reimbursed for such
moneys Aso deducted.
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1263
WE WILL, jointly and severally with the United Mine Workers
,of America, make whole our employees for any loss suffered by
reason of the discontinuance of the payments into the Progressive
Welfare and Retirement Fund.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their statutory rights.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except to
the extent that this right may be affected by agreements in conformity
with Section 8 (a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
PEABODY 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.
APPENDIX B
NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS OF AMERICA,
ITS DISTRICT 12, AND ITS LOCALS 1227 AND 1229, AND TO ALL
EMPLOYEES OF PEABODY COAL COMPANY AT ITS MILLSTADT AND
O'FALLON MINES
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, as amended, we hereby give notice that:
WE WILL NOT give effect to our agreements of, on, or about
October 1, 1957, or to any other contract with Peabody Coal
Company covering employees at the above-named two mines,
unless and until we shall have demonstrated our majority repre-
sentative status pursuant to a Board-conducted election among
employees at the aforesaid mines.
WE WILL NOT enter into or sign any contract or make any
arrangement containing unlawful closed-shop provisions with
Peabody Coal Company or with any other employer.
WE WILL refund to the employees and former employees of
Peabody Coal Company, employed at its Millstadt and O'Fallon
mines, such amounts deducted from their earnings which were
paid to us, as provided by the aforesaid Order.
WE WILL jointly and severally with Peabody Coal Company
make whole employees for any loss suffered by reason of the
discriminatory discontinuance of payments into the Progressive
Welfare and Retirement Fund.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT restrain or coerce the employees of the said.
employer in their right to engage in, or refrain from engaging in,.
any or all of the activities guaranteed by Section 7 of the National
Labor Relations Act, as amended , except to the extent that such
right may be affected by an agreement requiring membership in.
a labor organization as a condition of employment , executed in
conformity with Section 8(a) (3) of the Act, as modified by the.
Labor-Management Reporting and Disclosure Act of 1959.
UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
DISTRICT 12, UNITED MINE WORKERS
OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 1227, UNITED MINE WORKERS
OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------
(Representative ) ( Title)
LOCAL 1229, UNITED MINE WORKERS
OF AMERICA,
Labor Organization.
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
Charges and amended charges having been duly filed and served in each of
the above -entitled cases , an order consolidating these cases, complaints and a
notice of hearing thereon having been issued and served by the General Counsel 1
of the National Labor Relations Board , and answers having been filed by the above-
named Respondents , a hearing involving allegations of unfair labor practices in
violation of Section 8(a)(1), (2), (3), and ( 5) and 8 (b)(1)(A) and ( 2) of the
National Labor Relations Act, as amended , 61 Stat . 136, was held in St . Louis,
Missouri , on October 21, 22 , 23, 24, 27 , 28, and 29, 1958 , before the duly designated
Trial Examiner.
At the hearing all parties were represented , were afforded full opportunity to be
heard , to examine and cross-examine witnesses , to introduce evidence pertinent
to the issues , to argue orally upon the record , and to file briefs and proposed findings
of fact and conclusions of law. Argument was waived . Time' for filing briefs
'During the hearing Harry G. Carlson, Chief Law Officer , Fourteenth Region, made
special appearances on behalf of General Counsel.
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1265
was extended to January 27, 1959. Briefs from all parties except the Charging
Party have been received.
At the conclusion of the hearing ruling was reserved upon motions to dismiss
.made by the Respondents. Disposition of said motions is made by the following
-findings, conclusions, and recommendations.
Concurrent with its brief, counsel for the Respondent Union filed with the Trial
Examiner a motion for correction of the official transcript as to numerous typo-
graphical errors. Showing was made on the covering letter that copies of the motion
were served upon each of the other parties. No objection having been received, said
motion is hereby granted. The motion and covering letter are made a part of the
official record in the case.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. COMMERCE ACTIVITIES OF THE RESPONDENT COMPANIES
At the hearing, the following stipulation was entered into by all parties and
is adopted as a finding of fact:
1. Perry Coal Company, a Respondent herein, prior to its dissolution in October
1957, was engaged in the business of mining, processing, and selling coal and
annually shipped coal valued in excess of $50,000 from points located within the
State of Illinois to points outside the State of Illinois.
2. Midwest-Radiant Corporation, a Respondent herein, prior to its dissolution
in October 1957, was engaged in the business of mining, processing, and selling coal
and annually shipped coal valued in excess of $50,000 from points located within
the State of Illinois to points outside the State of Illinois.
3. Peabody Coal Company, a Respondent herein, is an Illinois corporation. It is
a miner, processor, and seller of coal, and annually ships coal valued in excess of
$50,000 directly across State lines.
4. The parties hereto admit that Perry Coal Company, Midwest-Radiant Corpo-
ration, and Peabody Coal Company, at all times during their existence which
are material to these proceedings, were and/or are engaged in interstate commerce
within the meaning of the National Labor Relations Act as amended, and at such
times were and/or are subject to the jurisdiction of the National Labor Relations
Board.
IT. THE LABOR ORGANIZATIONS INVOLVED
The Respondents, United Mine Workers of America, herein called United, its
District 12, and its Locals 1227 and 1229, and the Charging Party, Progressive
Mine Workers of America, herein called Progressive, District 1, are labor organiza-
tions admitting to membership employees of the Respondent Companies.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
In introductory summary, it may be said that the relevant facts in this case
depict a local and notably peaceable episode in the long-existing and sometimes
violent rivalry between the United and Progressive as bargaining representatives
for the Nation's mineworkers. Considered now in terms of a legal controversy,
the aftermath of this episode finds General Counsel and Progressive on one side
and United and Peabody (the Employer) on the other. The nub of the dispute
is whether or not in 1957 Peabody (or its two acquired companies) illegally assisted
United in its illegal wresting from Progressive the contractual right to represent
employees at two mines operated by Peabody. And the real crux of General
Counsel's complaint appears to be that by their conduct both the Employer and
United deprived the employees themselves of their guaranteed right under the Act
to select their own bargaining agent, freely and without coercion on the part of
either the Employer or United.
First a brief review of the setting. Two mines are involved, both in Illinois: one
at Millstadt, with about 70 employees; the other at O'Fallon, with an employee
force of about 350. Until about May 1956, the Millstadt mine had been owned
and operated by the Respondent Midwest-Radiant Corporation which also owned
the capital stock of the Respondent Perry Coal Company, the latter owning and
operating the O'Fallon mine. In May 1956, the Midwest Coal Corporation, a
wholly owned subsidiary of the Respondent Peabody, acquired the capital stock of
Midwest-Radiant, and on October 3, 1957, by process of merger and liquidation
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midwest Coal Corporation passed out of the picture and the Respondent Peabody
under its own name assumed ownership and operation of the two mines-which it
had, in effect, actually controlled since May 1956.
At Millstadt since 1938 or 1939 and at O'Fallon since 1932 Progressive had
exclusively represented the employees and had been a party to contractual agree-
ments with the respective owners and operators through the Coal Producers Asso-
ciation of Illinois , of which employer group both Midwest-Radiant and Perry were
participating members. During the period especially material to the issues in this
case there were in existence , until September 30, 1957, such contracts, Peabody
having assumed these obligations when obtaining control of the mines involved.
Also for many years there has been contractual relationship between Peabody,
a member of the Illinois Coal Operators Association, and the United. Both are
and have been parties to the National Bituminous Coal Wage Agreement of 1950
and subsequent amendments . The apparently latest material amendment , that of
1956, repeats the following pertinent provision which had appeared in earlier
amendments:
... this agreement, by and between the coal operators, associations, com-
panies and individuals signatory hereto . as parties of the first part, and
the International Union, United Mine Workers of America . . . as party of
the second part, covering all of the bituminous coal mines owned or operated"
by said first parties, amends . . . etc. [Emphasis supplied.]
And the 1952 amendment, specifically carried forward and preserved by the 1956
amendment, contains this provision:
. . . the Operators signatory hereto agree that this Agreement covers the
operation of all of the coal lands owned or held under lease by them or any
of them or by any subsidiary or affiliate at the date of this Agreement, or
acquired during its term which may hereafter (during the term of this Agree-
ment ) but put into production. [Emphasis supplied.]
Although as noted above Peabody effectively "acquired," through control, the
Millstadt and O'Fallon operations in May 1956, so far as the record shows the
Respondent United made no move to claim representation rights at these two mines
for about a year. In May or June 1957, President Hugh White, of United's District
12, gave "notice, oral" (according to his own testimony) of his demand that Peabody
"comply with the terms of that contract" to William V. Hartman, general mine
superintendent for Peabody, and to H. C. McCollum, a vice president of Peabody
,and formerly a vice president of Perry.2 White's testimony makes it clear that his
demand was based upon the existing contract, above referred to, and not upon any
claim that District 12 had any membership or representation among employees of
either mine. . there was never any argument or dispute about the meaning of
the contract, that it did apply to all Peabody operations," testified White. He con-
tinued, "Hartman and McCollum never did tell me that the matter would have to
be referred to counsel. They agreed with the language in the contract." White
further testified that Hartman and McCollum, while "they agreed with the language
of the contract," did not apply it "automatically" because "there was a termination
clause in the other contract (with Progressive) that had to be considered. The
contract was still in existence as well as ours." And he also conceded that these
two officials assured him "that when the contract with Progressive ran out they
would sign a contract with the United . after proper legal procedure was com-
plied with." He defined this "proper legal procedure" as "the termination of the
contract that was then in existence at that mine and the majority of the employees
joining the United Mine Workers and Peabody Coal Company applying this contract
at those two mines as they had signed their names to it to do."
White's testimony regarding his demand and the position taken by Peabody officials
is convincing and credible, in the opinion of the Trial Examiner , and substantially
reflects the situation as it existed in May or June 1957.3
2 The finding that such demand was made in May or June rests upon HaTtman's testi-
mony. White said he could not recall the dates.
s Although, as the record shows, McCollum's testimony of the foregoing point was
somewhat less than forthright and candid, the following quoted testimony of Hartman
is in substance corroborative of White's account : "I told Mr. White that we couldn't
honor the United Mine Workers down there because we had a contract with the Pro-
gressive Mine Workers and he didn't represent the nien as the bargaining agent for the
mine . . . I may have said that if he was the bargaining agent for the mine we would
recognize him, but we couldn 't under the present circumstances."
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1267
Peabody thus found itself in this dilemma, its urgency precipitated if not in nature
created by White's demand: as to the two mines it was concurrently a party to two-
exclusive-recognition contracts, one with Progressive and the other with United.
Apart from the legal concepts of overlapping contracts, appropriate bargaining units,
and rights accorded employees by Congress, the Employer was confronted by a prob-
lem consisting of at least two factors of a most practical nature: (1) it was operating
some 27 other mines in Illinois under a United contract at a time when its two.
newly acquired mines were operating under a contract with United's historical rival,
the Progressive; and (2) from its own payroll and because of dues checkoffs, it
well knew that most if not all of the employees at Millstadt and O'Fallon were
members of Progressive and had been for many years.
The allegations of the complaint relate to actions and conduct by both United.
and Peabody beginning in point of time from the above-described demand by White
until the Employer's ultimate submission to it, on or about October 1, 1957.
In substance, the complaint claims these issues of fact with respect to the-
Employers:
(1) In June 1957, furnishing United with names and addresses of employees
at the Millstadt and O'Fallon mines.
(2) For specified periods in July 1957, keeping these two mines closed, in
order to encourage membership in United.
(3) In July 1957, through certain named agents threatening employees with,
the closing of these two mines unless they joined United.
(4) In July 1957, refusing to bargain with Progressive, at a time when that
labor organization represented a majority of employees at the two mines in an
appropriate unit.
(5) Terminating on September 30, 1957, its collective bargaining agreement
with Progressive.
(6) On the same date discontinuing payments into Progressive's Welfare and.
Retirement fund.
(7) On or about October 1, 1957, recognizing United as the exclusive rep-
resentative of employees at both mines although United did not represent an
uncoerced majority of said employees.
(8) On the same date entering into a contract with United, said contract con-
taining an unlawful union security clause, and thereafter enforcing said contract.
In substance, the complaint claims these issues of fact with respect to United:
(1) Since June 1957, causing or attempting to cause the employer to dis--
criminate against employees at the two mines in regard to conditions of em-
ployment by requiring:
a. the employer to shut down the two mines.
b. the employer to discontinue payments to Progressive's Welfare and.
Retirement Fund.
c. the employer to enter into, maintain, and enforce the contract with
United above referred to.
(2) Informing employees at the two mines that United was requiring the
employer to enter into and enforce said contract with it, and to cease recogniz-
ing Progressive.
(3) Entering into the contract, on or about October 1, 1957, with the em-
ployer, said contract containing an unlawful union security clause, at a time
when it did not represent an uncoerced majority of the employees, and when it
had not received from the Board appropriate notice of compliance with section
9(f), (g), and (h) of the Act.
B. List furnishing
As to this issue there is small question of fact. Both Hartman and McCollum
readily admitted that in May or June they furnished White with the names and
addresses of employees at the two mines: Hartman for the Millstadt mine, which.
he then supervised as general superintendent for Peabody and vice president of-
Midwest-Radiant; and McCollum for the O'Fallon mine, over which he had super-
vision as vice president of both Peabody and Perry. Both officials, as witnesses, said
they were aware of why White wanted the lists and what would be done with them.
McCollum stated: "I knew he was going to attempt to organize these men because
he had told me."
Although there is no evidence that Progressive made a similar request, since this-
labor organization exclusively represented both mines it is reasonable to suppose-
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it already possessed such a list . And Hartman 's testimony is unchallenged that
there was nothing "secretive" about such lists, and they had previously been given
to "equipment manufacturers and manufacturers ' representatives" and other
organizations.
It appears reasonable to conclude that the furnishing of these lists to White was
in the nature of assistance by the Employer to United , since these officials had
foreknowledge-or belief-as to their use by United . It appears somewhat short of
reasonable , however, in the opinion of the Trial Examiner, to hold , as General
Counsel alleges in the complaint and urges in his brief , that such "assistance ," per se,
was "unlawful." 4
The Trial Examiner considers that Morganton Full Fashioned Hosiery Company
et al. (107 NLRB 1534 ), cited by United in its brief, contains the governing con-
clusion . There the Board declined to set aside an election on the ground that a list
of employees had been furnished to one labor organization and not to another, under
circumstances essentially similar to those existing here. The Board said:
In view of the absence of any request by the Union for a mailing list or any
valid excuse for the Union's failure to request such list from the Employer, we
find no improper assistance to the Petitioner or interference with the election
as the result of the incident hereinabove mentioned.
The Trial Examiner concludes and finds, therefore , that the furnishing of the
above-described lists did not, per se, constitute unlawful assistance to United and
interference within the meaning of the Act as alleged by the complaint. The fact
of assistance , however, as a detail in the larger picture of events described below,
may well have bearing upon other issues.
C. United's letter to employees
The first overt move, so far as the record shows, by either party to the Peabody-
United contract , to bring the employees of these two mines under its provisions, was
made by Hugh White on July 1, when he sent to all employees at each mine a long
letter, from which the following portions are quoted: 5
The National Bituminous Coal Wage Agreement signed by the United Mine
Workers of America and all bituminous coal operators provides that the con-
tract applies, or covers, all of the bituminous coal mines owned or operated by
the signatories to that Agreement. Recently the United Mine Workers of Amer-
ica has served notice on the Peabody Coal Company that they must comply
with the provisions in the contract , and all provisions of the contract be applied
at the Midwest Radiant Mine #1. [In the other letter "at the St. Ellen Mine."]
The United Mine Workers of America is requesting that each and every em-
ployee subject to the jurisdiction of the contract become members of the United
Mine Workers of America. There will be no initiation fee charged these mem-
bers. The dues for working members is $4.25 per month. They will have all
rights and privileges the same as any other member of our Organization who
has never been a member of the Progressive Mine Workers.
The District and International Union of the United Mine Workers of America
extend a cordial invitation to all employees of the Midwest Radiant Mine #1
[or, in the other letter , "St. Ellen Mine"] to affiliate with the United Mine
Workers and participate in the benefits as outlined in this letter.
I am enclosing a membership card which you are requested to sign and return
promptly to the District Office in the stamped self-addressed envelope we have
enclosed for your convenience. [Emphasis supplied.]
It is upon the text of this letter that General Counsel bases his contention, noted
as point (2) against the United in section III, A, above, that United "made it known
to all employees at the Millstadt and O'Fallon mines that said Respondents were re-
quiring Peabody: (a) to enter into, maintain and enforce the collective bargaining
4 Paragraph X of the complaint is devoted solely to an allegation of such list furnish-
ing, and paragraphs XXIV and XXV specifically cite paragraph X as setting forth a
violation of Section 8(a) (1) and (2) of the Act. The brief reviews a number of items
of conduct on the part of the Employer, including the supplying of lists, and then urges :
"This, and all of this, was unlawful assistance . . . .
5 For purposes of brevity , certain paragraphs relating to numerous benefits which
might be enjoyed by applicants for membership in United are omitted.
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1269
contract ... (b) to cease recognizing Progressive .. ," and that by this action
United "restrained and coerced" employees in the exercise of legal rights in viola-
tion of Section 8 (b) (1) (A).
As to the fact alleged that the employees were notified that United was "requiring"
Peabody to honor the Peabody-United contract, by maintenance and enforcement,
there appears to be no reasonable doubt that the text quoted above amply establishes
it or that any literate employee receiving and reading the letter so understood its
plain meaning. The statement is unequivocal: United "has served notice on Peabody
Coal Company that they must comply with the provisions of the contract, and all
provisions of the contract be applied" at the two mines.
Notification to employees having been found, what was its import in terms of the
Act? Section 8(b) (1) (A), which General Counsel evokes as having been violated,
states that it is an unfair labor practice for a union or its agents "to restrain or
coerce . employees in the exercise of the rights guaranteed in section 7," and
Section 7 states:
Employees shall have the right to self-organization , to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have the right
to refrain from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in section 8(a)(3).
At least two rights accorded by Congress appear to be here involved: (1) the right
to join or not join a labor organization, and (2) the right to select or "choose" their
own bargaining representative.
As noted heretofore, at the time they received this letter from United, most if not
all employees at both mines were and for many years had been members of Progres-
sive, United's rival, and they were working under an exclusive recognition agreement
between Progressive and their employer-an agreement which by its terms still had
3 months to run.
Having fixed the employees as Progressive members, operating under a Progres-
sive contract, and avoiding speculation as to the subjective effect upon individual
employees which United's July 1 letter may or may not have had, the Trial Examiner
is confronted with the question: Was the text of that letter of a nature which, under
the circumstances, may reasonably be found to be "coercive"?
First as to the matter of union membership. What, if anything, on this point is
contained in the United-Peabody contract: (1) Which United in its letter stated
"must" be complied with by the Employer, (2) which would be applicable to "each
and every employee subject to the jurisdiction of the contract," and (3), if applied,
would deprive employees of rights guaranteed by the Act?
The National Bituminous Coal Wage Agreement of 1950, from which other
quotations have been made earlier in this report, provides:
It is further agreed that as a condition of employment all employees shall be, or
become, members of the United Mine Workers of America, to the extent and
in the manner permitted by law . . . . [Emphasis supplied.]
An integral part of the same printed document that contains the above-quoted Na-
tional Agreement is the "Wage Agreement and Working Conditions between the
Illinois Coal Operators Association and The International Union, United Mine
Workers of America and District No. 12, United Mine Workers of America." This
"Wage Agreement and Working Conditions," bearing the effective date of April 1,
1941, contains the prefatory statement , "This is the last District Agreement made"
and the following introductory note:
This last Illinois District Agreement remains in full force and effect in its pro-
visions except where they have been amended, modified and or nullified by the
National Bituminous Coal Wage Agreements incorporated in this book.
The same agreement contains this provision:
It is agreed that, as a condition of employment , all employees shall be mem-
bers of the United Mine Workers of America . . . .
At another point is this provision:
. the Operators will [employ] members of the U. M. W. of A. when
available . . . .
535828-60-vol. 125-81
1
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And at another point is this provision:
As rapidly as the requisite corps of competent engineers is provided at the dif-
ferent mines, the engineers shall become members of the United Mine Workers
of America and thereafter only members thereof shall be employed as hoisting
engineers when such members competent to fill the position can be obtained.
So far as the Trial Examiner can discover from examination of the master docu-
ment and its later amendments, the three provisions quoted immediately above have
never been specifically "amended, modified and/or nullified." They are included
and printed in a single document obviously published after the National Agreement
was executed.
Such provisions are an integral part of the basic contractual agreement between
United and Peabody, and effectively articulate (whether enforced or not) a "closed
shop" which is specifically prohibited by the Act and therefore illegal.
The Trial Examiner concludes and finds that the plain intent and reasonable
effect of United's notification on July 1, 1957, to all employees at the two mines
was that they would be required, as a condition of continued employment, to become
members of United, and was therefore coercive within the meaning of Section
8(b)(1)(A).6
D. Failure to reopen the two mines
1. Millstadt
White's letter to employees was sent out during the annual vacation period at
both mines, this period beginning on June 28 and scheduled to end on July 8.
At Millstadt, however, because certain repair work previously planned took longer
to complete than expected, this mine was rescheduled to reopen on July 15, a
Monday. During the first weekend of such repairs the crew worked overtime, and
the work was finally completed on Friday, July 12. Although the repairs were
finished the mine in fact did not reopen until Saturday, July 20.
Testimony developed a sharp dispute as to the reason for the extended delay
of resuming operations at this mine. In substance it is General Counsel's contention
that the mine was kept closed to force employees to join United. The Respondent
Employers deny such motive and affirmatively claim certain economic reasons.
The following events, described in summary, tend to support General Counsel's
claim.
(1) Shortly before noon on July 12, General Superintendent Hartman telephoned
to Mine Superintendent Fred Schroder, and instructed him not to reopen the mine
on Monday and to so inform the men. Schroder approached the repair crew, then
finishing lunch, and told them there would be no work on Monday. They asked
why, since the repairs were that day being completed. Schroder told them that the
Company could not operate these 2 mines and have its other 27 mines shut down,
and added that Peabody had a standing agreement not to operate a mine unless
it was United.?
The next day Schroder telephoned to Frank Kreitner, president of Progressive's
local at this mine, and told him that work would not resume on Monday as scheduled.
Kreitner said he must have some reason to give the men and asked for a conference
that afternoon. Kreitner and his pit committee went to the office, where at first
Schroder was alone. Kreitner asked him why the mine would not work and
Schroder replied that "they couldn't work two Progressive mines and shut down
27." A few minutes later General Superintendent Hartman came in. Kreitner
turned to him and said, "I understand the mine isn't going to go unless we go
United Mine Workers." Hartman replied, "Frankly, I won't comment on that,"
and referred the following letter to Kreitner and the committee of employees:
O As a witness White admitted that he had this letter printed in local newspapers and
a second mailing to employees made in August 1957. Both acts were similarly coercive
and violative of the same section of the Act.
7 The findings as to Schroder's statements on this occasion rest upon the credible
testimony of repairmen Ross and Girardi. Although Schroder somewhat evasively denied
that he was asked why the mine would not reopen, he admitted that he discussed with the
repairmen United's organizational drive, and then the following colloquy occurred, on
direct examination :
Q. On that occasion when you were discussing these matters with the men present
there did you say that the company would not operate two mines and shut 29 mines
down?
A. Yes, sir.
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1271
You are hereby formally advised that the joint Bituminous coal wage
contract to which the Peabody Coal Company is signatory is effective at any
and all mining operations operated by the signatory company.
Full compliance to the terms of the aforesaid agreement is expected from
the Peabody Coal Company by the United Mine Workers of America.
Very truly yours,
(S) HUGH WHITE,
President.
As Hartman finished he said to the committee, "That's it, boys, United is forcing
us to comply." 8
As witnesses both Schroder and Hartman claimed that at this meeting the latter
told the committee, according to his testimony, that the reason for the "temporary
suspension of work [was] because of our stockpile and these slow orders."
Schroder's testimony was more evasive. He declared that Hartman "looked out
the window as he said this. I don't remember whether he said that pile or this
stockpile or what, but the inference was there that when our stockpile was down
we would start the mine back to work." Both Kreitner and McGee denied that this
reason was given for the continued shutdown, and these denials are credited by
the Trial Examiner as being the more credible. Had such an economic reason
actually existed, it is reasonable to believe that Schroder himself would have been
informed and would so have told the committee when it first raised the question
with him. And Hartman readily admitted that after the committee had been shown
the United letter he told them, "Well, we just can't do anything about it, our hands
are tied." Furthermore, as noted hereinafter, the evidence adduced by the Respond-
ent fails to support a reasonable conclusion that the stockpile or orders were in
fact a factor in occasioning the extended shutdown.
In further support of the above conclusion that the committee on July 13 was not
given a "stockpile" reason for the delay in resumption of operations is the uncontra-
dicted testimony of Arnold Talheim, a mine employee. He said that during the
week of July 15, after the meeting with the pit committee, he asked his neighbor,
Fred Schroder, when the "mine was going back to work" and that Schroder replied
"not until the union or [and] the company had got things settled .. .
And in substantial support of the above findings that the men were effectively in-
formed that the real reason for the shutdown was to provide employer support
to United's campaign is the credible testimony of a management representative,
Foreman Alvin Pruessing. On Friday, July 19, having heard that the mine would
reopen the following day, he telephoned to Superintendent Schroder and offered
to come in, although then on his vacation (having had charge of the repair crew),
if he could be of any help on that day. Schroder told him he could be of assistance,
and advised him to come in. He reported on July 20 and met Hartman, to whom
he remarked that "it seems peculiar that you started on time and a half." He then
asked Hartman what he knew 'about the "union situation." Hartman replied,
"Well, as much as I know there's enough cards in now to make the union [mine]
go United Mine Workers." 9
To support its affirmative claim that the Millstadt mine was kept closed for eco-
nomic causes, the Respondent's witnesses gave confused and unconvincing testi-
mony, which fails to withstand scrutiny. It appears unnecessary here to recite,
in detail, all of the relevant testimony. Disposition of but two points is enough,
in the opinion of the Trial Examiner, to establish the incredibility of the whole. First,
as to Hartman's claim that "I decided that the amount of coal we had in the stock-
pile and the past performance on the amount of orders that we had coming in, not
orders but trucks coming in for coal that we wouldn't start Monday, we would stay
down and get that pile cleaned up." Later in his testimony he said that beginning
that Monday he stopped all sales, and issued orders to Schroder "don't load any more
coal." Just how Hartman could expect to lower a stockpile by permitting no coal
to be removed from it remains an unexplained mystery in the record. As to the
second point, and apparently not unaware of the inconsistency of his other testimony,
s The findings as to this conference rest upon the credible testimony of Kreitner,
corroborated by that of pit committeeman McGee. Schroder said, with reference to, the
statement of working 2 Progressive mines and shutting down 27: "I may have made that
statement. S don't recall it."
U In a sworn statement given by Pruessing to a Board agent In October 1957, which
was placed In evidence by General Counsel, Pruessing said that on this occasion "I asked
Hartman bow it happened that the mine had started up and he said 'I believe that United
got enough cards among the men.' "
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hartman said "after the 15th we stopped selling" from the stockpile "because of the
cost of loading the coal from the stockpile into the trucks." It required, he said,
"usually one" employee to load from the "stockpile into the trucks." He agreed
that this meant approximately $25 per day for this one employee. Yet on Saturday,
July 20, he ordered the mine reopened, at time-and-a-half pay for some 74 em-
ployees, and double time for the next day, Sunday.
In short, the Trial Examiner finds no merit in the Respondent Employer's claims
as to why the Millstadt mine did not reopen as scheduled. It is concluded and
found that this operation was kept closed in order to lend assistance to United in
its effort to coerce employees to join. Furthermore, and directly coercive in nature,
were the above-quoted statements to employees by both Schroder and Hartman to
the effect that the mine was being kept closed because the employees were repre-
sented by Progressive and not by United.
2. O'Fallon
As noted above, the vacation period for both mines ended on July 8. O'Fallon
was scheduled to reopen on Tuesday, July 9. On the preceding Saturday or Sunday,
June 6 or 7, Mine Manager Joe Cruse telephoned to Stanley Feist, then head of
the Progressive local at this mine, and informed him that it would not reopen on
Tuesday as scheduled. Feist asked why. Cruse said he did not know, but asked
Feist to get word to all the men. On Tuesday Cruse again called Feist and said it
would not open the following day, either. Again Feist asked why and Cruse replied
that "they" did not tell him, but that the mine would not resume until further
notice. On July 10, the Progressive miners held a mass meeting, after which Feist
made an unsuccessful effort to reach H. C. McCollum, in St. Louis, previously
identified as a Peabody vice president. Finally Feist was able to reach the mine
superintendent, Joseph Johnson, and a meeting of management and a mine com-
mittee was arranged for July 17.
On that date a committee of five employees met with McCollum and Johnson.
Although it is undisputed that on that date no notice to this effect was posted at
the mine and that never before in Feist's recollection had the mine been closed
for this reason, McCollum greeted the committee by saying that he was sorry they
had not been notified sooner, but that the "State Mining Inspector at Large had
closed the mine down" because of "bad air." McCollum gave no explanation as to
why, more than a week after the scheduled reopening, he had suddenly got around to
proffer this reason. Feist asked McCollum if the real reason "that the mine was
shut down was because of the demand by the United Mine Workers." Upon this
question McCollum handed Feist a copy of the letter quoted heretofore, in the
section immediately above, and added that "the Peabody Coal Company had 29
mines and it wouldn't run two under Progressive and have the 27 under United
shut down." McCollum went on to say that while he would like to go on operating
under the existing conditions, the Company had no alternative, and that after the
Progressive contract expired on September 30 "there would not be another contract
signed by Peabody with Progressive." 10
O'Fallon, like Millstadt, was not reopened until after Peabody had formally sent
out notification of its cancellation of its contract with Progressive, which will be
described more fully in a later section. O'Fallon was reopened on Monday, July 22.
The foregoing findings lead to the reasonable conclusion, in the opinion of the
Trial Examiner, that the O'Fallon mine, like Millstadt, was kept closed after its
.scheduled reopening date in order to force the employees to join United.
The Respondent Peabody, however, by testimony of McCollum, would have it
-believed that the only reason this mine was "kept closed beginning with July 9 to
July 22" was that the "Department of Mines of the State of Illinois" would not let
him open it until the air was improved. "That was the only reason that mine was
closed," he insisted. To support his claim, the same Respondent called as a witness
Albert H. Morris, an inspector-at-large with the Illinois Department of Mines and
Minerals. Although this witness, who admitted that he was not the State inspector
who regularly covered this mine but had received a special call from a company
3u The findings as to this July 17 meeting rest upon, and -the quotations are from, the
credible testimony of Feist and another committee member, George Schmidt. McCollum's
denials as to statements attributed to him are not credited. His extravagant claim that
one of the Progressive miners suggested to him that their contract be canceled deprives
his entire testimony of credibility, in the opinion of the Trial Examiner. Furthermore,
McCollum's denials are in part convincingly refuted by the mine superintendent, Joseph
Johnson.
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1273
official to come, gave a great deal of technical. obfuscatory, and inconsistent testi-
mony about what he did and did not do and what the air in the mine contained
or did not contain, a few points culled from it are sufficient to cast discredit upon
McCollum's claim.
In the first place, Morris fixed July 8 very definitely as the date he told management
not to start the mine. He declared that he made this statement to Joseph Cruse,
mine manager, among others. Cruse, however, was not called as a witness, and
Feist's testimony, above quoted, stands uncontradicted that Cruse telephoned to him
the previous Saturday or Sunday, July 6 or 7, and told him the mine would not
reopen on July 9, but did not know the reason.
In the second place, it is this inspector's testimony that: (1) He gave orders to
keep the mine closed on July 8 because the "air samples were not up to par to
comply with the Illinois State Coal Mining Act," and (2) that on July 18 he
permitted reopening on the basis of samples taken that same day which also did not
"meet the standards."
Finally, Morris admitted that the "unusual conditions" of bad air were caused by
"flushing the old workings," abandoned. "There was no bad air in the new work-
ings," he said.
In short, the Trial Examiner finds no merit in McCollum's claim as to why the
mine was kept closed.
On the contrary, from the credible evidence, and the preponderance of it, the
Trial Examiner concludes and finds that the O'Fallon mine, like Millstadt, was
closed in order to lend the Employer's substantial support and assistance to
United's organizational campaign. McCollum's statements to the mine committee,
found above, to the effect that the mine would not operate under Progressive, were
coercive and interfered with the rights of the employees under the Act.
3. Conclusions
In addition to rendering substantial assistance to United by failing to reopen its
two mines as found above, the Respondent Peabody plainly discriminated against its
employees, engaged in an effective lockout, and denied such employees their em-
ployment for the purpose of encouraging membership in United. This period of
illegal discrimination at Millstadt was from July 15 to 20, and at O'Fallon from
July 9 to 22. Such discrimination was coercive, and interfered with rights guaranteed
employees by Section 7 of the Act.
E. The refusal to bargain with Progressive
1. Cancellation of the Progressive contract
On July 4 Ray Dupee, president of Progressive's District No. 1, sent the following
letter to Perry, Midwest-Radiant, Midwest Coal Corporation, and Peabody.ll Coun-
sel for the Respondent Employers conceded receipt of the letter.
My attention has been called to an advertisement in the Belleville Daily
Advocate under the date of July 3, 1957, over the signature of Hugh White,
President of District 12, United Mine Workers of America.
In this advertisement is a reprint of a letter from Hugh White to the em-
ployees of the Midwest Radiant Coal Corporation and the St. Ellen Mine of
the Perry Coal Company, which letter states that the Peabody Coal Company
recently purchased. said mines. Said letter further states that the United Mine
Workers of America has served notice on the Peabody Coal Company that
it must comply with the provisions of a certain contract between said Union
and the Peabody Coal Company with regard to the operation of said mines.
Said letter further requests that each employee become a member of the United
Mine Workers of America.
You and each of you are hereby advised that the contract now in existence
between the Progressive Mine Workers of America, District No. 1, and the
Coal Producers Association of Illinois is a valid and binding contract covering
the operation of the Midwest Mine and the St. Ellen Mine, and that we shall
expect from you full compliance with said contract and that you will comply
with the wishes of your employees as to Union affiliation, and any further
contract negotiations.
u Dupee credibly testified that he had not received from Peabody notification of the
merger , but because of rumors he addressed his letter to all companies concerned.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of the four companies ever replied to Dupee's letter, either in writing or
orally. And although Dupee made repeated telephonic efforts to reach some
official at Peabody's office in St. Louis, after giving his name a delay would follow,
and then he would be told that the parties he sought were "not available."
The Trial Examiner finds no substantial or reasonable explanation in the
record as to why some employer official did not reply to the head of the labor
organization with which contractual relationship had up to this point existed for so
many years. Vice President McCollum of Peabody, who admitted receiving the
letter, said he did nothing about it except turn it over to the "legal department."
Attorney Zempel merely said he didn't want to answer "until we could be fully
advised as to which union actually represented the men." Since Peabody was at
the time checking off union dues for practically all employees at both mines and
turning such money over to Progressive Zempel's explanation of uncertainty seems
somewhat short of being candid. Furthermore, it is to be inferred that Zempel
well knew that by contract Progressive was, and must remain, the exclusive repre-
sentative of all these employees for 3 months after the receipt of the letter from
Dupee.
Despite Zempel's voiced "uncertainty," the record discloses that on July 13,
the day after instructing that Millstadt was not to be reopened, General Superin-
tendent Hartman signed the following letter, addressed to the Coal Producers Asso-
ciation of Illinois-the employer group through which Peabody was under contract
with Progressive:
This is to advise that Joe Johnson and I are resigning as members of the
Boards of the Coal Producers Association of Illinois.
Therefore, will you please accept this letter as Mr. Johnson's resignation
from the Executive Board and the Joint State Executive Board and as my
resignation from the Executive Board of the Coal Producers Association of
Illinois.
And again despite the attorney's voiced "uncertainty," it appears that he instructed
and advised R. J. Snider, financial vice president of "Peabody and related com-
panies," to send the following letters out under date of July 19, the date when both
Millstadt and O'Fallon were ordered reopened.
The immediately following letter was addressed to the Coal Producers' Association
of Illinois:
This is to notify you of the withdrawal, effective 12:00 o'clock midnight,
September 30, 1957, of Perry Coal Company from membership in the Coal
Producers' Association of Illinois and that the labor relations of the company
will thereafter no longer be handled through the Association.
This letter shall constitute a revocation, effective immediately, of any
authority the Association may have to negotiate on behalf of the company any
extension of or any changes, additions or amendments to the existing collective
bargaining agreement with the Progressive Mine Workers of America, District
No. 1 which is terminable on or after September 30, 1957.
We trust that you will promptly notify the other member employees of the
Association of this withdrawal. We are sending a copy of this letter to
Progressive Mine Workers of America, District No. 1 and to the local unions
concerned.
To the same Association was sent, by Snider, an identical letter except for the
name of the company-"Midwest-Radiant Corporation" being substituted for
"Perry Coal Company"-and a copy of that letter was also sent to Progressive.
Also on July 19 Snider sent the following letter to Ray Dupee, previously identi-
fied as head of Progressive's District No. 1 and to Kreitner, previously identified as
head of Progressive's Local 167:
We are enclosing herewith a copy of a letter sent by Midwest-Radiant
Corporation to the Coal Producers' Association of Illinois and in which notice
of withdrawal from the Association is given by the company, effective 12:00
o'clock midnight, September 30, 1957.
This is to notify you that by virtue of its withdrawal from the Association,
Midwest-Radiant Corporation will regard the present collective bargaining
agreement dated October 1, 1952, as amended and modified, between the Coal
Producers' Association of Illinois and Progressive Mine Workers of America,
District No. 1, insofar as the said contract may be applicable to its employees
or may be binding upon the company, as being terminated concurrently with
the effective date of its withdrawal from the Association.
Pursuant to the termination provision of the contract dated October 1, 1952,
as amended and modified, between the Coal Producers' Association of Illinois
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1275
and Progressive Mine Workers of America, District No. 1, notice is hereby
given to you by Midwest-Radiant Corporation of its election to terminate said
contract, effective 12:00 o'clock midnight, September 30, 1957, insofar as said
contract may be applicable to its employees or may be binding upon the
company.
Also on the same date, a similar letter, except by references to "Perry Coal
Company" instead of "Midwest-Radiant Corporation," was sent by Snider to Dupee
and Feist, the latter previously identified as head of Progressive's Local 75.
This summary action was taken by the Respondent Peabody at a time when, as
its officials well knew from their payrolls, practically all employees were Progressive
members, it had received but ignored Progressive communications, and as Attorney
Zempel admitted no notification had been received from "any of the employees that
they had revoked their membership in the Progressive."
2. Progressive's request to bargain
On August 4 Dupee sent the following letter to all the Respondent companies:
As you know, the Progressive Mine Workers of America, District No. 1, has
been the duly authorized bargaining agent for many years for the employees
of St. Ellen Mine of Perry Coal Company and Mine No. 1 of the Midwest
Radiant Corporation.
We have received a notice from Perry Coal Company and Midwest Radiant
Corporation, under date of July 19, 1957, in which it was contended that the
contracts which said companies had with District No. 1, Progressive Mine
Workers of America would be terminated on September 30, 1957. It is our
contention that the terms of the contracts have not been complied with and
that they will not terminate on September 30, 1957.
On July 1, 1957, an advertisement appeared in the Belleville Daily Advocate
over the signature of one Hugh White, President of District No. 12, United
Mine Workers of America, which advertisement contained the statement that
the Peabody Coal Company had purchased the Midwest Radiant Corporation's
Mine No. 1 and the St. Ellen Mine from Perry Coal Company. We, of course,
do not know whether this statement is true. In that advertisement it was also
stated that the United Mine Workers had a contract with the Peabody Coal
Company, the terms which provided that all of the Peabody Coal Company's
operations, including the two mines mentioned above, were to be operated by
United Mine Workers of America. If such a contract exists, we do not
believe it could be applicable to the two mines in question, and we believe
that such a contract does not comply with the applicable law and we are
prepared to litigate same, if necessary, at the proper time and place.
Our purpose in addressing this letter to you at the present time is to notify
you that if you are the owner or operator of said mines that we, as the duly
authorized bargaining agent for the employees of the said two mines, namely,
St. Ellen Mine and Mine No. 1, Midwest Radiant Corporation, are ready and
willing to meet with you or either of you to negotiate a new contract con-
cerning terms and conditions of emloyment for the employees at said mines,
but without waiving our contention that said contracts do not expire on Sep-
tember 30, 1957.
We request that the meeting be arranged, as soon as convenient, and suggest
a date between now and August 15, 1957. We will have our bargaining
committee available and will await word from you as to the time and place
of such meeting. If you do not intend to operate these mines or, if, in your
knowledge, some other person, firm or corporation is to operate them or either
of them, we ask that you notify us by return mail the name of such operator.
The Respondent employers made no response to the above request to bargain
,concerning a new contract, either in writing or orally.
As a finding of fact, it is here determined that by failing and refusing to reply to
Progressive's request to negotiate, at a time when the Respondent Employers well
knew that practically all the employees were Progressive members, the Respondents
refused to bargain with Progressive.
3. Peabody's recognition of United
Having ignored all communications from Progressive regarding negotiations for
a new contract, having given the full weight of its economic support, by keeping
the mines closed, to United in its effort to get cards signed, and having through its
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officials effectively informed employees that the mines must go United or remain
closed, the Respondent Peabody promptly entered into a contract with United after
September 30.
It is Attorney Zempel 's testimony that shortly before September 30 and for the
first time since United began its campaign he examined a number of cards sub-
mitted by it and was satisfied that this organization had enough cards signed to con-
stitute a majority. Evidence was placed in the record as to these cards. The Trial Ex-
aminer considers it unnecessary to review such evidence since it is, in his opinion,
wholly irrelevant to the issues . The nature of the coercion visited by ,the employer
and its reasonably inferred result wholly disqualifies any claim that a majority of
the employees , of their own free choice , at any time signed cards for United.
4. The pension funds
In his complaint General Counsel urges that by discontinuing payments into
Progressive's Welfare and Retirement Fund after September 30, 1957, the Respondent
Employers further and illegally refused to bargain and thereby violated Section
8(a)(1), (3),and (5) of the Act.
The answers of the Respondents Perry and Midwest-Radiant admit the discon-
tinuance of such payments; that of Peabody denies the allegation, its denial appar-
ently being based upon the claim that "it has never made any payments into
Progressive's Welfare and Retirement Fund."
The admissions of Perry and Midwest-Radiant effectively admit that such pay-
ments were both made and discontinued, other evidence establishes that Peabody
has controlled both of these corporations since 1956. Whatever the corporate name
under which such payments were made, it is concluded and found that the Respond-
ent Peabody, being the controlling concern, is the responsible employer in this
matter.
Without going into an extensive and detailed description of contractual pro-
vision on this point, it appears that for a number of years a portion of the so-called
"fringe benefits" accorded to employees under Progressive's contract with Perry
and Midwest-Radiant, assumed by Peabody when it took over control in 1956,
was in the form of periodic payments into a Welfare and Retirement Fund. Accord-
ing to Peabody's General Superintendent Hartman, at the period material to this
complaint, and under the contract with Progressive:
We paid on the over-all tonnage it would be 20 cents a ton or 40 cents on one-
half the tonnage.
By terms of the basic Progressive contract, it appears that such contributions
went to a fund under the control of "co-trustees."
Coincident with its discontinuance of contributions to the Progressive fund, the
Respondent Employers began contributing to a similar fund provided for in the
United contract. White's testimony makes it clear that recipients of benefits under
the Progressive fund were not transferred to the United fund, and that he so
informed the employees "sometime during that campaign."
5. Conclusions as to refusal to bargain
The complaint alleges as appropriate units: (1) All employees at the O'Fallon
mine covered by the 1952 contract between Progressive and the Coal Producers'
Association of Illinois; (2) all employees at the Millstadt mine covered by the
same contract; and/or all employees at both mines.
Dupee's letter to all companies of August 4, 1957, establishes that Progressive was
seeking to negotiate a contract for the employees at both mines.
Although counsel for the Respondent Peabody argues almost persuasively in his
brief that General Counsel has not sustained his burden of proving an appropriate
unit, this contention falls short of being convincing. Had the employer entertained
any doubt about the appropriateness of the union already recognized for so many
years under Progressive, it had recourse to Board procedure, but did not avail itself
of that privilege. Furthermore, it is clear that all employees at both mines were
embraced without question under the United-Peabody contract upon expiration of
the Progressive agreement.
The Trial Examiner concludes and finds that all employees at the two mines,
together or separately, and with such exclusions as are required by law, constitute
a unit or units appropriate for the purposes of collective bargaining. The conclusion
rests upon the past history of collective bargaining at both mines, upon the fact
that the Respondents at the hearing offered no evidence as to any other unit, and
upon the fact that the Respondents have continued to recognize , since early in
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1277
October 1957, United as the bargaining representative for all employees in the same
unit or units.
As to the majority question, the evidence is substantial and convincing that at all
material times Progressive has represented a majority of all employees in the afore-
said appropriate unit or units Up to the time of the hearing, so far as evidence
shows, none of these employees has revoked membership in or selection of Pro-
gressive as his bargaining agent. 12
The Trial Examiner concludes and finds that at all material times Progressive has
been and continues to be the exclusive representative of all employees in the afore-
said appropriate unit or units for the purposes of collective bargaining.
The Trial Examiner further concludes and finds that the Respondent Employers
have refused to bargain collectively with Progressive as required in the Act by the
following conduct: (1) Beginning on July 9 at O'Fallon and on July 15 locking out
employees and through responsible officials informing them that these mines would
not operate under Progressive; (2) failing and refusing to reply to Progressive's
specific request to bargain on August 4; (3) ignoring and failing to respond to all of
Progressive's communications; beginning with that dated July 4, and quoted herein,
at a time when their officials were openly coercing employees and assisting United
as described herein; (4) informing Progressive in the letter of July 19, quoted
above, of cancellation of the Progressive contract and simultaneously of the
employers' withdrawal from the Coal Producers' Association of Illinois; (5) ter-
minating on September 30 the Progressive contract; and (6) discontinuing payments
on September 30 into Progressive's Welfare and Retirement Fund.
By thus refusing to bargain with Progressive the Respondent Employers interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
the Act.
F. Summary of unlawful assistance and support
The Trial Examiner concludes and finds that the Respondent Employers gave
substantial assistance and support to United by the following specific conduct,
described in detail above: (1) Discriminatorily locking out employees at both mines
to encourage United membership; (2) threatening employees with continued lockout
to encourage United membership; (3) refusing to bargain with Progressive in order to
encourage membership in United; (4) terminating the collective-bargaining agree-
ment with Progressive in order to encourage membership in United; (5) discon-
tinuing payments to Progressive's Welfare and Retirement Fund in order to encourage
membership in United; and (6) entering into an exclusive bargaining contract with
United at a time when it did not represent an uncoerced majority of their employees
in an appropriate unit or units.
By such assistance and support of United the Respondent Employers interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
the Act.
G. Summary of unlawful discrimination
The Trial Examiner concludes and finds that the Respondent Employers dis-
criminated against their employees at the two mines, in regard to their hire, tenure,
terms, and conditions of employment, for the purpose of encouraging membership
in United by the following specific conduct, described in detail above: (1) Locking
out employees at the two mines for a period in July 1957; (2) discontinuing pay-
ments to Progressive's Welfare and Retirement Fund on September 30, 1957; and
v The following colloquy occurred after Attorney Zempel testified that just before
entering into the contract with United he inspected a number of United application cards :
TRIAL EXAMINER: At or about this time or at any time within the preceding two
or three months had you received any notification from any of the employees that
they had revoked their membership in the Progressive Miners?
The WITNESS : No, sir , I took it that this card would revoke this because it desig-
nates and selects the United Mine Workers as exclusive representative.
TRIAL EXAMINER : It doesn't say anything about revoking membership in any
other organization?
The WITNESS : No, sir, it doesn't.
TRIAL EXAMINER : Did you raise that question with anybody?
The WITNESS : No, sir.
TRIAL EXAMINER : You knew that those miners were members up to September 30th
whose dues were being checked off 2
The WITNESS : Yes, sir.
1.278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) entering into a contract with United on or about October 1, 1957, which in
effect is a closed-shop agreement.
By engaging in the above-noted discriminatory conduct the Respondents interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
the Act.
H. Summary of unlawful conduct by United and its locals
On October 1, 1957, the Respondent United installed charters for Locals 1227
and 1229, United Mine Workers of America-the first covering employees at
O'Fallon, the second employees at Millstadt. It appears that these two locals,
through District 12, are now parties to the Peabody-United contract, entered into
early in October 1957.13
The Trial Examiner concludes and finds that the Respondent Unions caused and
attempted to cause the Respondent Employers to discriminate against employees in
violation of Section 8(a) (3) of the Act by the following specific conduct, described
heretofore: Entering into the above-described agreement with the Respondent Em-
ployers in October 1957.14
The Trial Examiner further concludes and finds that the Respondent Unions
restrained and coerced employees at two mines in the exercise of rights guaranteed
by Section 7 of the Act by the following specific conduct, described above: (1) In-
forming all employees in July 1957 that United was requiring the Respondent
Employers to comply with its contract, and (2) in October 1957 entering into a
collective-bargaining agreement with Peabody covering employees at those two
mines and containing an unlawful union-security clause and thereafter maintaining
and enforcing the said contract under which employees covered thereby have been
required to pay to the Respondent Unions dues, fees, and assessments.15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondent Employers described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce 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 the Respondents have engaged in certain unfair labor practices,.
the Trial Examiner will recommend that they cease and desist therefrom and take
affirmative action necessary to effectuate the policies of the Act.
It has been found that by the effective lockouts in July 1957, the Respondent
Employers discriminated against employees at both mines to encourage membership
in United. It will be recommended that the Respondent Employers make whole these
employees for any loss of pay they suffered as a result of such discrimination
"Counsel for the Respondent Unions conceded at the hearing that "as of on or after
October 1st that the two mines in question began operating under the green book (the
National Agreement), without the necessity for any execution of new documents."
14 General Counsel alleges in the complaint that the Respondent Unions also caused,
Illegal discrimination by (1) requiring the Employers to shut down the two mines, and
(2) requiring discontinuance of payments to the Progressive Welfare and Retirement
Fund. While it might reasonably be inferred that by insisting, in June, that the
Employers comply with the existing United contract, United "caused" extension of the
regular shutdown period and discontinuance of such contributions, such inference- being:
reached by reasoning that by "requiring" compliance with its contract United made such
action by the Employers a necessary means to the demanded end, the Trial Examiner
considers it unnecessary to draw that conclusion. There is no direct evidence, which the
Trial Examiner can locate, that any United official asked or demanded of any Peabody
official that the mines be closed or that contributions be halted.
15 General Counsel urges, as another reason for the illegality of the United-Peabody
contract, the fact that United, at the time of entering into it, had not received from the
Board notice of compliance with Section 9(f), (g), and (h) of the Act. The Trial
Examiner considers it unnecessary to pass upon this point, in view of the fact that the
ultimate conclusion rests upon broader and more substantial grounds : illegal assistance
and the illegal union-security provisions. Nor does it appear necessary to the Trial
Examiner to review here the facts which United adduced to show, in effect, that a
previous General Counsel gave tacit approval to certain language in the master agree-
ment. The fatal continuing provisions have been pointed out in section III, C, above,
PERRY COAL COMPANY, MIDWEST-RADIANT CORPORATION 1279
against them, by payment to each of them of a sum of money equal to that which
he normally would have earned as wages during the period of discrimination
against him, and in a manner consistent with Board policy set out in F. W.
Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440.
It will further be recommended that the Respondent Employers, upon reasonable
request, make available to the Board and its agents all payroll and other records
pertinent to the analysis of the amounts due as backpay.
It has been found that the Respondent Employers also discriminated against
employees at both mines, to encourage membership in United, by depriving them
of certain benefits, through discontinuance of contributions to Progressive's Welfare
and Retirement Fund. It will therefore be recommended that the Respondent
Employers make whole these employees by reimbursing said fund for all contribu-
tions provided for under the Progressive contract and discriminatorily withheld since
October 1, 1957, and by continuing such contributions until such time as the
Respondent Employers and Progressive, under terms of these recommendations,
shall have resumed good-faith bargaining within the meaning of the Act.1e
It has been found that the Respondent Employers have illegally assisted and
supported,the Respondent Unions, and that said Respondent Employers and Unions
have entered into, maintained, and enforced an illegal contract pursuant to which
fees and dues have been checked off by the Respondent Employers and paid over to
Respondent Unions. It will therefore be recommended that the Respondent Em-
ployers and Unions: (1) Cease and desist from giving effect to said contract, entered
into on or about October 1, 1957, or to any extension, renewal, or modification
thereof, or any other contract or agreement between said Respondents which may
now be in force; and (2) jointly and severally reimburse employees at both mines
for any dues, fees, assessments, or other moneys that since October 1, 1957, have
been unlawfully exacted from them as a condition of obtaining or retaining employ-
ment with said Respondent Employers. It will also be recommended that the
Respondent Employers withdraw and withhold all recognition from the Respondent
Unions as the representative of any of its employees at the Millstadt and O'Fallon
mines, for the purposes of dealing with them concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment,
unless and until the said labor organizations shall have demonstrated their exclusive
majority representative status pursuant to a Board-conducted election among said
employees.
It will also be recommended that, upon request, the Respondent Peabody bargain
collectively with Progressive, in good faith and as required by the Act, as the
exclusive representative of its O'Fallon and Millstadt employees in the above-found
appropriate unit or units.
Finally, it will be recommended that the Respondent Employers and Unions cease
and desist from in any other manner restraining or coercing employees in the exer-
cise of the right to self-organization, to form labor organizations, to join or assist
Progressive or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be effected by an
agreement requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Mine Workers of America, its District 12, and its Locals 1227 and 1229,
and Progressive Mine Workers of America, District 1, are labor organizations
within the meaning of Section 2(5) of the Act.
2. By contributing support to United Mine Workers of America, its District 12,
and its Locals 1227 and 1229, the Respondent Employers have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act.
161n his brief General Counsel urges that the Trial Examiner recommend "reinstate-
ment" of the Progressive contract. The Trial Examiner doubts if the case cited by
General Counsel (International Broadcasting Corporation, 99 NLRB 130) may be reason.
ably construed as a governing precedent. As found above, although the Respondent
Employers illegally refused to bargain with Progressive concerning a new contract, the
then existing contract was maintained and, so far -as the record shows, its provisions were
complied with until its own expiration date, September 30, 1957.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of employment and other
terms and conditions of employment of their employees, thereby encouraging mem-
:bership in a labor organization, the Respondent Employers have engaged in and are
-engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. All employees at the O'Fallon mine covered by the 1952 contract between
Progressive and the Coal Producers' Association of Illinois, and all employees at the
Millstadt mine covered by the same contract, and/or all employees at both said
mines, excluding such categories of employees as required by law, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
5. Progressive Mine Workers of America, District 1, at all times since August 4,
1957, has been the exclusive representative of all employees in the aforesaid unit
or units for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
6. By refusing on and after August 4, 1957, to bargain collectively with the afore-
said labor organization as the exclusive bargaining representative of all employees
in the appropriate unit or units, the Respondent Employers have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
7. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent Employers have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
8. By causing and attempting to cause the Respondent Employers to discriminate
against employees within the meaning of Section 8(a) (3) of the Act, the Respondent
Unions have engaged in and are engaging in unfair labor practices within the mean-
ing of Section 8(b) (2) of the Act.
9. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent Unions have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
10. The unfair labor practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Louis Wentzel d/b/a Automotive Parts Company and Immel
Motor Parts Company , and Louis M. Wentzel , Marat Smith,
and Helen Elizabeth McHugh d/b/a California Distributors 1
and Office Employees International Union , Local No. 26,
AFL-CIO, Petitioner . Case No. 20-RC-3913. December 30, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Albert Schneider, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom. and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
1 The name of the Employer appears as amended at the hearing.
125 NLRB No. 124.