Rawalt Coal Co.

National Labor Relations Board - Board Decisions

Nov 14, 1950

92 N.L.R.B. 58 (N.L.R.B. 1950)

In the Matter of RAWALT COAL COMPANY and LOCAL UNION No. 12,;
PROGRESSIVE MINE WOR=RS OF AMERICA, DISTRICT No. 1.
Case No. 13-CA-310.Decided November 14, 1950
DECISION AND ORDER
On August 31, 1950, Trial Examiner David London issued his' In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged unfair labor
practices , and recommended that the allegations of the complaint with
respect thereto be dismissed . Thereafter the Union and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
The Trial Examiner found that the Respondent is engaged in com-
merce within the meaning of the Act . However, since the issuance of
the Intermediate Report in this case , the Board has adopted certain
minimum requirements for the assertion of its jurisdiction . It there-
fore becomes necessary for us 1 first to examine the commerce facts
in order to ascertain whether these minimum requirements have been
met.
The Respondent operates a coal mine, of the type known as a "slope
mine," near Canton, Illinois. During the period from ' September
1, 1948, to August 31, 1949, the Respondent produced approximately
30,000 tons of coal, all of which was either sold at the mine to truckers,
for resale locally, or was sold, and delivered by truck, to the Illinois
Coal and Dock Company in Illinois. Of the approximately 9,000
tons, valued at approximately $35,000, sold to the latter company
during the period from September 1, 1948, to August 31, 1949, approxi-
mately 2,500 tons was resold to the Toledo , Peoria, and Western Rail-
road, approximately 900 tons to Commercial Solvents Corporation,
and the balance was resold to other railroads , to the Central Illinois
'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 [Members Houston , Reynolds,
and Styles].
92 NLRB No. 12.
58
RAWALT COAL COMPANY 59
Light Company of Peoria, Illinois, to other industrial users, and to
domestic consumers. There is no evidence that any of the coal pro-
duced by the Respondent was shipped outside the State,2 nor is there
evidence that the Respondent made any out-of-State purchases.
On these facts we find, in agreement with the Trial Examiner, that
the Respondent's operations affect commerce within the meaning of
the Act. However, as all its coal was sold locally and the value of
its sales to interstate firms over which we would assert jurisdiction was
less than $50,000, we find, in accord with our announced policy,3 that
it would not effectuate the policies of the Act to assert jurisdiction in
this case. We shall, therefore, dismiss the complaint in its entirety.
ORDER
IT IS HEREBY ORDERED that the complaint herein be, and it hereby is,
dismissed.
2 Although it appears that some of the coal produced by the Respondent was shipped from
Canton by rail , the record does not reflect the destination of such shipments.
8 Hollow Tree Lumber Company , 91 NLRB 635.
INTERMEDIATE REPORT
Mr. Robert B. Stark, for the General Counsel.
Messrs. Chiperfiield and Cleiperfiield , by Frederick 0. Mercer and James F.
Scott, of Canton , Ill., for the Respondent.
Mr. R. W. Deffenbaugh, of Springfield, Ill., for the Union.
STATEMENT OF TAE CASE
Upon an amended charge filed May 15, 1950, by Local Union No. 12, Progressive
Mine Workers of America, District No. 1, herein called the Union, the General
Counsel of the National Labor Relations Board, ' by the Regional Director for
the Thirteenth Region (Chicago, Illinois), issued a complaint dated May 22,
1950, against Rawalt Coal Company, hereinafter referred to as Respondent.
The complaint alleged that Respondent had engaged and was engaging in un-
fair labor practices affecting commerce within the meaning of Section 8 (a) (1),
8 (a) (3), 8 ( a) (4), and 8 ( a) (5), and Section 2 (6) and ( 7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of
the complaint, the amended charge, and notice of hearing were duly served
on Respondent.
With respect to the unfair labor practices, the complaint, as amended, alleged
in substance: (1) That on or about May 23, 1949, and at all times thereafter,
Respondent failed and refused to bargain collectively with the Union (a) with
respect to the assignment and distribution of work, and ( b) with respect to
the extension of a collective bargaining agreement; (2) that since on or about
May 23, 1949 , Respondent locked out and refused to reinstate 11 employees named
in the margin 2 for the reason that they joined and assisted the Union and
' The General Counsel and his representative at the hearing are herein referred to as
the General Counsel and the National Labor Relations Board as the Board.
2 The names of these employees , as corrected at the hearing , are as follows : nay Asby,
Ernest Bettison , Lawrence Ferro, Julian Franciskovich , John Hrescic , Elzie hawver, Clyde
Lawyer, Elmer Lawyer, Arnold Riley, John Sleeth, and Thomas Whitney.
60 DECISIONS OF MATIt NAL LABOR R LATIONS BOARD
engaged in conceited activities on its and tlieir own behalf; (3) that dh dr about
January 30, 1956, Respondent refused to reinstate the said 11 emiployees.for the
reason that they refused to cause the withdrawal of charges of unfair labor
practices which they had previously caused the Union to file against Respondent.
By its answer, Respondent denied that it was engaged in commerce within the
meaning of Section 2 (6) grid (7) of the Act or that it was guilty of the unfair
labor practices alleged iii the complaint. The answer affirmatively pleaded
that Respondent had reduced the number of workmen employed iii its mine by
reason of economic necessity; and that the only workmen retained were stock-
holders of Respondent or members of their families.
Pursuant to notice, it hearing was held at Canton, Illinois, on dune 13 and 14,
1950, before David London, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel; Respondent, and the Union
were represented by counsel. Full opportunity to be heard, examine and cross-
examine all witnesses, and to introduce evidence pertaining to the issues was
afforded all parties. Respondent's motion for a dismissal of the complaint made
during the hearing were denied. At the close of the testimony, the General
Counsel and Respondent presented oral argument and both thereafter filed briefs
with the undersigned, which have been duly considered.
Upon the elitire record in the case and from my observation of the witnesses
at the hearing, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Rawalt Coal Company is an Illinois corporation, engaged in mining and selling
coal near Canton, Illinois. During the period September 1, 1948, to August 31,
1949, Respondent produced approximately 30,000 tons of coal and sold approxi-
mately 9,000 tons thereof to the Illinois Coal and Dock Company. Of the amount
so purchased by the latter company, approximately 2,500 tons were sold by it to
i-1ie Toledo; Peoria Mid Western Itailydad, ail interstate comindli carrier. The
idiiaiiidef of the cdal so purchased by the Illiiiois.Coal and Dock bothpahy was
sold tb the Coniniercial Solvefits Cdrjioratidn, whom the Board in November 1948
foiind to be engaged in commerce ivitliiii the meaning of the Act,'. the Centfal
jliihdis Light Company of Peoria, and other industrial and domestic consumers.
I find that Respondent 1s engaged in coniineicd within the meaning of the Act
U. T$E tAB0n ORGANIZATION INVOLVED
Local Union No. 12; Progressive Mine Workers of America; District No. 1,
is a labor organization admitting employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICE
A. Background hod clii'oiiolo`gJ df events
R9 pdiideiit corporation; since about 1923; lias divued and operated tiie small
sldpe iniii6 *itli which we are heie concerned. The mine liar rid railroad trackage
3 80 NLRB 277.
4 Tuiineil M411 Mining Company, 90 NLRB 787 ; Hackathotn & Myerff, 90 NLRB 785 ;
Crow Bar Coal'Company; 48 -NLRB 660;,erifoiced iii 141 F. 2d 317 (C. A. 10)';-Kno4bille
diming Company;.73 NLRB 1321.
RAWALT COAL COMPANY e1
and its coal is hauled by truck to Canton, Illinois, 15 miles distant. Stock owner-
ship in the corporation, prior to the death of Malcolm Baxter and James J.
Baxter, was equally divided between 6 brothers and 1 sister, all members of the
Baxter family, each holding 14 shares of stock. All 6 brothers were actively
engaged in mine operations. Upon the death of Malcolm and James, their shares
descender] to their respective families. The 2 sons of James thereafter worked
in the mine, as did John Walker, the husband of Stella Walker, formerly Stella
Baxter. During all times relevant herein, Neil Baxter, hereinafter referred to
as Neil, was the president of the corporation, and Adam Baxter, hereinafter
referred to as Adam, was its secretary and treasurer, and superintendent of the
mine.
From time to time the Baxters engaged the services of outside miners. In
April 1949, Respondent had in its employ the 11 employees named in footnote 2,
supra, all of whom were members of the Union. These 11 men, together with 8
members of the Baxter family (including John Walker) and none of whom had
ever joined the Union, were then engaged in mining coal on Respondent's property.
At that time, and since 1945, Respondent had a labor bargaining contract with
the Union. The contract current in April 1949 was executed between the Union
and Respondent on July 1, 1948, and expired on June 30, 1949. By the terms of
that contract, Respondent, who was not a member of the Coal Producers Associa-
tion of Illinois, adopted and agreed to be bound by all the terms and conditions
of a contract executed by the Union and the Coal Producers Association pf
Illiiipis on June 30, 1948, hereinafter referred to as the Master Contract. One
of the terms of said Master Contract adopted by Respondent provided as
follows :
DIVISION OF WORK
7. (a) The miners employed at mines in the same locality may at their
option share work with those thrown idle, either by doubling up in working
places or in some other manner mutually ageed, after a mine has been idle
for a period of fifteen days after written notice to the company except
through strike. However, there will be no change of men in working places
more often than every five days of operation. When part of the miners at
any mine or mines are thrown idle as above for a period of five days of
operation, they shall be entitled to share with the balance in the work in
manner provided, unless provided for otherwise.
k * * * * *
(c) The foregoing is designed to secure to the miner the greatest prac-
ticable division of work under present existing conditions, while protecting
the operator from any abuse, and should dispute arise as to the Division
of work hereunder they shall be taken up jointly '-r determination.
Because of a declining market and unstable market conditions in the spring
of 1949, operations at Respondent's mine were reduced, so that during the 2- or
3-week period preceding April 19 the men worked only 2 or 3 days per week, as
distinguished from the normal 5-day week. On April 18, Adam informed Law-
rence Ferro, president of the Union and then employed in the mine, that there-
after there would only be work "a day or so a week," and that only members of
the Baxter family would be so engaged. Being mindful of the portion of the
contract set forth above, Ferro advised Adam that he would call a union meeting
and ascertain what the men "wanted to do as to who was going to -,;pork at the
mine=to see if they wanted to share the work." Such a meeting wo held the
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same evening, attended only by the 11 members of the Union employed at Re-
spondent's mine, and who "voted unanimously to divide up the work-to share
the work." Bettison, the Union's secretary-treasurer, orally notified Adam of
the Union's decision. . No coal was hoisted thereafter until about May 23, 1949.
In the interim, the Baxters were engaged in the mine in so-called "dead work,
such as cleaning up dirt and the main roads and air crosses." On May 23, when
the hoisting of coal was resumed, Ferro and three other union members approached
the slope and asked Neil to come down and talk to them. Neil replied, "You can
go to hell as far as I care." During the same day, Russell Craig, a board member
of the Union, called on Adam who admitted that Respondent had resumed hoisting
coal. Craig informed Adam that the latter "was violating the contract, that he
should give the men a division of the work there was-and divide it equally as
the contract provides." Adam refused and informed Craig that there was hardly
enough work to enable the Baxters to make a living themselves and that they
could not afford to hire outsiders. A similar request on the following day by
Craig and Arthur Gramlich, a union district official, met with the same refusal.
On May 26, Craig and Gramlich brought George Biama, a union vice president,
to the mine and a further conversation was held with Adam. Biama asked Adam
why he didn't.want to divide the work. The latter replied that there wasn't
enough work for both the Barters and outside employees and that the Baxters
"would do the work there was to be done." Notwithstanding the position taken
by Adam, Craig instructed Ferro to have all the men at the mine the next day
"to make one last effort to settle the case" before filing unfair labor practice
charges against Respondent. The 11 union employees reported on the morning
of May 27 and through the union secretary "asked for their jobs back." Adam
again informed them that be "had nothing for them." Craig and Adam went to
Respondent's office where Craig asked Adam to reconsider and determine whether
he "couldn't. at least put a couple of men on." Adam conferred with his brother
Neil and informed Craig that he would put on 2 union members each week to
be followed by 2 other union members in each succeeding week, but that all
8 members of the Baxter family would be steadily employed. Craig reported this
development to the 11 union members who refused the compromise and insisted
upon a "full division" with the 8 Baxters. From that time to the date of the
hearing, Respondent has hired no new employees and all work at the mine was
performed by members of the Baxter family.
A few days before the expiration of the union contract on June 30, 1949, Craig
asked Adam to sign a 30-day extension of the expiring contract, pending nego-
tiations for a renewal of the Master Contract with the Coal Producers Association
of Illinois. Adam declined to enter into any such extension. A further request
was made by Craig for a similar 30-day extension near the end of July, but Adam
replied that he would not sign a contract at any time.' A picket line was estab-
lished by the Union on July 18, 1949, and maintained until September 3, 1949.
The Union filed the original charge herein on July 18, 1949, alleging that Respond-
ent had violated Section 8 (a) (1), (3), and (5) of the Act.
During mid-August 1949 and while the mine was being picketed, Neil told
employee Hrescic that if he "wanted to work that Ebel could," and that the
pickets "could all be working [instead of] sitting on the grass picketing.""
When Hrescic informed Neil that the men would not return until the Union had
a, contract, Neil told the pickets that Respondent would not sign a union contract.
Both Adam and Neil admitted that they refused to sign any agreement after June 30,
1949.
Neil did not deny Hrescic's testimony to this effect.
EAWALT COAL COMPANY 63
Several times thereafter Neil repeated to Hrescic that "he wasn 't going to sign
a contract . He don't want no union."
In November or December 1949, Neil called Bettison and told him that Re-
spondent expected to shear coal , that he wanted him to "run the machine" and
that he could use four or five men.' Bettison replied that he wouldn ' t accept
the employment because the mine was then "non-union ." Neil countered : "That
is the way it will be-it would be an open mine, no union."
In January 1950, Elmer Lawyer, accompanied by his father, Elzie Lawyer,
went to the mine to get his income tax withholding form. The Lawyers en-
gaged in conversation with Neil who told Elmer that if "he and four or five
other union members would get together and have the case [previously filed
with the Board] withdrawn, that he could put [them] back to work." Elmer
replied that the inen "wouldn't do it-wouldn't think of it." During the latter
part of January 1950, Elmer Lawyer again returned to the mine, this time in
company with Arnold Riley, Clyde Sleeth, Clyde Lawyer, and Elzie Lawyer, and
informed Adam that the men were applying for their jobs. Adam asked them
to come to the wash house to carry on the conference and the group was there
joined by Neil . Adam repeated the men ' s request for reemployment to Neil,
Both Baxters stated "their hands were tied, that they couldn 't hire [the men]."
One, or both Baxters, suggested that if some of the union members would go to
the Union ' s main office in Springfield , Illinois , "and have the case withdrawn,"
that the men could then be reemployed . Elmer Lawyer rejected the suggestion
in behalf of the men and informed the Baxters that in any event nothing could
be done about withdrawing the charge because the matter was "in the hands
of Washington , D. C." Neil then suggested that the men "write a letter to
[Senator ] Scott Lucas, that he could help them."'
B. The alleged refusal to bargain
1. Compliance with Section 9 (f), (g), and (h) of the Act
During his closing argument , the General Counsel suggested to me that an
examination of the Board 's administrative records would disclose that the
Union "possibly was not in compliance with Section 9 (f), (g), and (h) of the
Act' . . . as of April 19, 1949.... [but that it] was in compliance as of the
time that the complaint was issued ." Recognizing that this state of the record
might bring the case within the rule. laid down by the Board in the Andrews
case 10 that so long as a union fails to comply with the cited sections there can
be no illegal refusal to bargain, the General Counsel sought to distinguish that
decision from the case at bar. The issue being thus posed , I have caused an
examination to be made of the Board 's records pertaining to the Union's com-
pliance with the sections of the Act above referred to and have been administra-
tively advised that the Union was not in compliance therewith during the relevant
4 Though Neil denied making the latter part of this statement , he admitted telling
Bettison "to stick around a few days-there may be something that might develop-
meaning [thereby , he] might be able to employ him." Bettison ' s version of the conver-
sation as reported in the text is credited.
8 The incidents related in this paragraph are based on the credited testimony of Elmer
Lawyer and Arnold Riley . The parties stipulated that Elzie Lawyer and Joe S'eeth, if
called as witnesses , "would testify substantially as Elmer Lawyer and Arnold Riley."
O Pertaining to the filing of financial statements and non-Communist oaths by officers
of labor organizations.
10 Andrews Company, 87 NLRB 62.
64 D'EC'ISIONS OF NATIONAL, LABOR RELATIONS BOARD
period herein until September 7, 1949. The complaint in this proceeding was
issued on May 22, 1950.
Respondent did not at any time take the position with the Union, before me,
or in its brief, that it refused to bargain with the Union because the latter had
not complied with the filing reduiremeuts of Section 9 (f), (g), and (h) of the
Act. Nevertheless, strict adherence to the Board decision in the Andrews case
would compel me to conclude that such noncompliance constitutes a bar to any
finding that Respondent had illegally refused to bargain with the Union at any
period prior to the time the latter attained compliance with the sections of the
Act under consideration. Nor am I able to agree with the General Counsel
that the instant case can be distinguished from Andrews on the ground that
the latter case concerned itself only with "an original request to bargain" by '
a noncomplying union, whereas here, "the Union's right to bargain was stated
on the contract." Both the rationale and the specific language of the Andrews
decision foreclose any such distinction. The Board there said not merely that
recognition of a noncomplying union could legally be denied, but more broadly
that "Respondent was not legally obligated to bargain with the Union while
it was not in compliance with the provisions of Section 9 (f), (g) , , and (h)."
Were the problem here presented one on which the Board had not previously
ruled, my own interpretation of the Act would lead me to a contrary result and
to give effect, instead, to the rationale and conclusion expressed by the two
dissenting members of the Board in the Andrews case. That conclusion is now
buttressed by the opinion of the United States Court of Appeals for the District
of Columbia, in West Texas Utilities Co., Inc. v. N. L. R. B." And though the
rule of stare decisis is merely a principle of policy and is not inflexible, nor a
mechanical formula requiring "adherence to the latest decision however recent
and questionable," 12 the orderly exercise of the administrative process, and my
status as an arm of the Board, require adherence by mq to the interpretation of
the Act and the policies enunciated in the Board decision until changed by the
Board itself. Under constraint, therefore, I conclude that until compliance with
Section 9 (f), (g), and (h) was achieved on September.7, 1949, there was no
duty on Respondent to bargain with the Union as otherwise required by the Act.
. However, and notwithstanding the ruling just announced, there remains the
possibility that review thereof by the Board might lead it either to agree with
the General Counsel's view that the Andrews case is distinguishable, or, to de-
termine, on renewed consideration, that that case should be overruled.13 In light
of that contingency, I deem it appropriate to make the more detailed and ex-
tensive findings on the alleged illegal refusal to bargain that follow.
2. The appropriate unit ; representation by the Union
Before any consideration can be given to the issue of whether or not an em-
ployer has refused to bargain within the meaning of Section 8 (a) (5) of the
Act, two preliminary questions must first be answered affirmatively: (a) Is
the unit for which bargaining rights are sought an appropriate one for such
11 184 P. 2c1 233 ; see also United Automobile Workers v. Wilson Athletic Goods Mfg. Co.,
D. C. No. Dist. Ill., 26 LRRM 2383; United Steelworkers of America v. Shakespeare Co.,
84 P. Stipp. 267 (D.-C. 1lich.).
1'L Helveriny V. Haliock, 309 U. S. 106.
13 The term of Board Member Gray, who voted with the majority in the three-two decision
in the Andrews case, has expired.
R4WALT COAL COMPANY 05
p>3rpps^; and (b) has the representatiye been designated or selected for purposes
of collective bargaining by a majority of the employees in such unit.
a. The appropriate unit
The appropriateness of the unit and the composition of its membership become
especially pertinent in view of the allegation in the complaint that on or about
May 23, 1949, when the mining of coal was resumed, Respondent refused to
bargain with the Union "with respect to the assignment and distribution of work,"
it apparently being his theory that when work becomes scarce it must be shared
by all members of the unit.
It is the duty of the Board to determine "in each case . . . the unit ap-
propriate for the purposes of collective bargaining." u Such determination, unless
made earlier in a representation proceeding under Section 9 (b) and (c) of
the Act, must be made at the hearing in which a respondent is charged with an
illegal refusal to bargain. In the instant proceeding, the complaint alleged, and
Respondent's answer did not deny, that all of Respondent's "employees, except
clerical employees, watchmen and supervisors as defined" in the Act, constitute
an appropriate unit for collective bargaining within the meaning of Section
9 (b) of the Act. If I were to give literal effect to the language just quoted,
it would follow, in view of Respondent's corporate structure, that all members
of the Baxter family, except Adam and Neil, would be included in the unit.
It is also true that such an all-inclusive unit is the one Respondent specifically
urged both by its answer and the stipulation to which it agreed at the hearing.
Thus, Respondent's answer pleaded that all 8 members of the Baxter family,
specifically designated by name, "are working in said mine, doing such work as
operating mining machines, loading coal, timbering, track laying, shot firing, and,
in fact, they were and are workmen of the same capacity and doing the same kind
and class of work that" the 11 union member employees performed. To further
complicate the matter, through consistent with the state of the, pleadings, the
parties stipulated at the hearing that "all production employees of the company,
excluding the president of the company and the superintendent, but [including]
all other members of the Baxter family, totalling some six members of the Baxter
family," constitute the appropriate unit. However, in its brief filed with me after
the close of the hearing, Respondent urges that all the members of the Baxter
family constitute "owners or management."
Notwithstanding all the foregoing, determination as to the ultimate effect
of admissions and stipulations, even when the latter are entered into by the.
General Counsel as one of the parties thereto, is the prerogative and duty of
the Board, and in the first instance, that of its Trial Examiner herein. In
making that determination, I have given recognition to Respondent's corporate
existence and the separate legal entity it possesses as distinguished from its
stockholders. Likewise, I have not been unmindful of the value to be attributed
to admissions contained in pleadings, and to stipulations between the parties
which simplify the issues and shorten a hearing. Both of these practices, how-
14 Section 9 (a) of the Act: "Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages, hours of employment,
or other conditions of employment."
15 Section 9 (b) of the Act.
92070-51-vol. 92 6
66 D'ECISIONS, OF NATIONAL LABOR RELATIONS BOARD
ever, commendable as they are, have value only if they aid in the proper ad-
ministration of the Act and the furtherance of its purposes. If the effect of
any admission or stipulation is to retard effective administration of the Act,
or to thwart its objectives, or if it is in "conflict with the Board's basic policy." 19
.I would be remiss in my duty if I gave effect thereto.17
While the Act is designed to promote industrial peace, it realistically recog-
nizes the existence of conflicting interests between management and labor.
Unless each of these conflicting interests is barred from infiltrating into the
ranks of the other, the collective bargaining process would become a sham.
Complete independence and freedom from the exercise of competing interests
must be assured to both employer and employees. There is, of course, no problem
for the employer in this respect. He merely closes his door to any employee
who seeks to enter his council chamber. But the Act, and the Board in its
interpretation thereof, recognize that circumstances frequently arise where it
would defeat the purpose of the Act if employees whose interests are more
closely allied with management than with the employees would be permitted
to make their influence felt in the council of employees. Thus, "to assure the
employees the fullest freedom in exercising the rights guaranteed by this Act,"
the Board is made the final arbiter in determining "the unit appropriate for
the purposes of collective bargaining." is
To ensure the independence of counsel and action contemplated by the Act,
Section 2 (3) thereof, specifically excepts "any individual employed by his
parent or spouse" from its otherwise broad definition of "employee." In addi-
tion, the Board has, since the early history of the Act,'' excluded other employees
whose interests, because of close relationship other than parent or spouse, were
deemed to be more in alignment with those of the employer than with those of
the employees 20 Certainly here, where the Baxter employees own approxi-
mately 75 percent of the corporate stock of the employer and have the closest
of family relationship with Adam and Neil who own the remainder of such
stock, it would be a perversion of the rights of the outside employees to permit
the Baxter family, under some circumstances," to completely control the rights
of outside employees, and in all cases to participate in the formulation of de-
mands on the corporate Respondent.
By reason of the foregoing, I find that all production and maintenance em-
ployees of Respondent, but excluding all members of the Baxter family and
John Walker, guards, watchmen, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
b. Representation by the Union
While Section 9 of the Act and the Board's Rules and Regulations provide a
convenient procedure for the selection of the employees' bargaining representa-
18 Twelfth Annual Report, page 18.
17 "The Board may not delegate the selection of the unit-[or its] determination to either
the employer or employees." Marshall Field & Co. v. N. L. It. B., 135 F. 2d 391 (C. A. 7).
18 Section 9 (b) of the Act.
19 Louis Weinberg Associates, Inc., 13 NLRB 66.
20 The E. J. Kelley Company, 90 NLRB 239 ; Punch Press Repair Corporation, 89 NLRB
614; Associated Electronics Enterprises, Inc., 80 NLRB 295. For the Board's specific
ruling that the statutory exception is not exclusive, see Kol-Master Corporation, 77
NLRB 466.
11E. g., if, at the critical time, they should numerically be greater than the outside
employees.
RAWALT COAL COMPANY 67
five and certification by the Board or its Director, that method is not exclusive.22
The Act concerns itself with the majority selection rather than the method
by which such majority is proved. Thus, with respect to whether or not the
Union represents a majority of employees, authorization or membership cards
may be relied upon to prove a Union's claim of majority 23 Nor is there any
reason why an employer should subsequently question the majority selection
of a union as the legal representative of its employees where there is in effect
a contract which expressly recognizes that union as such representative. Here
the testimony was undisputed that at all times relevant, the Union enjoyed a
majority status. Indeed, as the foregoing discussion on the appropriateness
of the unit discloses, the Union in fact represented all of Respondent's employees
in such a unit. I, therefore, find that on and after May 23, 1949, the Union was
the exclusive representative of the employees in the unit above described for
the. purposes of collective bargaining with respect to rates of pay, wages, hours,
and other conditions of employment as provided by Section 9 (a) of the Act.
3. The refusal to bargain in May 1949
On the entire record I find that because of economic conditions Respondent
ceased its mine operations on or about April 19, 1949, and for that reason laid
off the 11 union members. (Indeed, the General Counsel in his brief conceded
that the layoff of the union members on that day was without "discrimination
as between union and non-union employees.") Unless, therefore, there was
a change of circumstances requiring the employment of additional help there-
after, Respondent could not be found guilty of refusing to bargain for the rein-
statement of the 11 union members in May 1949, as alleged in the complaint.
Though Respondent resumed the mining of coal on or about May 23, 1949,
I find there was no change in economic conditions in that month from those
that prevailed on April 19, that justified or required the employment of addi-
tional miners. It has previously been found in connection with the appropri-
ateness of the unit that the Baxters were in fact representative of and a part
of management. That being their status, and there being no showing that the
hiring of additional miners was required on May 23, I conclude and find, in
addition to the conclusions expressed. in III B 1, supra, that there was no
statutory duty to bargain with the Union in May for a sharing of the work
between the equitable owners of the mine and their employees.
The General Counsel, however, further urges that Respondent's failure to
negotiate with the Union in May for a sharing of the work "was in derogation
of the valid existing contract." He refers, of course, to paragraph 7 of the
Master Contract quoted on page 3 supra, which gives the "miners employed at
the mines in the same locality [the option to] share work with those thrown
Idle, either by doubling up in working places or in some other manner mutually
agreed." My analysis of this portion of the contract, however, provides several
barriers which foreclose the construction contended for by the General Counsel.
The Master Contract under which the claim arises clearly defines the "miners"
who are to participate in the work-sharing arrangement and this definition must
apply both to those who will be the beneficiaries of any such arrangement and
to those who will sacrifice part of their work opportunity for the benefit of the
s N. L. R . B v. Remington-Rand, Inc., 94 F. 2d 862'(C. A. 2).
23 For the legion of supporting cases, see the following Annual Reports of the Board :
Fourteenth Annual Report, p. 70; Thirteenth Annual Report, p, 59 Twelfth Annual
Report, p. 33.
6,8 DECISIONS OF +NATIOi`IAL f.ABOR RELATIONS BOARD
men thrown idle. Thus, the preamble of the Duster contract recites that it is
an agreement made "by and between the Progressive Mine Workers • of America,
District 1, and on behalf of each employee ntiey ber thereof, the party of the
first part, hereinafter referred to as 'miners'."" Applying the definition agreed
upon by the parties themselves, I construe Section 7 of the contract to mean that
all sharing of work shall be only between members of the Union. This con-
struction is fortified by another stipulation found on page 3 of the printed copy
of the contract and which reads as follows : "The parties hereto further
mutually agree that the terms and conditions of this contract shall he binding
upon all those represented by the parties' signatory hereto, and upon tponeother."
Although it may be suggested that the definition is intended for,the or„ auization
known as the Progressive Mine Workers of Americas, District 1, that suggestion
is dispelled when applied to the section of the contract under consideration.
Thus, when that section speaks of "miners employed at mines" it could, under
the contract definition, mean only the members of the Union, and not the organi-
zation, for certainly the organization was never "employed at mines." Accord-
ingly, I find that there was no obligation under the contract on the part of the
nonunion members to share work with union members.' Furthermore, the
contract gives t1le option to share work to "the miners [still] employed" and
not to those thrown idle. Nor indeed is there any obligation under the con-
tract on the part of the "operators" (Respondent) to do anything other than to
merely accept whatever voluntary work-sharing arrangements are made between
union members in the same locality still employed and union members thrown
idle.
I therefore find, aside from Respondent's lack of duty to bargain with the
Union by reason of the rule announced in the Andrews case, supra, that Respond-
ent violated neither the Act 26 nor the contract when it refused to bargain with
the Union in May 1949, relative to a sharing of work by union members with
members of the Baxter family?'
21 The above definition, as well as all other provisions and conditions of the master
contract were adopted by the Union in its contract with Respondent "for and on behalf
of all members of the Union employed at [Respondent 's mine]."
26 The same construction must be placed upon the last sentence of Section 7 (a) of the
contract dealing with layoffs of 5 days for a portion of the "miners" only.
26 Even if it were found that there was a duty on the part of Respondent to bargain in
May, the evidence conclusively establishes that Respondent entered into performance of
that duty when it offered to employ two of the union members for a period of a week at a
time. The Union categorically rejected this offer and remained adamant in its position
that the work should be shared "equally" between all the Baxters and all the union
members. Section 8 (d) of the Act "does not compel either party to agree to a proposal
or require the making of a concession."
27 By reason of the foregoing, conclusions, I have put hside and refrain from discussing.
at length the serious doubts I entertain as to whether the Board should, in any event,
recognize and aid in the enforcements of the "members-only" contract upon which the
General Counsel relies. Briefly, to me it appears that such contracts are in derogation
of the underlying purposes of the Act and the fundamental duty imposed thereby on the
employees' bargaining representatives to be "the exclusive representatives of all the
employees." Section 9 (a) of the Act ; The Wallace Corporation V. N. L. R. B., 323 U. S.
248, 275. It would therefore seem that the Board should refuse to recognize, and certainly
withhold the use of its facilities in the enforcement of a contract made for the benefit of
only a part of the employees. In a representation case, Southwestern Public Service
Company, 58 NLRB 926, the Board said : "A contract for members only is not the kind
of collective bargaining contract envisioned by or protected by the Act," [Ennpliasis
supplied.] ; see also Kansas Power & Light Company, 64 NLRB 915. The dangers inherent
in sucli a 'practlce need not here be detailed.
Similarly, I have refrained froth-considering the further doubtful question of whether
the sanctions imposed by the Act may be invoked to "police" the performance of any
RAWALT COAL COMPANY 69
4. The refusal to baigalh for a renewal of the expiring contract
The evidence is undisputed, Indeed, Respondent admitted, that It has refused
since the latter part of June 1949, to negotiate a labor bargaining contract for
its employees with the Union for the period commencing July 1, 1949. Nor was
this denial predicated on Respondent's refusal to recognize the Union as the
dilly designated bargaining agent of its employees. Adam's only answer to the
request of Craig and Bettison that an extension of the contract be signed was
that he "couldn't see how [he] could sign it." Assuming, in the light of the
testimony of both Adam and Neil that mine operations were unprofitable and
that Adam's answer may be interpreted as an indication that the wage and
benefit provisions of the contract made it economically inadvisable to continue
the terms of the expiring contract, that circumstance, in the light of Respondent's
announced need of miners 6 weeks thereafter, does not minimize and certainly
does not abolish the duty imposed by the Act to enter into good faith negotiations
for a renewal or revised contract.
On the entire record I am convinced that Respondent's refusal to negotiate
was in fact prompted by its desire to completely ignore the Union on and after
June 30, and its determination to deal individually with its employees, rather
than with their duly designated representative. That such was its purpose was
further specifically demonstrated by Neil's statement to Hrescic in August 1949
that he wouldn't sign a contract with the Union-wanted "no union," and by
his statement to Bettison in the following November or December that he could
use the services of four or five men but that the mine would only "be an open
mine, No union." The Union, However, not being in compliance with Section
9 (f), (g), and (h) of the Act until September 7, 1949, and no demand to bar-
gain having been made after that date, I am constrained, by reason of the views
expressed in Section III B 1, supra, to find and conclude that Respondent did not
violate Section 8 (a) (5) of the Act "with respect to the extension of a col-
lective bargaining agreement" as alleged in the complaint.
0. The discriminatory lockout 2'
The amended complaint alleges that on or about May 23, 1949, and continuously
thereafter, Respondent locked out and refused to reinstate or reemploy the 11
employees named in footnote 2, supra, for the reason that they, and each of them,
joined and assisted the Union and engaged in concerted activities on its and their
own behalf.
bargaining contract and especially that portion thereof which imposes no obligations on
the employer. F. S. Blanc Shoe bompdmy, Inc., 13 NLRB 92. In Carroll's Transfer Com-
palty, 56 NLRB 935, 939, the Board announced that it would "not embark upon a course
of policing and enforcing trade agreements." In Consolidated Aircraft Corporation, 47
NLRB 694, 706, the Board was of the opinion "that it will not effectuate the statutory
po1licy of 'encouraging the practice and 'procedure of collective bargal'nin ' for the Board
to assume the role of policing collective contracts between employers and labor orpdniza-
tions by attempting to decide whether disputes as to the meaning and administration of
ouch contracts constitute unfair labor prdetices under the Act."
The Union's noncompliance is relevant only to the portions of the case dealing with
the alleged refusal to bargain prior to the time of compliance. It has no bearing on the
dlscrlminatidti prdcticed by Respbndeni against the employers as alleged in the complaint.
"Enipltiyees Ad hdo.'e engaged in union acti+ity in behalf of a noncomplying union are
still protected by the Act." Andrews Company, supra, footnote 3; §ee aiso ,du us1U
Chemical Company, 83 NLRB 39;
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has previously been found that the layoff of the men in question on April
19 was occasioned by economic reasons and was admittedly nondiscriminatory."
It has further been found that there was no change in economic conditions in
the following month which required the employment of others than members
of the Baxter family. Accordingly, I find that Respondent did not during the
month of May discriminatorily lock out any members of the Union.
While Respondent's operations in early 1949 were apparently not too profitable,
the evidence is undisputed that commencing in August of that year, due in part
to the United Mine Workers 3-day week and strike, market conditions improved
to the extent that Respondent decided to employ additional miners and thereby
increase its output of coal. Thus, it was undenied that Neil, Respondent's
president, informed the pickets at that time, in effect, that if the men would
abandon the Union that they "could all be working [instead of sitting] on the
grass." In November or December 1949, Neil likewise told Bettison that if Re-
spondent were permitted to operate "an open mine" that he could use four or
five additional men. That work was also available in January 1950 was demon-
strated by the offer made during that month by both Neil and Adam to the
three Lawyers, Riley, and Sleeth, that they could be put back to work if they
would arrange to have the unfair labor practice charge previously filed against
Respondent dismissed. Accordingly, I find that on and after mid-August 1949,
Respondent discriminatorily locked out its employees and refused them re-
instatement because of their union membership and activities. By such conduct
Respondent violated Section 8 (a) (1) and (3) of the Act.
D. The violation of Section 8 (a) (4) of the Act
Section 8 (a) (4) of the Act makes it an unfair labor practice for an employer
to "discriminate against an employee because he has filed charges . . . under
this Act." It having previously been found on credited testimony that in January
1950, both Neil and Adam told the three Lawyers, Riley, and Sleeth that they
would be reemployed if they would arrange to "have the case withdrawn."' I
further find and conclude that by such conduct Respondent violated Section
8 (a) (1) and (4) of the Act 30 While, in fact, the charge was filed by the Union,
the gravamen of Respondent's conduct and the intent and effect of what it
illegally sought to accomplish by inducing its employees to seek. the withdrawal
of the proceeding is the same as if the employees themselves had filed the
charges "
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in Section III, above, occurring in connection
with Respondent's operation described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
29 An audit of Respondent's books disclosed that during all of 1949 it paid as salaries
and wages to all of its employees, including the 8 members of the Baxter family and the
11 union members employed to April 18, 1949, the sum of only $44,232.42 and that the
corporation was left with an operating profit of $6,917.48. Notwithstanding this small
profit, the corporation's capital of $9,800 was on December 31, 1949, still impaired to
the extent of $6,092.22.
°° John H. Raclin Peanut Co., Incorporated, 84 NLRB 384.
"Burnside Steel Foundry Company, 69 NLRB 128; Briggs Manufacturing Company,
75 NLRB 569.
RAWALT COAL COMPANY 71.
V. THE REMEDY ys
Having found that Respondent has and is engaged in unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
Having found that Respondent discriminatorily locked out Ray Ashy, Ernest
Bettison, Lawrence Ferro, Julian Franciskovich, John Hrescic, Elzie Lawyer,
Clyde Lawyer, Elmer Lawyer, Arnold Riley, John Sleeth, and Thomas Whitney,
it will be recommended that Respondent offer each of said employees, as soon
as work becomes available for employees other than members of the Baxter
family or John Walker, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other
rights and privileges. It will be further recommended that if such additional
employment is not presently available to all of said outside employees afore-
mentioned, the available positions to be distributed among all employees in the
appropriate unit without discrimination against any employee because of his
union membership or activity, following such a system of seniority or other
nondiscriminatory practice and to such an extent as has heretofore been applied
in the conduct of Respondent's business. As to those not given immediate em-
ployment, it is recommended that they be placed upon a preferential hiring list
with priority determined as outlined in the preceding sentence. In order to
make said reinstatement effective it is further recommended that Respondent
dismiss, if necessary, all persons, other than members of the Baxterfamily and
John Walker, now employed in the same or similar positions who were hired
or rehired after the Respondent's discrimination.
It will be further recommended that Respondent make each of the above-
named employees whole for losses incurred because of Respondent's discrimi-
nation . The record made in this proceeding not disclosing the exact extent to
which Respondent would have rehired any of the above employees except for
the discrimination practiced, or the order in which they should have been rehired,,
no recommendations will be made herein as to the individuals to be made whole
as above mentioned , or the amount of loss suffered by the individual employees
involved. These factors are to be taken into consideration when compliance
with the recommended order herein is undertaken. Loss of pay for each
employee shall be computed on the basis of each separate calendar quarter
or portion thereof during the period from Respondent's discriminatory action
to the date of a proper offer of reinstatement ; the quarterly periods, hereinafter
called "quarters," shall begin with the first day of January, April, July, and
October ; loss of pay shall be determined by deducting from a sum equal to
that which each employee would normally have earned for each quarter or
portion thereof, his net earnings ,92 if any, in other employment during that
period ; earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter. It is also recommended that Respondent be,
ordered to make available to the Board, upon request, payroll and other records
to facilitate the checking of the amount of back pay clue 33
It is further recommended that the Board expressly reserve the right to
modify the back-pay and reinstatement provisions if made necessary by a change
32 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for Respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere, See Crossett
Lumber Company, 8 NLRB 440.
'I F. W. Woolworth Company, 90 NLRB 2890.
T2 DECISIONS OF NATI('NAL LABOR RELATIONS BOARD
%
of conditionsC'in the future, and to iiiake such supplements thereto as may
hereafter become necessary in order to define or clarify their application to a
specific set of circumstances not now apparent.34
Because Respondent discriminatorily locked out and refused reemployment to
its employees and because its acts of interference, restraint, coercion, and
Intimidation go to the very heart of the Act and indicate a purpose to defeat
self-organization of its employees, I am persuaded that the unfair labor practices
committed are related to other unfair labor practices proscribed by the Act
.and that the danger of their commission in the, future is to be anticipated
from Respondent's conduct in the past. Accordingly, in order to make effective
the interpendent guarantees of Section 7 and thus effectuate the policies of the
Act, it will be recommended that Respondent cease and desist from in any
manner infringing upon the rights of employees guaranteed by the Act.
On the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCL6SIONS OF LA*
1. Local Union No. 12, Progressive Mine Workers of America, Dhistrict No. 1,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Respondent's mine, exclud-
ing iiiembers of the Baxter family and John Walker, guards, watchmen, and
supervisors as'defined in the Act; constitute, and since May 23, 1949, have coh-
stituted a unit appropriate. for the purposes of collective bargaining within. the
meaning of Section 9 (b) of the Act.
3. Local Union No. 12, Progressive Mine Workers of America, District No. 1,
was on May 23; 1949, and at all times thereafter ha's been, the exclusive ibpre-
Sentative of all the employees iii the above-mentioned appropriate unit for
the purposes of collective bargaining within the meaning of Section 9 (aj
of the Act.
4. Bq discriminating against its employees in regard to their hire and tenure
Of employment, thereby discouraging membership in Local Union No. 12, Pro-
gressive Mine Workers of America, District No. 1, Respondent has engaged iri;
and is engaging in unfair labor practices within the meaning of Section 8 (a$
(1) and (3) of the Act.
By discriminating against its employees because tliei caused the above
named labor organization to file charges against it under the Act, Respondent
lid engaged and is engaging in unfair labor practices within the ineariing of
Section 8 (a) (1) and (4) of the Act.
6. The aforesaid unfair labor 'practices-are Lunfd.alabor, practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
'T. Respondent has not violated Section $ ta) (5) of the Act by ieflisiiig to
bargain with the afore-mentioned labor organization as alleged in the i:omplaiht.
[Recommended Order omitted from publication in this bbliime.j
34 Bermite Powder Company, 66 NLRB 678.