Sewanee Coal Operators' Association, Inc.

National Labor Relations Board - Board Decisions

May 17, 1965

152 N.L.R.B. 663 (N.L.R.B. 1965)

SEWANEE COAL OPERATORS' ASSOCIATION, INC. 663
Employees may communicate with the Board' s Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone
No. Baltimore, 1-7000, if they have any questions concerning this
notice or compliance with its provisions.
Sewanee Coal Operators ' Association , Inc. and United Mine Work-
ers of America , Petitioner
Grundy Mining Company and Local No. 139, Southern Labor
Union, Petitioner
M. A. Payne, Inc. and Local No. 139, Southern Labor Union,
Petitioner
Stephenson Bros. Coal Co., Inc. and Local No . 139, Southern Labor
Union, Petitioner. Cases Nos. 10-RC-54197,10-RC-5593,10-RC-
5604, and 10-RC-5605. May 17,1965
DECISION AND DIRECTION
Pursuant to the Board's Supplemental Decision and Order dated
April 28, 1964,1 and Order dated June 11, 1964,2 Trial Examiner Fan-
nie Boyls issued her attached Report on Challenged Ballots and Events
Affecting Composition of Unit, recommending that the Board certify
the United Mine Workers of America as the collective-bargaining rep-
resentative of all production and maintenance employees of coal min-
ing operators who were formerly members of Sewanee Coal Operators
Association, including those not now operating but who resume oper-
ating old mines either before or after the conclusion of the strike, and
including also those individuals who had sole or controlling interest
in a corporation which was a member of Sewanee Coal Operators
Association who form another corporation and operate a new or differ-
ent mine in the geographic area here involved. Thereafter, Grundy
Mining Company and Southern Labor Union filed exceptions to the
report and supporting briefs. The Petitioner filed a brief in support
of the Trial Examiner's report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
1146 NLRB 1145. On October 10, 1963, an election was held among the employees
of Sewanee Coal Operators' Association At the conclusion of the election, a tally of
ballots showed that 108 votes were cast for the Petitioner, 50 for the Southern Labor
Union, and 421 ballots were challenged . The Board's Decision directed that a hearing
be held to resolve the issue raised by the challenged ballots.
2In this Order, the Board broadened its order to permit the introduction of evidence
of events since the election which might affect the propriety of the unit.
152 NLRB No. 71.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the report, the
exceptions, the briefs, and the entire record in this case, and hereby
adopts the finclings,3 conclusions, and recommendations of the Trial
Examiner except as modified herein.4
[The Board directed that the Regional Director for Region 10 shall,
within 10 days from the date of this Direction, open and count the
challenged ballots and serve upon the parties a revised tally of ballots
and an appropriate certificate.]
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Direction.
3In section II of the report the Trial Examiner misstates the stipulation of the parties.
It is hereby corrected to read "That of all the eligible voters who voted an the election
a ma)ority of those who actually voted voted for the 'United Mine Workers "
* We interpret the situation of the parties as in effect withdrawing the challenges to
the ballots. In the absence of exceptions and on the basis of the entire record herein,
we find that all employees whose ballots were challenged are eligible to vote, and in the
circumstances of this case, we believe that it would be best effectuate the purposes of the
Act if these ballots are now opened and counted before issuing any certificate Accord-
ingly, we direct that the Regional Director open and count the challenged ballots, and
prepare and serve upon the parties a revised tally of ballots and the appropriate certificate.
TRIAL EXAMINER'S REPORT ON CHALLENGED BALLOTS
AND EVENTS AFFECTING COMPOSITION OF UNIT
On April 28, 1964, the Board issued an order directing that a hearing be held
before a Trial Examiner to resolve the issues raised by 421 challenged ballots, and
that said Trial Examiner issue a report containing findings of fact and recommen-
dations to the Board relative to the disposition of those issues. On June 11, 1964,
the Board issued a further order broadening the scope of the hearing before the
Trial Examiner to include an inquiry into alleged occurrences after the election of
October 15, 1963, which might be relevant to the composition, or the continued
existence, of the unit found appropriate.
Pursuant to these orders, a hearing was held before Trial Examiner Fannie Boyls
at Chattanooga, Tennessee, on June 16 and 17, 1964 Thereafter, briefs were filed
by counsel for the United Mine Workers of America (herein called the UMW), by
counsel for Grundy Mining Company (herein called Grundy), and by counsel for
Sewanee Coal Operators' Association, Inc. (herein called Sewanee), M. A. Payne,
Inc. (herein called Payne), and Stephenson Bros. Coal Co., Inc. (herein called Ste-
phenson). Each brief has been carefully considered.
Upon the entire record in this proceeding, and from my observation of the wit-
nesses in the hearing before me, I hereby make the following:
FINDINGS OF FACT
1. PRIOR STEPS IN THIS PROCEEDING
Although an attempt will be made to avoid any unnecessary repetition of prior
contentions of the parties and findings of the Regional Director and Board in this
proceeding, a brief recitation of prior steps and findings which may be helpful to an
understanding of the issues will be set forth below.
1. In September 1962, approximately 33 coal mining operators in the southeast
at least in part, of bargaining collectively as a multiemployer group. Between Septem-
ber 1962 and January 1963, Sewanee engaged in collective bargaining with the UMW.
Tennessee area formed Sewanee Coal Operators' Association, Inc., for the purpose,
2. On December 26, 1962, the UMW called a strike, as a result of which the
mines of all the operator members of Sewanee were shut down. Grundy resumed
operations in May 1963.
3. On February 25, 1963, the UMW filed a representation petition with the Board,
seeking an election in the employerwide bargaining unit composed of the employees
of the members of Sewanee.
SEWANEE COAL OPERATORS' ASSOCIATION, INC. 665
4. On May 23 and June 6, 1963, the Southern Labor Union (herein called SLU)
filed representation petitions with the Board, seeking an election in single-employer
units consisting of the employees of Grundy, Payne, and Stephenson.
5. Following a hearing on the consolidated cases, the Board on September 20,
1963, issued its Decision and Direction of Election, finding a multiemployer bar-
gaining unit consisting of the employees of members of Sewanee appropriate, and
directing an election in that unit.
6. On October 15, 1963, the election was held. The tally of ballots showed that
579 of the 660 voters cast ballots, of which 108 were for the UMW, 50 were for
SLU, none was against the participating labor organizations, and 421 were chal-
lenged. There -vere, however, only 280 employees listed on the eligibility list fur-
nished by Sewariee and of these, 199 cast ballots. With respect to Grundy, 108 of
its 155 employees listed on the eligibility list voted.
7. On October 21, 1963, Grundy and SLU filed objections to the election
8. On December 17, 1963, the Regional Director issued his report on objections
and challenged ballots, recommending that certain portions of the objections relat-
ing to alleged preelection violence be sustained, and that the remainder be over-
ruled; that a hearing be held before a Trial Examiner to resolve the issues raised by
the challenges; and that the election be set aside and a new one directed subsequent
to the hearing.
9 On December 23, 1963, Sewanee filed a petition requesting the Board to amend
its Decision of September 20, 1963, and specifically spell out the names of the coal
companies in business whose employees were entitled to vote as members of Sewanee.
UMW filed a response thereto.
10. On January 9, 1964, the UMW filed exceptions to the Regional Director's
report and a supplemental brief.
11. On April 28, 1964, the Board issued its Supplemental Decision and Order,
overruling the objections to the election in their entirety and directing that a hearing
be held before a Trial Examiner of the Board to resolve the issues raised by the 421
ballots challenged.
12. On May 11, 1964, Grundy filed a petition for reconsideration and a motion
to reopen the record. It requested that the Board set aside its April 28, 1964,
Decision and affirm the findings and recommendations of the Regional Director in
his report on the objections and challenges, or that the Board reopen the original
record to receive evidence of occurrences since the hearing which, it alleged, sub-
stantially affects the propriety of the unit. Grundy further requested that if the
Board denied both its petition and motion, that the Board determine the bargaining
agent of its employees independently of all other employees. On May 18, 1964,
the UMW filed a response in opposition to Grundy's petition and motion.
13. On June 11, 1964, the Board issued its Order referred to in the opening para-
graph of this report, denying the petition for reconsideration and motion to reopen,
including the alternative request, but broadening the scope of the reopened hearing
to include not only evidence relating to the challenged ballots but also evidence of
events occurring after the election, which may be relevant to changes in the com-
position of the unit or the continuing existence thereof.
It. THE CHALLENGED BALLOTS
In seeking to dispose of the issues raised by the 421 challenged ballots, the parties
stipulated at the hearing that a majority of the eligible voters as of the date of the
election voted for the UMW. They further stipulated that a substantial majority of
the 379 voters challenged by the Regional Director voted for the UMW and that a
substantial majority of the 42 voters challenged by the UMW voted for the SLU.
On the basis of this stipulation and the tally of ballots, it is clear that UMW
would be entitled to certification as the bargaining representative in the multi-
employer bargaining unit found appropriate by the Board, unless the record shows
that said unit is no longer in existence or that the composition of the unit has so
changed as to make it no longer appropriate.
III. BACKGROUND: COMPOSITION OF THE UNIT
In its Decision and Direction of Election, dated September 20, 1963, the Board
found appropriate a multiemployer bargaining unit consisting of production and
maintenance employees of employer members of Sewanee. The representation peti-
tion filed by the UMW has attached to it a list of 33 mine operators which, it is
alleged , were members of Sewanee. A large majority of the operators listed were
mining coal on property of Tennessee Consolidated Coal Company (herein called
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consolidated), or of Tennessee Products and Chemical Corporation (herein called
Products), pursuant to leases or contracts with one of those two companies. The
few remaining operators mined coal on the property of other owners or on their
own property. Consolidated and Products do not operate any mines themselves.
Following the UMW strike in December 1962, all the mine operator members of
Sewanee ceased operating, but Grundy resumed operations in May 1963. The names
of only 12 members of Sewanee appear on the employee voter eligibility list sub-
mitted by Sewanee. Sewanee, in its petition to the Board on December 23, 1963,
contended that these 12 were the only members of Sewanee who remained, or
intended to remain, in business and that some 18 other members of Sewanee were
no longer in business. Sewanee and Grundy now contend that further changes in
the unit found appropriate by the Board have occurred which have destroyed the
very existence of that unit.
IV. CONTRACT AND AGREEMENT OF SUBLEASE BETWEEN PRODUCTS AND COLLINS
At the time of the original hearing in this proceeding, Products owned or had
leases covering about half the coal producing lands in the southeast Tennessee area
here involved. At the time of the formation of Sewanee, of which Products was a
member, Products had subleased its mining properties to or had mining contracts
with numerous small mining operators, many of whom were likewise members of
Sewanee.
On February 20, 1964, Products entered into a contract and agreement of sub-
lease with Stamper Collins and his wife, who were not members of Sewanee. Under
this contract, Products subleased to the Collinses all its coal mining property in the
area here involved, subject to the rights, if any, of other operators having subleases
or contractual mining rights from Products, and agreed to give notices of cancella-
tion of such subleases or contracts relating to the mining and production of coal,
where such contracts or leases could legally be canceled. Subsequent to Febru-
ary 20, 1964, in late April or early May, Stamper Collins entered into a collective-
bargaining agreement with UMW, covering one or more mines situated on property
he had leased from Products. The record does not show what employees were cov-
ered by the agreement.
Pursuant to the provisions of its contract with Collins, Products, on April 10,
1964, sent letters to 25 operators who had formerly operated coal mines on Prod-
ucts' property, canceling as of May 10, 1964, the rights of those operators to con-
tinue mining on that property. At least 9 of these 25 were members of Sewanee.
The cancellation letters concluded with the statement: "If you desire to continue
mining operations, we suggest that you contact Mr. Stamper Collins . to whom
we have subleased our mining properties." None of the recipients of these can-
cellation letters, however, has made any agreement with Collins in regard to the
resumption or acquisition of coal mining operations.
The nine members of Sewanee who received these cancellation letters are listed
below:
Basham Coal Company
James M. Campbell, d/b/a Coal Creek Coal Company
Cordell Coal Company, operated by C. C. Cordell
Kelley Creek Coal Company, operated by Jerry A. McGowan
J. H. Graham, d/b/a Ninth West Coal Company
Stephenson Bros. Coal Co., Inc., operated by John Stephenson
Tracy City Coal Company
David Ray Sampson, d/b/a Whitwell Mountain Coal Company, Inc.
O. L. Ellis Coal Company, Inc., operated by O. L. Ellis
Collins, after signing an agreement with UMW, talked to several of these operators,
James M. Campbell, Joseph H. Graham, and John Stephenson, about the possibility
of operating under what they described as "sweetheart" contract arrangements with
the UMW, but all declined to accept any such arrangements. One of the operators,
Campbell, is now running a filling station in Tracy City and testified that he never
intends to operate a mine again. Another, John Stephenson, bought a farm in April
1963, and testified that he is permanently out of business as a mine operator.
In addition to the operators whose mining contracts were canceled by Products,
there are other operators holding subleases from Products which were not subject to
cancellation, and others who had no contracts but were mining at the sufferance of
Products on its property.
SEWANEE COAL OPERATORS' ASSOCIATION, INC. 667
Cates Coal Company was one of those mining on Products' property at its suf-
ferance . Cates has not operated since the strike started and, in view of Products'
contract with Collins, it would appear that it has no right to resume mining opera-
tions on the property now controlled by Collins.
Easy Coal Company, a corporation operated by Max Condra, has a valid lease
from Products and is still in existence as a legal entity. Condra testified, however,
that his generator has been destroyed, that his wire has been stolen, that he has tried
unsuccessfully thus far to dispose of the property, and that he has no intention of
operating the mine again. Since April 12, 1963, Condra has been working as gen-
eral mine foreman for Stamper Collins and, in addition, engaging in the insurance
business.
Marshall Meeks Coal Company is owned by Marshall Meeks, Jr. He holds a
lease obtained from Products but the latter assigned its interest in the lease to
Stamper Collins and so notified Meeks on April 10, 1964. Meeks' mine equipment
has been stolen, the mine is filled with water, and rock has fallen into it. Meeks
discussed with Collins the possibility of operating the mine again but rejected a pro-
posed plan by which he could operate with Collins under an arrangement with UMW.
During the past year, Meeks has been hauling coal for Consolidated or for Grundy.
He is now starting up a new mine on Consolidated property and has two employees.
Leon Nunley Coal Company was operated by Leon Nunley. Like Meeks, he
held a lease from Products and was informed by Products that it had subleased its
mining properties to Collins. Nunley testified that the generator in his mine has
been torn up, that equipment has been stolen, and that he is financially unable to
resume mining operations. He is now trucking coal for his brother.
Virgil Thomas, d/b/a Virgil Thomas Coal Company, also known as Thomas Coal
Company, operated a mine on Whipple Mountain under a lease from Products prior
to the strike, and is one of those whose lease was not subject to cancellation. Thomas
is now operating a mine on Pilot Mountain between Lake City and Oliver Springs.
The old mine is not being operated and a sign near the mine indicates that its equip-
ment is for sale.
V. MINING OPERATIONS ON PROPERTY CONTROLLED BY CONSOLIDATED
Consolidated controls by lease approximately half the coal mines in the area here
involved It has not directly operated a mine since March 1960, but it is the owner
of subsidiary corporations, including Grundy, which are operating companies. Con-
solidated sells coal mined by these companies.
Grundy has the same president and the same vice president and secretary as its
parent corporation, Consolidated. Grundy is the only member of Sewanee which
has operated continuously since May 1963. It is by far the largest of the operators.
R & S Coal Company, Inc., was at the time of the strike being operated by Harls
McHone and three other stockholders in that company under a lease from Consoli-
dated. The mine being then on retreat, the stockholders closed it down and sur-
rendered the charter of the corporation. McHone, thereafter, on December 16,
1963, organized another corporation, Hemlock Coal Company, of which he is the
sole stockholder and has since then been operating a mine formerly operated by
Grundy. All the coal he produces is sold to Grundy.
Howard Higgins Coal Company, Inc., was operated by Howard Higgins. In 1962,
he was operating a mine under an oral lease from Consolidated. In September of
that year, an explosion shut down the mine. He tried unsuccessfully to get the
mine back in operation prior to the strike in December 1962, and later, about
November 1963, was informed by a mining inspector that because of gas in the
mine, it would be at least 5 years before the mine could be operated again. Higgins
testified that he has abandoned the old mine and lease. He now has a hand-loading
mine which he bought from Grundy and is operating it with the help of some of his
former employees. His other former employees, or most of them, are working for
Grundy. Higgins formed a new corporation to operate his present mine.
Five other members of Sewanee were at the time of the strike operating coal mines
under oral arrangements with Consolidated. They had contracts with Tennessee
Valley Authority (herein called TVA) to supply coal, and Consolidated signed their
performance bonds. About November 27, 1963, Consolidated wrote these five oper-
ators a letter, informing them that TVA officails had indicated that unless deliveries
of coal were resumed under the supply contracts, TVA might cancel the contracts
and seek damages under the performance bonds. A few days later, after ascertain-
'668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that the five operators would be unable to resume operations because of the
strike, Consolidated notified them that their oral leases were being canceled. Con-
solidated then substituted other producers under Grundy to supply the coal to TVA.
These five Sewanee members whose leases were thus canceled are listed below.
H. Willis Flynn Coal Company , Inc., was operated by H. Willis Flynn . After his
oral lease was canceled, he worked as a foreman for Grundy for a while , then exer-
cised an option given him by Consolidated to operate a new mine He formed a
new corporation , Sycamore Coal Company , and although he had not yet signed a
lease for the mining property at the time of the hearing , was in the process of open-
ing the new mine with the aid of a few employees and using Grundy equipment.
The equipment in Flynn's old mine had been burned up
Goodspring Coal Company , Inc., was operated by Fred Morrison , Sr., its president.
He is now dead . Funeral services for him were being held on the last day of the
hearing.
Martin Coal Company was operated by Charles Martin. He removed his equip-
ment from his mine when the strike started and it is still intact . Paul B Callis , presi-
dent of Consolidated as well as of Grundy, testified that due to Martin 's age, he does
not intend to lease any of Consolidated 's mining property to Martin when the strike
is over.
North End Coal Company, Inc., was operated by Harley Bryant . He testified that
the mouth of his mine has fallen in and that there is water in it but he believes that it
can be cleaned up and operated again . He testified that he would like to resume
mining operations when the strike is settled . Consolidated 's President Callis testified
that he would be glad to try to negotiate a lease with Bryant when the strike is settled.
J. W. Sanders Coal Company , Inc., was operated by John W. Sanders . He testified
that although he has no arrangements whereby he may resume coal mining after the
strike, it is his intention to do so if he can. Consolidated 's President Callis testified,
however, that due to Sanders ' age, he does not intend to permit Sanders to resume
operations on Consolidated 's property.
VI. MEMBERS OF SEWANEE WHO WERE INDEPENDENT MINE OPERATORS
Hubert Fults , d/b/a Hubert Fults Coal Company , was operating under a lease
from Earl Patton , who owned the mining property, in the fall or winter of 1962.
Fults surrendered the lease to Patton who then operated the mine for about 6 weeks.
Earl Patton 's name does not appear on the list of Sewanee members attached to the
representation petition, but it was agreed at the hearing that Earl Patton, as well as
Hubert Fults , had applied for membership and were considered members. During
the strike , Patton has been operating a small mine at Graysville in Bledsoe County.
He testified that he would like to open the mine he took back from Fults if the strike
is settled satisfactorily and if he is financially able to start it again.
C. P. Hunziker , d/b/a C. P. Hunziker Coal Company , was operating a mine on
Hunziker 's own property prior to the strike. He testified that he is 69 years old, too
old to start mining again , and that his mine is for sale . For the past 3 years he has
been operating a motel which he bought just before the strike began. He had started
operating it while still mining.
Frank Hunziker Coal Company was operated by Frank Hunziker , a brother of
C. P. Hunziker , prior to the strike. The latter testified that the mine operated by his
brother has not been in operation since the strike.
Leon Patton , d/b/a Leon Patton Coal Company , owns a mine which, prior to the
strike, was operated by his father , James Patton Leon Patton has purchased a home
in Chattanooga where he has been working for DuPont for about 11/z years. His
mine equipment has been pulled from the mine and is for sale. James Patton testi-
fied that he has no intention of going back into the coal mining business and is
presently cutting timber on land which he owns.
J. R. Patton Coal Company was operated by J. R . Patton . According to his
brother, James Patton , he is now working as a coal loader for Willis Flynn.
M. A. Payne, Inc., was shown in the prior hearing to be an independent operator,
but no evidence was adduced at this heating regarding it.
VII. SEWANEE : SURRENDER OF ITS CORPORATE CHARTER
When the employers , in September 1962, decided to bargain on a multiemployer
basis and formed Sewanee , they incorporated it On June 8, 1964, the board of
directors of Sewanee met and adopted a resolution calling for the surrender of the
charter of the corporation and for its dissolution . Pursuant to the resolution , Sewanee's
charter was surrendered to the State of Tennessee on June 10 ,1964.
SEWANEE COAL OPERATORS' ASSOCIATION, INC. 669
The resolution for dissolution of the corporation and surrender of its charter inso-
far as it purports to relate to the purpose of such action, is set forth below:
WHEREAS, heretofore when Sewanee Coal Operators Association, Inc. formed
in September, 1962 it expressed in its purpose an idea of self-help and negotia-
tions covering full properties owned by Tennessee Products & Chemical Corp.
and Tennessee Consolidated Coal Co., with the operators being brought together
for self-help; and
WHEREAS, during the early months of its existence the operators on both sides
of the mountain did cooperate fully and both big companies did cooperate with
said Association and became members; and
WHEREAS, its matters with regard to strike with United Mine Workers of
America became worse and the parties attempted to negotiate and the entire
coal fields were shut down by strike on December, 1962; and
WHEREAS, in February of 1964 Tennessee Products & Chemical Corporation
leased their entire leaseholdings to one Stamper Collins and wife, Susie Collins
of Oak Ridge, Tennessee; and
WHEREAS, Tennessee Products & Chemical Corporation exercised certain
rights allegedly reserved in their leases, cancelled all leases of the operators who
were members of this Association, with the exception of some very few; and
WHEREAS, properties operated heretofore by Tennessee Products & Chemical
Corporation were no longer within the leasehold and operations of this Associa-
tion; and
WHEREAS, there remains only four (4) companies of said Association who
have not received cancellation, being Thomas Coal Co., Leon Nunley Coal Co,
Marshall Meeks Coal Co., and Easy Coal Co., all others having been cancelled;
and it further appearing that the entire purpose of said Association had been
voided; .. .
VIII. CONCLUSIONS AND RECOMMENDATIONS
It is clear that most of the many changes reflected by the record in the status of the
mine operators who formed Sewanee in September 1962, have resulted either directly
or indirectly from the long and bitter strike which commenced on December 26, 1962,
and is still in progress. Even the contract and agreement of sublease between Prod-
ucts and the Collinses, which appears to have played such a strong role in the deci-
sion of Sewanee to dissolve and surrender its corporate charter, may well have been a
result of the strike and the inability of Products to furnish coal to TVA, as it had
committed itself to do. This contract, as stated on its face, was intended to create a
relationship in the nature of the legal status of landlord and tenant, with Products
as the landlord and the Collinses as tenants. Although the contract is for a duration
period of about 8 years, it has a forfeiture provision which could well result in an
early reversion of the subleases to Products. Products remains in existence and is
still responsible under the lease agreements to the owners of the property from which
it acquired its leases, and to several of the Sewanee members to whom it subleased
mining property; namely, Easy Coal Company, Marshall Meeks Coal Company, Leon
Nunley Coal Company, and Virgil Thomas Coal Company.
Products was an important member of Sewanee, not because of the number of its
employees in the bargaining unit-for it had only three-but because it had mining
contracts or leases with so many of the other Sewanee members. It cannot be
assumed, however, that Products' lessee, Stamper Collins, will be any less anxious
than was Products to make arrangements with operators to produce coal. Collins
demonstrated his concern on this score in seeking to arrange with James M Campbell,
who operated Coal Creek Coal Company, with Marshall Meeks, with Joseph H.
Graham, who operated Ninth West Coal Company, and with John Stephenson to
resume mining operations. Products appears to have contemplated that those mine
operators who had been producing coal for it before the strike might wish to continue
doing so for Collins, for in the cancellation letters sent 25 of the operators on April 10,
1964, Products suggested that if they desired to continue mining operations, they
should contact Stamper Collins.
Grundy argues that the signing by UMW of a separate collective-bargaining con-
tract with Stamper Collins has operated to destroy the multiemployer bargaining unit.
However, since Collins had never joined Sewanee and never became a part of the
multiemployer bargaining unit, Grundy's contention in this respect must be rejected.
Nor does the fact that Sewanee surrendered its corporate charter and dissolved
itself as a corporation destroy or render inappropriate the multiemployer bargaining
unit. It is of little consequence whether the employers be organized in corporate
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form or, indeed , whether they have any formal organization at all.1 More important
is the fact found by the Board that coal mining operators in the area here involved
had a history of successful bargaining on a multiemployer basis, and that they
expressed the desire to continue bargaining on such multiemployer basis, as evi-
denced by their formation of an association for that purpose, and their meetings with
UMW before the strike for the purpose of attempting to reach a bargaining contract.
It is obvious from the record that most of the small operators in the area here
involved have little or no bargaining strength as individuals and must follow the lead
of a large operator such as Grundy, or else band together as they sought to do under
Sewanee and , in conjunction with Grundy, assert their collective strength in bargain-
ing. The fact that many of them-because of heavy financial losses suffered during
the strike , or because the mines which they had been operating are no longer operable
-expressed the view that they will not be financially able to resume their business as
operators if and when the strike is settled , does not, in my view, warrant a finding
that the multiemployer unit no longer exists or is inappropriate . Many of these
operators have operated coal mines for years or for most of their lives, and have
obtained financial assistance before in starting and continuing to operate mines. Con-
solidated signed the performance bonds of a number of those operators producing coal
for TVA. Grundy only recently has permitted one of the operators , Flynn, to use
some of its equipment in getting a new mine started . In the past , small operators
on property controlled by Products have formed partnerships and obtained supply
contracts with TVA, with Products signing as surety on their performance bonds.
Products assisted some of them financially in other respects . Accordingly, despite
the testimony of some of the operators that they have no present intention of resuming
the business of operating coal mines , I am convinced that some of those so testifying
will find the means of again operating their old mines or other mines in that area, and
that they will continue to feel the need of collective strength in bargaining with the
representative of their employees as they did when they joined Sewanee.
The record shows that several of the small operators who have been found by the
Board to constitute a part of the multiemployer bargaining unit operated under cor-
porate names but are now operating as individuals or under different corporate names.
Where an individual had the sole or controlling interest in a corporation which was
a member of Sewanee, it seems only fair and realistic , for purposes of this proceed-
ing, to consider him rather than the corporation as the person constituting a part of
the multiemployer group. Accordingly , where the individual forms another corpora-
tion and operates a new or different mine in the geographic area here involved, his
employees should be treated as continuing to constitute , a part of the multiemployer
bargaining unit. By the same token , it should not be considered material for the
purposes of this proceeding that a member of Sewanee is now operating , or will
when the strike ends be operating, a mine in the same geographic area, different from
the one he operated prior to the strike.
In view of the constantly shifting status of the small mine operators who were
members of Sewanee , and the continuing uncertainty as to what the status of each
will be when and if the strike is settled , I see no useful purpose in attempting at this
stage to identify those who at the date of the reopened hearing may have appeared
to be in business and those who may have appeared to be out of business as coal
mining operators . It is sufficient , as the record shows, that a number of them in addi-
tion to Grundy are now engaged in operating coal mines , and that others have
expressed an intention or desire to resume operating their old mines or to start operat-
ing new ones when and if they can.
It may well be that a substantial number of those operators who were members of
Sewanee before the strike started will never again operate coal mines in the area here
involved. But even a substantial diminution in the membership of a multiemployer
unit does not destroy that unit or render it inappropriate?
Employers , of course, may effectively withdraw from multiemployer units at appro-
priate times . But plainly a withdrawal after bargaining negotiations have commenced,
a strike has ensued , and the union has won an election in the multiemployer unit is
not an appropriate time .3
1 Belleville Employing Printers , 122 NLRB 350, 353.
2 See Puerto Rico Steamship Association, 116 NLRB 418, in which the number of em-
ployers in the unit had diminished from 12 to 14, and International Restaurant Asso-
c Bates for and on behalf of its members , Niblers and Crenshaw , Inc. and La Maria Corp.,
d/b/a Lococo 's Restaurant, 133 NLRB 1088, in which the number had diminished from
10 to 2
'Retail Associates, Inc., 120 NLRB 388; Dittler Bros, Inc., at al., and Frank Carter
and Julia Akins, Partners, d/b/a Superior Printing Company, 132 NLRB 444; Fair-
banks Dairy, Division of Cooperdale Dairy Company, Inc., 146 NLRB 893.
LOCAL 25, INT'L BROTHERHOOD, ETC. 671
The multiemployer bargaining unit heretofore found by the Board to be appro-
priate was described in the Decision and Direction of Election as comprising the
production and maintenance employees of all members of Sewanee, but in view of
the fact that Sewanee in its corporate form has dissolved since the UMW won the
election, the multiemployer unit is now more accurately described as comprising the
production and maintenance employees of those coal mining operators who were
formerly members of Sewanee. It is accordingly recommended that the Board certify
the UMW as the collective -bargaining representative of all the production and main-
tenance employees of coal mining operators who were formerly members of Sewanee,
including those who are not now operating but who resume the business of operating
coal mines at the end of the strike or before the conclusion of the strike.
Local 25, International Brotherhood of Electrical Workers, AFL-
CIO and Emmett Electric Company, Inc. and Industrial Work-
ers of Allied Trades, Local 199, affiliated with the National
Federation of Independent Unions; United Construction Con-
tractors Association , Inc.; D-Lion Construction Co., Inc. , Parties
in Interest. Case No. 29-CD-8 (formerly 2-CD-316). May 17,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Emmett Elec-
tric Company, Inc., herein called Emmett, alleging a violation of Sec-
tion 8(b) (4) (D) of the Act by Local 25, International Brotherhood
of Electrical Workers, AFL-CIO, herein called Local 25. A hearing
was held before Hearing Officer Jacques Schurre on November 18,
1964, at which all parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
ing upon the issues. The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed.
Thereafter, briefs were filed by Emmett, Local 25, and Industrial
Workers of Allied Trades, Local 199, affiliated with the National Fed-
eration of Independent Unions, herein called Local 199, which the
Board has duly considered.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following findings :
1. The business of the Employer
Emmett is an electrical contractor with its place of business in Levit-
town, Long Island , New York. In July 1964, Emmett was engaged as
an electrical subcontractor in the construction of the East End Syna-
gogue, Long Beach, Long Island, New York, where the alleged dispute
occurred.
'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 McCulloch and
Members Fanning and Brown].
152 NLRB No. 53.