Thermal Coal Co.

National Labor Relations Board - Board Decisions

Jul 19, 1943

51 N.L.R.B. 434 (N.L.R.B. 1943)

In the Matter of THERMAL COAL CO. and UNITED MINE WORKERS OF
AMERICA
Case No. R-5579.Decided July 19, 1943
Mr. Burrel Barash, of Galesburg, Ill., for the Company.
Mr. Oscar E. Carlstrom, of Aledo, Ill., for the U. M. W. A.
Messrs. C..C. Dreman and Russell Craig, .of Galesburg,- Ill,., -and
Mr. William Crompton, of Springfield, Ill., for the Progressive.
Mr. Robert Silagi, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition and an amended petition duly filed by United Mine
Workers of America, •-herein called-the U. M. W. A.,'alleging that a
question affecting commerce had arisen concerning the representation
of employees of Thermal Coal Co., Galesburg, Illinois, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Lester Asher, Trial
Examiner. Said hearing was held at Galesburg, Illinois, on June 23,
1943. The Company, the U. M. W. A., and Progressive Mine
Workers of America, District No. 1, and Local Union No. 24 thereof,
herein called the Progressive, appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witness, to introduce evidence bearing on the issues, and
to file briefs with the Board.
At, the hearing- the Progressive moved to dismiss the petition.
The Trial Examiner reserved ruling on this motion for the Board.
For reasons discussed hereinafter, the motion is hereby denied. The
Trial Examiner's rulings made at the hearing are free from prejudi-
cial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
51 N. L. R. B., No 84.
434
THERMAL COAL COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
435
Thermal Coal Co. is an Illinois corporation maintaining its prin-
cipal office at Galesburg, Illinois. The Company is engaged in the
mining, sale, and distribution of bituminous coal. The Company
operates one mine, called the Thermal Mine, located about 3 miles
east of Knoxville, Illinois. During the year 1942 the Company's
sales amounted in value to approximately $300,000. About 10 percent
of the total sales represents shipments to points outside the State of
Illinois.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America is a labor organization admitting
to membership employees of the Company.
Progressive Mine Workers of America, District No. 1 and Local
Union No. 24 thereof, affiliated with the American Federation of
Labor, are labor organizations. Local 24 admits to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Since January 1941, the Company has had closed-shop agreements
with the Progressive. The last contract adopts, with minor excep-
tions, the provisions of an agreement, effective April 1, 1941, to March
31, 1943, negotiated between the Progressive and the Coal Producers
Association of Illinois; herein called the Association. One week prior
to the termination of their contract, the Association and the Pro-
gressive agreed to continue it for 1 month pending further negotia-
tions. On March 30, the Company and the Progressive agreed to be
bound by the continuation to May 1, of the master contract between
the Association and the Progressive. By subsequent written agree-
ments, the Association and the Progressive further extended the life
of their contract, first to May 30, and then to June 30, 1943. On
May 3, the Company and the Progressive agreed to be bound by the
terms of the continuation of the master agreement to the end of May.'
During the month of April 1943, the president of the Company
learned from various sources that the U. M. W. A. was attempting
t Literally , on March 30, 1944, the Company and the Progressive agreed that terms of
the master contract between the Association and the Piogressive should continue in force
until May 1, 1943 On May 3, 1943 , the Company and the Progressive signed an agree-
ment continuing the life of the contract between the Association and the Piogressive until
Mai 31 1941
540612-44-vol 51-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to organize the employees of the Company., On May 20, 1943, the
Company requested membership in the Association. On May 22,
the U. M. W. A. requested the Company to recognize it as the exclu-
sive bargaining representative of the Company's employees. Two
days later the Company refused this request stating that it would not
recognize the U. M. W. A. without a Board certification. On May
29, the Association addressed a letter to the Company informing it
of the fact that its application for membership had been approved.
The Company and the Progressive contend that the existing con-
tract between them constitutes a bar to a present determination of
representatives. Inasmuch as the last extension of the contract
between the Company and the Progressive expired on May 31, and
the last extension of the contract between the Association and the
Progressive expired on June 30 there is no merit to this contention.'
Statements of the Regional Director and- the Trial Examiner,
introduced into evidence at the hearing, indicate that each union
represents a substantial number of employees in the unit hereinafter
found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The U. M. W. A. seeks a unit of production and maintenance enl-
ployees, confined to employees of the Company. The Company and
the Progressive contend that the appropriate unit is the multiple
employer unit established by contract between the Progressive and
2 See Matter of Link -Belt Corporation , 30 N L R B 1000
8 The Regional Director reported that the U M W A submitted 42 application -
for-mem-bership cards all of which bore apparently genuine original signatures ; that the names
of 40 persons appear ing on the cards were listed on the Company' s pay roll of May 16 to 31,
1941, which contained the names of 71 employees in the alleged appropriate unit . The Trial
Examiner reported that all the cards were dated between Apr il 30 and May 21, 1943
Progressive submitted 51 authorization cards all of which bore apparently genuine orig-
inal signatures The names of 48 persons appearing on the cards were listed on the
Company ' s pay roll of May 16 to 31, 1943, which contained the names of 71 employees
in the appropriate unit . Of these cards one was undated ; I was dated May 3, 1943; and 49
were dated between May 28 and June 3 , 1913 The cards submitted by Progressive con-
tain the following clause :
The full power and authority to act for the, undersigned as described herein super-
sedes any power or authority heretofore given to any person , or organization to
represent me
The Progressive urges the dismissal of the petition on the ground that the application
cards submitted by the U M. W. A , all being dated before May 22, 1943, are too remote
and do not show a present substantial interest , u bile on the other hand , 49 of the 51 designa-
tions submitted'by the Progressive were signed after May, 28 , 1943 , and expressly revoke
any prior authorization . This contention is without merit The possible duplication of
des!gnations raises a doubt as to the intent of the employees with respect to representa-
tion which can best be resolved by an , election. We also note that the contract between
the Company and the Progressive provides for a closed shop See Matter of Service Wood
heel Company , Inc, 41 N L R B 45 , and cases cited therein
. THERMAL COAL COMPANY 437
the Association consisting of all the production and maintenance
employees of the coal operators who are members of the Association.
The contract between the Association and the Progressive recog-
nizes the Progressive as the exclusive bargaining agent representing
the employees of the members of the Association. The bylaws of the
Association provide that it shall negotiate all labor agreements on
behalf of its members. The Company and the Progressive claim
that by reason of the fact that the Company has for the past 2 years
adopted, in substance, the provisions of the master contract between
the Association and the Progressive, and that prior to any claim of
majority representation made by the U. M. W. A., the Company
applied for membership in the Association, the single employer unit
sought by the U. M. W. A. is inappropriate.
Where there has been a long history of collective bargaining on
an association basis, the Board has dismissed petitions seeking a
single employer unit.' In the instant case, however, there has been
a history of collective bargaining on a single employer basis for more
than 2 years.5 In view of that fact we are of the opinion that a
single employer unit may appropriately be established despite the
present membership of the Company in the Association; and we hold
that the determining factor is the desire 'of the employees themselves.
We conclude that an election should be held among the production
and maintenance employees of the Company, including the inside truck
,driver, but excluding office and clerical employees, outside truck driv-
ers, the mine manager, assistant mine manager, top foremen, and any
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action," to determine whether
they desire to be represented by the U. M. W. A., by the Progressive,
or by neither union. Upon the results of this election will depend in
part the determination of the appropriate unit for the purposes of
collective bargaining. If a majority of such employees choose the
IT. M. W. A., we shall hold that they constitute an appropriate bargain-
ing unit, and we shall certify the U. M. W. A. as their exclusive bar-
,aluing, representative. 'If, however, a majority qf, such employees
cast their ballots for the Progressive or for neither union , or if the
votes cast for the Progressive and for neither union together constitute
' See Matter of Alston Coal Company , 13 N. L R B - 683; Matter of Stevens Coal Com-
pany, 19 N. L R B. 98
c The Company had knowledge of the organizational efforts of the U M W . A at least 1
month prior to the time it became a member of the Association Moreover, the U. M. W A.
made its claim upon the Company prior to the date of the Association's acceptance of the
Company into membership.
9 The parties agreed that in the event the Board finds the single employer unit to be
appropriate, then the unit established by the contract between the Company and the
'Progressive shouhi be the basis for the Board's finding in this respect The voting group
describ,,d above conforms substantially to this agreement of the parties.
438 DECISIONS OF NATIONAL LABOR RE[LATIONs BOARD
a majority, we shall conclude therefrom that these employees do not
desire the single-employer unit and we shall dismiss the petition of
the U. M. W. A. In view of the absence of a petition by the Progres-
sive requesting a certification of representatives in the unit it here
claims to be appropriate, it will not be necessary, if a majority of the
employees in the voting group choose the Progressive, to determine
that any unit is appropriate or whether the Progressive has been
designated by a majority of the employees in the unit.?
V. THE DETERMINATION OF REPRESENTATIVES
At the present time the Company is operating at less than its total
capacity. In consequence thereof, approximately half of its full com-
pl'enient of employees works during any given week. The parties are
agreed however, and we find, that all employees including those tem-
porarily laid off shall be entitled to vote. We shall direct that the
question concerning representation which has arisen be resolved by an
election by secret ballot among the employees in the voting group who
were employed during the pay-roll period immediately preceding the
date of the Direction of Election herein, subject to the limitations and
additions set forth in the Direction. ,
DIRECTION OF ELECTION
By virtue of and pursuant to the poR-er vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation' to ascertain representa-
tives for the purposes bf collective bargaining with Thermal Coal
Co., Galesburg, Illinois, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Thirteenth region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Section
10, of said Rules and Regulations, among all the production and
maintenance employees of the Company, including the inside truck
driver, but excluding office and clerical employees, outside truck driv-
ers, the mine manager, assistant mine manager, top foremen, and any
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, who were employed
during the pay-roll period immediately preceding the date of this
7 See Matter of Bun Shtpbwilding & Drydoek Company , 14 N. L . R B. 292 ; Matter of
L B. Lockwood Company. 16 N L R. B. 6.5; and Matter of General Petroleum Corporation
of California, 39 N. L . R. B. 1180.
THERMAL COAL COMPANY 439,
Direction, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off, and
including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those employees
who have since quit or been discharged for cause, to determine whether
they desire to be represented by United Mine Workers of America, or
by Progressive Mine Workers of America, District No. 1, affiliated
with the American Federation of Labor," for the purposes of collective
bargaining, or by neither.
8 A request to appear thus on the ballot is hereby granted.