Union Collieries Coal Co.

National Labor Relations Board - Board Decisions

Sep 18, 1942

44 N.L.R.B. 165 (N.L.R.B. 1942)

'In `the Matter of UNION COLLIERIES COAL COMPANY, OAKMONT, PENN- SYLVANIA. and MINE OFFICIALS' UNION OF AMERICA (IND.) Case No. R-3464 Investigation and Certification of Representatives : unit of minor supervisory employees cei i i jied as result of election Practice and Procedure : petitions to stay election and reopen record denied with opportunity, to present oral argument before final disposition of proceeding,, offers of proof presented at oral argument as basis for reopening record, considered by Board and found, even if proved, not to alter Board's conclu- sions as to the appropriateness of a unit of minor supervisory employees. SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES September 18, 1942 On 'June ' 15, 1942, the National' Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding,' findin that all assistant foremen, fire bosses, weigh bosses, and coal inspectors employed at the three mines of Union Collieries Coal Company, herein called the Company, ex- cluding mine foremen and night bosses constitute a unit appropriate for the purposes of collective bargaining, and directing an election among said employees to determine whether or not they desired to be represented by Mine Officials' Union of America (Ind.), herein called the Union. - On July 7, 1942, before the election was held, the Company filed a petition requesting that the election be stayed and that the case be reopened for further hearing to permit the introduction of addi- tional evidence . On the same day the Commonwealth of Pennsyl- vania, Department of Mines , filed a petition also requesting that the election be stayed, and that the Commonwealth be granted leave to 'intervene and to present evidence at a further hearing. Petitions for leave to intervene and to present additional evidence as amici cur441e , were also filed by the Central Pensylvania Coal Producers' Association , Somerset County Coal Operators ' Association , Ohio Coal Association, Northern West Virginia Coal Association , and Southern ' 41"N L . R B. ,961. 44 N. L . R B., No. 3i. 165 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coal Producers' Association. On July 9, 1942, the Board advised the petitioners that the requests for a stay of the election were denied, but that before final disposition of the case was made the petitioners would be given an opportunity to present oral argument. On July 10, 1942, pursuant to the Board's Direction, an election by secret ballot was held, under the direction and supervision of the Regional Director for the Sixth Region and on July 11, 1942, the Regional Director issued and duly served upon the parties an Elec- tion Report. No objections to the conduct of the ballot or the Elec- tion Report have been filed by any of the parties. As to the balloting and the results thereof, the Regional Director reported as follows : Total on eligibility list-------------------------------------- 5() Total ballots cast-------------------------------------------- - 50 Total ballots challenged------------------------------------ 1 Total blank ballots----------------------------------------- 0 Total void ballots------------------------------------------ 0 Total valid votes counted___________________________________ 49 Votes cast for. Mine Officials ' Union of America (Ind.) ------- 44- Votes cast against Mine Officials ' Union of America ( Ind ) ---- 5 On July 15, 1942, Mine Officials' Union of America (Ind.), herein called the Union, moved that the above-described petitions-of the Company and of the Commonwealth of Pennsylvania be dismissed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Washington, D., C., on August 3, 1942. The Company, the Union, and the Commonwealth of Pennsylvania were represented by counsel, who participated in the oral argument. Oral argument was also presented in behalf of Central Pennsylvania' Coal Producers' Association, Ohio Coal Association, Southern Coal Operators' ,Association, and Somerset County Coal Operators' Asso- ciation. The petitioners contended that the record made at the hearing is inadequate and that if the record were reopened they would introduce evidence establishing that the Board erred in finding that the supervisory employees involved constituted an appropriate bargaining unit and in directing an election among them. Spe- cifically the petitioners offered to prove: (a) that assistant mine foremen and fire bosses are officials of the Commonwealth of Pennsylvania and as such are excluded or-in any event should' be excluded as a matter of policy, from enjoyment of the right to collective bargaining guaranteed by the Act; ' (b) that in strikes which have occurred since the hearing in other mines, similar supervisory employees, m contrary Ito their obligation as management representatives, have urged employees under them to join their strike; UNION 'COLLIERIES COAL COMPANY, OAKMONT; PA. _167- (c) that these supervisory employees perform managerial func- tions beyond those -developed at the hearing, e. g., the assistant mine foremen have power to contract with the miners on behalf of management; and (d) that testimony of union witnesess at the original -hearing to the effect that the Union had entered into collective bargain- -•ing agreements covering similar groups of employees on a single, employer unit basis, is contrary to the fact. We have carefully considered the offers of proof made by the peti- tioners and conclude that these offers, if proved, would not alter our conclusion. The contention of the Commonwealth of Pennsylvania, that assistant mine foremen and fire bosses are officials of the Com- monwealth, was urged by counsel for the Company at the original hearing, and evidence was introduced in support thereof. Counsel for the Commonwealth specified no additional proof which would be offered. This issue therefore was before us, has been considered and has been already decided contrary to the petitioner's contention 2 The sole issue before us is whether these supervisory' employees are protected by the statute in the exercise of their right to organize and bargain collectively. We do not view the statute as vesting' with us a discretionary, ,authority to expand or contract the jurisdictional limits considered and' expressed by Congress. That the supervisory personnel here involved are "employees" within the meaning of Sec- tion 2 (3) of the Act is self-evident from the definition of "employee," which is so broad in terms as to make discussion a barren academic exercises As the Supreme Court has declared, "the problem of what workers were to be covered by legal remedies for 'assuring the right of self-organization was a familiar one when Congress formulated the Act." Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 191. The definition embodied in Section 2 (3) "was not fortuitous phras`- ing." (id.).4 Indeed, the specific exclusion of three kinds of em- 3 we note that in'the Matter of C A. Hughes 1 Company and Mine Officials and Mainte- nance Men Union of Cambria County, No 78, 1941 , the Pennsylvania State Labor Board, on a similar issue, held that assistant mine foremen and fire bosses were not,officials of the Commonwealth of Pennsylvania 3 "A foreman , in his' relation to his employer , is an employee , -while in his relation to the laborers under him lie is the representative of the employer and within the definition of section 2 (2) of the Act Nothing in the Act excepts foremen from its benefits nor trom protection against discrimination not unfair - labor practices of the master." 1. L R B. v. Skinner