Whaley Coal Co.

National Labor Relations Board - Board Decisions

Oct 1, 1959

124 N.L.R.B. 1113 (N.L.R.B. 1959)

WHALEY COAL COMPANY 1113
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth 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 com-
merce and the free flow thereof.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act, I will recommend that
they cease and desist therefrom and take certain affirmative action in order to effectu-
ate the policies of the Act.
The Trial Examiner has found that the Respondent discriminatorily laid off James
E. Davis and has since failed to reinstate him. I will recommend that the Respondent
offer James E. Davis immediate and full reinstatement to his former or substantially
equivalent position , and make him whole ( in accordance with the formula set out in
F. W. Woolworth Company, 90 NLRB 289) for any loss of pay which he may have
suffered by reason of the Respondent 's discrimination against him , by payment to
him of a sum of money equal to that which he normally would have earned as wages
from June 28, 1958, to the date of the Respondent's offer of reinstatement, less his
net earnings during said period. It will also be recommended that the Respondent,
upon reasonable request, make available to the Board and its agents all payroll and
other records pertinent to an analysis of the amount due as backpay.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local Union No. 282, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, is a labor organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of James E.
Davis, thereby discouraging membership in Local No. 282, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, and interfering with,
restraining, and coercing its employees in the exercise of their rights under Section 7
of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Whaley Coal Company and Scott County Miners Union, Peti-
tioner. Case No. 9-RC-3683.1 October 1, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Clifford L. Hardy, hearing
,officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
i Case No. 9-RC-3683, which was consolidated with Snyder & Randolph, Inc., 9-RC-
3684, for the purposes of hearing, was severed for purposes of decision
a The Intervenor, District 19, United Mine Workers of America, declined to stipulate
that the Petitioner Is a labor organization within the meaning of the Act. As the record
124 NLRB No. 156.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting. commerce exists concerning the representa-
tion of employees within the meaning of Section 9 (c) (1) and Section
2(6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of all employees at the Employer's
mine at Fonde, Bell County, Kentucky, including a truckdriver car-
ried on the Employer's payroll, but excluding truckdrivers who haul
coal under independent contracts with the Employer, office clerical
employees, professional employees, guards, and all supervisors as de-
fined in the Act. The Employer agrees to the appropriateness of
this unit. However, the Intervenor urges that truckdrivers who haul
under independent contracts with the Employer are employees within
the meaning of the Act who should be included in the unit.
The truckdrivers in question, whose services are obtained under in-
dependent contracts with the Employer, haul coal from the Employ-
er's mine tipple to a railroad siding where it is loaded on coal cars for
shipment to customers. These individuals, unlike the truckdriver on
the Employer's payroll, are paid on a tonnage basis for coal hauled
and hire men to drive their trucks when necessary. The Employer
carries no insurance covering the operation of their trucks and makes
no workmen's compensation tax payments for these truckdrivers.
Moreover, the record fails to establish that the Employer withholds
any social security or income taxes for these individuals, or that the
Employer extends any of its employees' terms and conditions of em-
ployment to these truckdrivers. In view of the foregoing and the
entire record, we find that the truckdrivers who haul coal under inde-
pendent contracts with the Employer are independent contractors and
not employees within the meaning of the Act. We shall therefore
exclude them from the unit.'
Accordingly, we find that all employees at the Employer's mine at
Fonde, Bell County, Kentucky, including the truckdriver carried on
the Employer's payroll, but excluding truckdrivers who haul coal
under independent contracts with the Employer, office clerical em-
ployees, professional employees, guards, and all supervisors as defined
in the Act, constitute a unit appropriate for-the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. At the time the instant petition was filed on June 8, 1959, the
Intervenor was not in compliance with the filing requirements of
Section 9(f), (g), and (h) of the Act. However, on September 14,
1959, Public Law 86-257, 86th Congress, cited as the "Labor-
Management Reporting and Disclosure Act of 1959,," was enacted.
Section 201(d) of that statute repealed the provisions of Section
discloses that the Petitioner exists for the purpose of dealing with employers concerning
wages, hours , and other conditions of employment of employees , we find that it is a
labor organization in the statutory sense.
3 See Cement Transport Inc., 111 NLRB 175.
WHALEY COAL COMPANY 1115
9(f), (g), and (h), effective September 14, 1959. The repeal raises a
question concerning the effect to be accorded to election results in this
and other representation cases involving noncomplying intervenors
who are successful in representation elections conducted after the re
peal but which are based upon petitions filed prior thereto.
Subsequent to the passage of Section 9(f), (g), and (h) in 1947,
the Board announced that labor organizations would be permitted
to intervene in representation proceedings notwithstanding their non-
compliance with that section. However, such intervention was limited
to advancing contract-bar and related contentions,4 and participation
in the elections which were directed was not allowed. In 1958, the
Supreme Court directed the Board in Bowman Transportation Com-
pany 5 to devise election procedures whereby noncomplying unions
which had been unlawfully assisted by employers could establish their
majority status in a Board-conducted election in which the arithmetic
results, rather than the unions, would be certified. While the thrust
of this decision was to enable these unions to demonstrate in complaint
cases that the effects of their unlawful assistance had been dissipated,
and to qualify as exclusive bargaining representative without being
certified,' the Board construed the Bowman decision to have under-
mined its previous rule denying to noncomplying intervenors a place
on the ballot in representation cases. Accordingly, we announced
in Concrete Joists tt Products Co., Inc.7 and other contemporary de-
cisions 6 that noncomplying intervenors could henceforth participate
in representation elections but, if successful therein, the Board would
merely certify the arithmetic results rather than award a certificate
to those labor organizations.
In applying this new rule to cases since Concrete Joists, the Board
took cognizance of the fact that a representation case is a continuing
proceeding. While it commences with the filing of a petition, it does
not normally culminate until an election has been conducted and the
successful labor organization has been certified, or a certificate of re-
sults has issued following rejection of union representation by the
voters. Because of the continuing nature of these proceedings, the
Board decided that no useful purpose would be served by certifying
the arithmetic results rather than the noncomplying intervenor if
such a union actually achieved compliance by the time the proceeding
terminated. Therefore, the Board announced that noncomplying in-
tervenors would not only be permitted to participate in representation
4E.g., General Electric Company (Medford Plant), 85 NLRB 150; Westinghouse Elec-
tric Corporation, 87 NLRB 463; Sterling Faucet Company, 119 NLRB 1225.
N.L.R.B. v. District 50, United Mine Workers of America, 355 U.S. 453.
e The Supreme Court, in United Mine Workers of America v. Arkansas Oak Flooring Co.,
351 U.S. 62, had previously ruled that Congress did not make the filing requirements of
Section 9 (f), (g), and (h) mandatory or a condition precedent to the right of a non-
complying union to be recognized as the exclusive representative of employees.
7120 NLRB 1542.
8 Sterling Processing Corporation, 120 NLRB 567; Retail Associates, Inc., 120 NLRB 388.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'elections, but could obtain a certificate if they succeeded in those
elections provided the unions perfected their compliance at a time
when a certificate would normally flow.' Thus, the compliance status
of these unions at the time of the potential award of a certificate was
made determinative.
If the election directed herein had been held prior to the enactment
of Public Law 86 257, the Intervenor could have qualified for a cer-
tificate if it had won the election because the machinery for meeting
the filing requirements of Section 9 (f), (g), and (h) at the appro-
priate time was available. With the passage of Public Law 86-257
and the consequent repeal of that section, Congress has not only dis-
pensed with the requirement of compliance as a condition to obtain-
ing a Board certificate, but has also withdrawn the very machinery
by which the Intervenor could achieve compliance if it wished to do
so. Accordingly, if the Intervenor is successful in the election which
we now direct, it would be anomolous for the Board to condition the
award of its certificate upon the achievement of compliance when
Congress has removed this requirement and there is no longer any
possible statutory avenue available to obtain compliance with it. We
therefore hold that, in the event the Intervenor wins the ensuing elec-
tion, we shall certify it rather than the results of the election notwith-
standing its noncompliance with Section 9 (f), (g), and (h), because
the Intervenor cannot and need not now comply. Moreover, in all
other representation cases pending before the Board involving peti-
tions filed prior to the repeal of that section, we shall issue a certificate
to all noncomplying intervenors who are successful in elections di-
rected after the repeal.
In reaching the conclusion announced above, we have carefully
studied the legislative history of Public Law 86-257 for congressional
guidance in construing the effect of the repeal of Section 9(f), (g),
and (h) on the issue here involved. Contrary to our dissenting col-
leagues' assertion, we do not believe that Congressman Griffin's state-
ment, which is the only congressional pronouncement concerning the
repeal of that section, was intended to make currently impossible the
Board's certification of an intervening noncomplying union in a repre-
sentation case if it wins a Board election and has not achieved com-
pliance at the time of certification. As the right to certification at-
taches as of the time the election has been consummated, to adhere to
the dissent would be to give prospective application to a section already
repealed. Nor do we believe that the principle of statutory construc-
tion adverted to by the dissenting Members has application here since
no "penalty, forfeiture, or liability" attaches in a representation case.
[Text of Direction of Election omitted from publication.]
9E.g., Illinois Farm Supply Company, '123 NLRB 793, footnote 2.
1
TENNESSEE PACKERS, INC. 1117
MEMBERS RODGERS and JENKINS, dissenting in part :
We do not subscribe to the decision of our colleagues to certify this
noncomplying Intervenor should it win the election.
That decision is contrary to the express legislative purpose of Public
Law 86-257, as shown by the statement of Congressman Griffin with
respect thereto that
Section 201(d) will become effective upon enactment of the bill.
However, the repeal of these sections [9(f), (g), and (h)] does
not have a retroactive effect and is not intended to excuse any
previous failure to comply therewith.
That decision is also contrary to the general principle of statutory
construction that
The repeal of any statute shall not have the effect to release or
extinguish any penalty, forfeiture, or liability incurred under
such statute, unless the repealing Act shall so expressly provide,
and such statute shall be treated as still remaining in force for
the purpose of sustaining any proper action or prosecution for
the enforcement of such penalty, forfeiture, or liability .. .
(1 U.S.C., Sec. 109).
As this Intervenor was not in compliance when this proceeding was
begun, was not in compliance when it intervened herein, was not in
compliance when Section 201 (d) became effective, and is not in com-
pliance when this decision is being issued, we see no reason to depart
from the established procedure for dealing with this kind of situation.
Tennessee Packers, Inc . and United Packinghouse Workers of
America, AFL-CIO. Case No. 10-CA-3956. October 8, 1959
DECISION AND ORDER
On June 9, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
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 Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report.
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 Rodgers, Bean, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
124 NLRB No. 160.