Williams Coal Co.

National Labor Relations Board - Board Decisions

Nov 13, 1939

17 N.L.R.B. 629 (N.L.R.B. 1939)

In the Matter Of WILLIAMS COAL COMPANY and UNITED MINE
WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O:
and PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT #5, AFFILI-
ATED WITH THE A . F. OF L ., PARTY TO THE CONTRACT
In the Matter Of WILLIAMS COAL COMPANY and UNITED MINE WORK-
ERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O.
Cases Nos. C-1411 and R-1608, respectively. Decided Novem-
ber 13, 1939
Coal Mining Industry-Settlement: stipulation providing for compliance with
the Act, including disestablishment of company-dominated union-Order: en-
tered on stipulation-In;wstigatio)i, of Representatives: stipulated : respondent
refuses to recognize either of rival labor organizations unless certified by the
Board-Unit Appropriate for Collective Bargaining : all persons in the mining
operations of the respondent as production employees , excluding superintend-
ents, mine foremen , room bosses , face bosses, top bosses, entry bosses, electri-
cians in a supervisory capacity , all other supervisory employees , and "guards"
or "watchmen"-Representatives : eligibility to participate in choice : employees-
ordered reinstated pursuant to prior stipulation-Election Ordered: pursuant
to stipulation.
Mr. Arthur R. Donovan, Mr. Colonel C. Sawyer, and Mr. Robert
D. Malarney, for the Board.
Gordon, Gordon & Moore, of Madisonville, Ky., for the Respondent.
Mr. Ed. J.-Morgan, of Madisonville, Ky., and Mr. Earl E. Houck,.
of Washington, D. C., for the United.
Mr. John R. Kane, of Springfield, Ill., for the Progressive.
Mr. Langdon West and Miss Margaret Holmes, of counsel to the,
Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Mine-
Workers of America, District #23, affiliated with the Congress of
Industrial Organizations, herein called the United, the National La-
17 N. L. R. B., No. 52.
629
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bor Relations Board, herein called the Board, by the Regional Di-
rector for the Eleventh Region (Indianapolis, Indiana), issued its
complaint' dated October 20, 1939, against Williams Coal Company,
Crofton, Hopkins Coiunty, Kentucky, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor" practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. A
copy of the complaint accompanied by notice of hearing was duly
served upon the respondent, the United, and Progressive Mine Work-
ers of America, District #5, affiliated with the American Federation
of Labor, herein called the Progressive. The respondent did not
file an answer to the complaint.
On or about October 18, 1939, the United filed with the Regional
Director a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On October 20, 1939, the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, Article III, Section 10 (c) (2); and Article II, Section 36
(b), of National Labor Relations Board Rules and Regulations-
Series 2, ordered an investigation upon the petition and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice and further ordered that the two cases
be consolidated.
On October 31, 1939, the respondent, the United, the Progressive,
and counsel for the Board entered into a stipulation in settlement
of the case subject to the approval of the Board. On November 10,
1939, the respondent, the United, the Progressive and counsel for the
Board entered into a supplemental stipulation amending the com-
plaint; the stipulation and supplemental stipulation are set forth
below:'
STIPULATION
Williams Coal Company, hereinafter called the Respondent;
United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations, hereinafter sometimes
called the United; the Progressive Mine Workers of America,
District #5, affiliated with the American Federation of Labor,
hereinafter sometimes called the Progressive ; and Arthur R.
Donovan, Regional Attorney for the Eleventh Region of the
National Labor Relations Board, Colonel C. Sawyer and Robert
1 This case was consolidated with several others by orders of the Board dated August 9,
1937, May 3, 1939 , and July 17 , 1939, respectively . These orders of consolidation were
revoked by the Board 's order dated October 20, 1939.
WILLIAMS COAL COMPANY 631
D. Malarney, Attorneys, National Labor Relations Board, here-
inafter sometimes called the Board, hereby stipulate and agree
that:
I
Upon amended charges duly filed by the United on August
30, 1939, the National Labor Relations Board, by its Regional
Director for the Eleventh Region, acting pursuant to authority
granted in Section 10 (b) of. the National Labor Relations Act
(49 Stat. 449), hereinafter sometimes called the Act, and pur-
suant to authority granted by the Board's Rules and Regula-
tions, Series 2, Article II, Section 5, issued its Complaint on the
20th day of October, 1939, against the Respondent.
II
Upon a- Petition duly filed by the United on October 18, 1939,
the Board, on October 30, 1939, directed that an investigation of
bargaining representatives be made pursuant to Section 9 (c)
of the Act. Upon authorization by the Board, the Regional
Director for the Eleventh Region, issued notice of hearing on
October 20, 1939. In the petition filed by the United, it was
stated that both the United and the Progressive claim to have
been designated as collective bargaining representative by em-
ployees in the unit alleged in said petition to be appropriate,
and 'the United and the Progressive are each a party to said
proceeding (XI-R-239) instituted by said petition by virtue of
the Board's Rules and Regulations, Series 2, Article III, Sec-
tion 3.
III
The Respondent, the United, and the Progressive withdraw
all motions and other pleadings filed by them in the proceedings
herein, except that the United does not withdraw the amended
charges and the petition hereinbefore mentioned in Article I
and II of this stipulation.
IV
The Respondent , the United and the Progressive , hereby waive
their right to a hearing or hearings in these cases and all parties
expressly agree . that the amended charges filed on August 30,
1939, the complaint and notice of hearing issued on October 20,
1939, the petition filed by . the United on October 18, 1939, the
Order of the National Labor Relations Board directing an inves-
tigation and the notice of hearing pursuant to^ this Order for
247384-40-vol. 17-41
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation and this stipulation, may be introduced in the
record in the proceedings herein, by filing with the Chief Trial
Examiner of the National Labor Relations Board at Wash-
ington, D. C.
V
The Respondent, the United, and the Progressive, hereby
acknowledge service of the complaint and notice of hearing upon
the complaint and of the petition and notice of hearing pursuant
to the Board's Order directing investigation on and hearing and
expressly waive any right or privilege which they may have for
ten (10) days notice of hearing and to the holding of a hearing
or hearings in these cases and also waive any right or privilege
which they may have to the making of findings of fact and con-
clusions of law by the Board.
VI
The Respondent specifically admits each and every allegation
in paragraphs I and II of the Board's complaint herein and
stipulates and agrees that it is engaged in interstate commerce
within the meaning of Section 2 (6) and (7) of the Act.
VII
The United, the Progressive and the Independent Miners
Union, are, each and all of them, labor organizations within the
meaning of Section 2, (5) of the Act.
VIII
It is agreed by and between the Respondent and the Progres-
sive that the contract now in force and effect between the Re-
spondent and the Progressive is hereby cancelled and is void and
of no effect; provided, however, that nothing in this stipulation
shall preclude the Respondent from hereafter making an
agreement with the Progressive or any other labor organization
(not established, maintained or assisted by any action defined
in the National Labor Relations Act as an unfair labor prac-
tice) requiring, as a condition of employment, membership
therein, if such labor organization is the representative of the
employees as provided in Section 9 (a) of the Act. It is further
agreed that the Respondent will not recognize the Progressive
or any other labor organization as the exclusive representative
of its employees until and unless such labor organization is
certified by the Board as such exclusive representative in the
manner hereinafter provided.
WILLIAMS COAL COMPANY
IX
633
It is hereby stipulated and agreed that all persons employed
by the Respondent as production employees at its. Mannington
Mine, excluding superintendents, mine foremen, section fore-
men, room bosses, face bosses, top bosses, entry bosses, electri-
cians in a supervisory capacity, all other supervisory employees,
and "guards" or "watchmen," constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
X
It is hereby stipulated- and agreed by the Respondent, the
United, and the Progressive, that a question has arisen concern-
ing the representation of the employees in the bargaining unit
set forth in Article IX of this stipulation in that the United
and the Progressive each claim to have been designated by em-
ployees in the unit set forth above as representative for pur-
poses of collective bargaining, within the meaning of the Act,
and that Respondent refuses to recognize either the United or
the Progressive as the exclusive representative of all the em-
ployees in said unit until and unless the Board has made a
certification pursuant to Section 9 (c) of the Act.
XI
The Respondent, the United, and the Progressive, stipulate
and agree that the Board shall forthwith issue a Direction of
Election. The election shall be conducted within thirty (30)
days from the issuance of the Direction of Election by the Board
and shall be conducted in accordance with and pursuant to the
Act, the Board's Rules and Regulations, and decisions of the
Board in representation cases. The election shall be for the
purpose of determining whether the eligible employees desire
to be represented for the purposes of. collective bargaining by
the United, the Progressive, or by neither. The employees eli-
gible to vote in this election shall be all the employees in the
appropriate unit set forth in Article IX, above,, on. the payroll
of the Respondent one week preceding issuance of a Direction
of Election pursuant to this Article and all' those employees
ordered reinstated pursuant to a prior stipulation heretofore
entered into in a proceeding entitled "In the matter of Williams
Coal Company and United Mine Workers of America, District
#23" and indexed as Case No. C-318 in the Board's files. This
present stipulation in the instant proceedings and the Election
Report filed on the results of the election shall constitute com-
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petent evidence upon which the Board may make a certification
pursuant to Section 9 (c) of the Act.
XII
Upon the basis of the amended charges filed by the United on
August 30, 1939, the complaint herein and this stipulation, the
Respondent expressly consents to the issuance by the National
Labor Relations Board of an Order to the following effect :
ORDER
Upon the basis of this stipulation and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Williams Coal Com-
pany, Crofton, Kentucky, its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activity for the purposes of collective bar-
gaining or other mutual aid or protection, as guaranteed in Sec=
tion 7 of the National Labor Relations Act;
(b) Discouraging membership in the United Mine Workers
of America, District #23, affiliated with the Congress of Indus-
trial Organizations, or any other labor organization of its em-
ployees, or encouraging membership in the Progressive Mine
Workers of America, District #5,. affiliated with the American
Federation of Labor, or any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its em-
ployees or in any other manner discriminating in regard to
their hire and tenure of employment or any term or condition
of their employment;
(c) Dominating or interfering with the administration of the
Independent Miners Union, or dominating or interfering with
the formation or administration of any other labor organization
of its employees, or contributing support to any such labor
organization;
(d) Recognizing the Independent Miners Union as the repre-
sentative of any of its employees for the purposes of dealing
with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions
of employment;
WILLIAMS COAL COMPANY 635
2. Take the following affirmative action to effectuate the poli-
cies of the National Labor Relations Act:
(a) Withdraw and continue to withhold all recognition of
the Independent Miners Union as a representative of any of
its employees for the purpose of collective bargaining with the
Respondent in respect to rates of pay, wages, hours of employ-
ment, and other terms or conditions of employment, and com-
pletely disestablish the Independent Miners Union as such rep-
resentative;
(b) Immediately post notices in conspicuous places through-
out its plant and maintain such notices for a period of sixty
(60) consecutive days or for the period until the Board issues
its certification in Case No. XI-R-239, whichever period proves
to be of shorter duration, stating (1) that the Respondent will
cease and desist as aforesaid, (2) and that the Respondent will
take the affirmative action as aforesaid ; this notice shall contain
the substance of this Order, but need not be in the exact lan-
guage thereof;
(e) [sic] Notify the Regional Director for the Eleventh Re-
gion of the National Labor Relations Board within a period
of ten (10) days after the entry of this Order what steps have
been taken to comply with said Ordei.
XIII
The respondent hereby consents to the entry by an appropri-
ate United States Circuit Court of Appeals, upon application
by the Board, of a decree enforcing an Order of the Board as
hereinabove set forth in Article XII, and hereby waives further
notice of the application for such decree. The United and the
Progressive expressly waive any right or privilege to contest
the entry of this decree by an appropriate Circuit Court of
Appeals and hereby waive further notice of application for
entry thereof.
XIV
Wherever the facts, spelling of names, titles or other material
and documents in the record of the proceedings herein shall
appear inconsistent with the 'names, titles or other material set
out and made part of this stipulation, the spelling of names,
titles and other material in this stipulation shall be considered
correct.
XV
This stipulation shall be subject in all respects to the approval
of the Board and shall become effective immediately upon ap-
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proval by the Board. If this stipulation is not approved by the
Board, it shall be of no force and effect and shall not be used as
evidence against the parties hereto in any subsequent proceeding
herein.
XVI
The entire agreement between all parties hereto is contained
within the terms of this stipulation, and there is no verbal agree-
ment of any kind which varies, alters, or adds to said stipulation
in any respect.
SUPPLEMENTAL STIPULATION
It is hereby stipulated, consented to and agreed, by and be-
tween Williams Coal Company; United Mine Workers of
America, District #23, affiliated with the Congress of Indus-
trial Organizations; the Progressive Mine Workers of America,
District #5, affiliated with the American Federation of Labor;
and Arthur R. Donovan, Regional Attorney for the Eleventh
Region of the National Labor Relations Board, Colonel C.
Sawyer and Robert D. Malarney, Attorneys, National Labor
Relations Board, as follows :
1. That paragraph VIII of the complaint in the above entitled
proceedings, numbered XI-C-562, be deemed amended by inter-
lineation so that the first sentence thereof shall read as follows :
"Thereafter, and on or about August 20, 1938, the Independent
became merged with the Progressive."
On November 10, 1939, the Board issued its order approving the
above stipulation and supplemental stipulation, making them part of
the record, and transferring the proceeding to the Board for the
purpose of a decision and order by the Board.
Upon the basis of the above stipulation and the entire record in
the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
The respondent, a Delaware corporation with its principal office
and place of business in or near Crofton, Hopkins County, Kentucky,
is engaged at a place of business called the Mannington mine near
Mannington, Kentucky, in the mining, sale, and distribution of
coal.
2 The facts set forth in this section are based upon allegations in the complaint admitted
by the respondent.
WILLIAMS COAL COMPANY 637
The respondent, in the course and conduct of its business, mines
approximately 364,574 tons of coal annually and causes and has con-
tinuously caused a substantial quantity of coal, consisting of more
than 50 per cent of the coal mined, sold, and distributed by it as a
part of its business, to be supplied, delivered, and transported in in-
terstate commerce from its Mannington mine in the State of Ken-
tucky. The respondent agreed that it is engaged in interstate
commerce within the meaning of the Act.
We find that the above described operations constitute a continu-
ous flow of trade, traffic, and commerce among the several States.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations; the Progressive Mine
Workers of America, District #5, affiliated with the American Feder-
ation of Labor; and Independent Miners Union, are labor organiza-
tions as defined in Section 2 (5), of the Act.
M. THE QUESTION CONCERNING REPRESENTATION
In accordance with the terms of the stipulation, we find that the
United and the Progressive each claimed to have been designated by
employees in the unit hereinafter found to be appropriate for the
purposes of collective bargaining as their bargaining agent and that
the respondent refuses to recognize either the United or the Pro-
gressive as the exclusive representative of all the employees in said
unit until and unless the Board has made a certification pursuant to
Section 9 (c) of the Act, and that therefore a question has arisen
concerning representation of the employees of the respondent.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
:arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
-tends to lead to labor disputes burdening and obstructing commerce
.and the free flow of commerce.
V. THE APPROPRIATE UNIT
We find, in accordance with the terms of the stipulation, that all
persons employed in the mining operations of the respondent as pro-
638 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD
.duction employees, excluding superintendents, mine foremen, section
foremen, room bosses, face bosses, top bosses, entry bosses, electri-
cians in a supervisory capacity, all other supervisory employees, and
"guards" or "watchmen," constitute a unit appropriate for the pur-
poses of collective bargaining, and that such unit will insure to the
said employees the full benefit of their right to self-organization
and collective bargaining and will otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the employees of the respondent can best be resolved by
the holding of an election by secret ballot: In accordance with the
terms of the stipulation, we find that the employees eligible to vote
in the election shall be all employees in the appropriate unit on the
pay roll of the respondent one week preceding the issuance of our
Direction of Election.
Upon the basis of the above findings of fact, stipulation,.. supple-
mental stipulation, and the entire record in the case, the Board makes
the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations, and Progressive Mine
Workers of America, District #5, affiliated with the American
Federation of Labor, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. A question affecting commerce has arisen concerning the repre-
sentation of employees of Williams Coal Company, Crofton, Hop-
kins County, Kentucky, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
3. All persons employed in the mining operations of the respond-
ent as production employees, excluding superintendents, mine fore-
men, section foremen, room bosses, face bosses, top bosses, entry
bosses, electricians in a supervisory capacity, all other supervisory
employees, and "guards" or "watchmen" constitute a unit appropriate
for collective bargaining, within the meaning of Section 9 (b)
of the Act.
ORDER
Upon the basis of the above findings of fact, stipulation, supple-
mental stipulation, and the entire record in the case, and pursuant
to Section 10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that Williams Coal Company,
WILLIAMS COAL COMPANY 639
Crofton, Hopkins County, Kentucky, its officers, agents, successors,
sand assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees in A he exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activity for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act;
(b) Discouraging membership in United Mine Workers of
America, District #23, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees, or
encouraging membership in Progressive Mine Workers of America,
District #5, affiliated with the American Federation of Labor, or any
other labor organization of its employees, by discharging or refusing
to reinstate any of its employees or in any other manner discriminat-
ing in regard to their hire and tenure of employment or any term of
condition of their employment;
(c) Dominating or interfering with the administration of the
Independent Miners Union, or dominating or interfering with the
formation or administration of any other labor organization of its
employees, or contributing support to any such labor organization;
(d) Recognizing the Independent Miners Union as a representa-
tive of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment.
2. Take the following affirmative action to effectuate the policies
of the National Labor Relations Act :
(a) Withdraw and continue to withhold all recognition of the
Independent Miners Union as a representative of any of its em-
ployees for the purpose of collective bargaining with the respondent
in respect to rates of pay, wages, hours of employment, and other
terms or conditions of employment, and completely disestablish the
Independent Miners Union as such representative;
(b) Immediately post in conspicuous places throughout its plant
and maintain such notices for a period of sixty (60) consecutive days
or for the period until the Board issues its certification in Case No.
R-1608, whichever period proves to be of shortest duration, stating :
(1) that the respondent will cease and desist as aforesaid; (2) and
that the respondent will take the affirmative action as aforesaid;
this notice shall contain the substance of the Order but need not be
in the exact language thereof;
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Eleventh Region of the
National Labor Relations Board within a period of ten (10) days
after the entry of this Order what steps have been taken to comply
with said Order.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargain-
ing with Williams Coal Company, Crofton, Hopkins County, Ken-
tucky, an election by secret ballot shall be conducted within thirty
(30) days from the date of this Direction under the direction
and supervision of the Regional Director for the Eleventh Region,
acting in this matter as agent for the National Labor Relations
Board and subject to Article III, Section 9 of said Rules and Regu-
lations, among all persons employed in the mining operations of the
Williams Coal Company, Crofton, Hopkins County, Kentucky, as
production employees on the pay roll of the respondent 1 week pre-
ceding the issuance of this Direction of Election, including those em-
ployees ordered reinstated pursuant to a prior stipulation heretofore
entered into in a proceeding entitled Matter of Williams Coal Com-
pany and United Mine Workers of America, District #23, 11 N. L.
R. B. 579, but excluding superintendents, mine foremen, section fore-
men, room bosses, face bosses, top bosses, entry bosses, electricians in
a supervisory capacity, all other supervisory employees, and "guards"'
or "watchmen" to determine whether they desire to be represented
by United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations or Progressive Mine Work-
ers of America, District #5, affiliated with the American Federation
of Labor, for the purposes of collective bargaining, or by neither.