Shelley Patton

In the Matter Of SHELLEY PATTON and DISTRICIr 50, UNITED MINE WORKERS OF AMERICA Case No. R-1355.Decided November 2, 1912 Jurisdiction: mining industry. Investigation and Certification of Representatives : existence of question : failure to accord petitioner recognition; election necessary. Unit Appropriate for Collective Bargaining : all employees, excluding the fore- man. Mr. John A. Moore, of Marion, Ky., and Mr. J. M. Blayne'y, Jr., and Mr. Harold S. Cook, of St. Louis, Mo., for Patton. Mr. David Hvmter, of Marion, Ky., for the Union. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by District 50, United Mine Workers of America, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Shelley Patton,' Mexico, Kentucky, herein called Patton, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert D. Malarney, Trial Examiner. Said hear- ing was held at Marion, Kentucky, on October 7, 1942. Patton and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On October 22, 1942, Patton filed a brief, which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF PATTON Shelley Patton, an individual, is engaged in mining fluorspar ore at the Pigmy Mine, Mexico, Kentucky, under a subcontract with J. S. ' The petition and other formal papers were amended at the hearing to show the correct name of Patton 45 N L. R. B., No. 49. 315 L 316 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frazer, an individual doing business under the name of Frazer Min- ing Company.2 During the past year, Patton mined between 5000 and 7000 tons of ore and his gross receipts under his mining con-' tract with Frazer exceeded $25,000. Patton's ^ business is restricted to bringing ore from the mine to the earth's surface. The mined ore is then processed by Frazer in a mill at the mine. Pigmy Cor- poration,' the owner of the mine and the ore, sells the processed ore at Frazer's mill to Rosiclare Lead and Fluorspar Mining Company, its parent corporation, which, in turn, sells and dispatches the ore from the mill to its customers, practically all of whom are located outside Kentucky. We'find that Patton, contrary to his contention, is engaged in commerce within the meaning of the National Labor Relations Act.8 H. THE ORGANIZATION INVOLVED District 50, United Mine Workers of America, is a labor organiza- tion, admitting to membership employees of Patton. III. THE QUESTION CONCERNING REPRESENTATION In July 1942 the Union sent an incorrectly addressed letter to Pat- ton, requesting recognition as bargaining agent of his employees. Receiving no answer, the Union's representative made several unsuc- cessful attempts to interview Patton. At the time of the hearing Patton had not recognized the Union as bargaining agent of his employees. A statement prepared, by the Trial Examiner and read into the record at the hearing indicates that the Union represents a substantial number of employees in the appropriate unit.4 We find that a question affecting commerce has arisen concerning the representation of employees of Patton, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. See Matter of J S Frazer, an individual doing business under the name of Frazer Mining Company, and District 50, United Mine Workers of America, 45 N. L. R. B. 318, decided this day. 8 Cf Fainblatt v. N. L. R B., 306 U. S. 601; rev'g 98 F. (2d) 615 (C. C. A. 3), setting aside Matter of Benjamin Fainblatt and Marjorie Fainblatt, Individuals, doing business under the firm names and styles of Somerville Manufacturing Company and Somerset Manufacturing Company and International Ladies' Garment Workers' Union, Local No. 149, 1 N. L. R. B 864; 4 N L. R. B. 598; Santa Cruz Fruit Packing Co. v. N. 'L R. B. 302 U. S. 453, aff'g 91 F (2d) 790 (C. C A. 9), enf'g as mod Matter of Santa Cruz Fruit Packing Company, a corporation and Weighers, Warehousemen and Cereal Workers, Local 38-44, International Longshoremen's Association, 1 N L. R. B. 454; Sunshine Mining Co. c. N. L. R. B., 110 F. (2d) 780 (C. C. A. 9), enforcing Matter of Sunhsine Mining Com- pany and International Union of Mine, Mill and Smelter Workers, 7 N. L. R. B. 1252; cert. denied 312 U S. 678. - 4 The Union submitted to the Trial Examiner 31 cards, 11 of which bear apparently genuine signatures of employees on Patton's pay roll of October 7, 1942. This pay roll, lists 17 employees in the appropriate unit. . SHELLEY PATTON IV. THE APPROPRIATE. UNIT 317 We find, in accordance with the agreement of the parties, that all employees of Patton , excluding Foreman Riley, constitute a unit appropriate for the purposes , of collective bargaining, within the meaning of Section 9 (b) of the Act. V.- THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate- unit who were employed during the pay-roll- period immediately preceding the date of the Direction of Election, subject to the limitations and additions set forth therein. - 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 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 of collective bargaining with Shelley Patton, Mexico, Kentucky, 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 Eleventh Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 10, of said Rules and Regulations, among all employees of Patton within the unit found' appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding employees who have since quit or been discharged, for cause, to determine whether or not they desire to be represented by District 50, United Mine Workers of America, for the purposes of collective bargaining. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.