Pocahontas Fuel Co., Inc.

In the-Hatter Of POCAHONTAS FUEL COMPANY, INCORPORATED and UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MINE WORKERS OF AMERICA Case No. 9-R-1550.-Decided January 15, 1945 Senator Edward R. Burke, of Washington, D. C., and Mr. Albert S. Kemper, Jr., of Bluefield, W. Va., for the Company and the S. C. P. A. Mr. Luke Brett, of Beckley, W. Va., for the Union. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Construction Workers, affiliated with United Mine Workers of America, herein called the Union, alleg- ing that a question affecting commerce had arisen concerning the rep- resentation of employees of Pocahontas Fuel Company, Incorporated, Pocahontas, Virginia, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Louis S. Penfield, Trial Examiner. Said hearing was held at Bluefield, West Virginia, on October 3, 1944. The Company, the Union, and Southern Coal Producers Association, herein called the S. C. P. A., appeared, participated, and were afforded full oppor- tunity to be heard, to examine, and cross-examine witnesses, and to introduce evidence bearing on the issues The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The S. C. P. A. requested opportunity for oral argument, and the Board granted the request.2 On November 21, 1944, a hearing was ' In accordance with the stipulation of the parties , the evidence adduced at the October 3, 1944, hearing in Matter of Lllybrook Coal Company, 60'N L. R. B. 31, Case No. 9-R- 1497 , is incorporated into, and hereby made part of, the official record in the instant proceeding. 2 For the purposes of oral argument , Matter of Llllybrook Coal Company, supra, was consolidated with the instant case 60 N. L. It. B., No. 7. 41 42 DECISIONS OF NATIO1N AL LABOR RELATIONS BOARD held before the Board at Washington, D. C., for the purposes of oral argument. The S. C. P. A., the Company, and the Union appeared and participated. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Pocahontas Fuel Company, Incorporated, has its principal office at Pocahontas, Virginia. It is principally engaged in the operation of 12 coal mines, 3 of which are located in Virginia and 9 in West Vir- ginia. During the first 6 months of 1944, the Company produced from its mines 51/2 million tons of coal, of which more than 90 percent in tonnage was sold and delivered to points outside the State in which it was produced. The Company's merchandising operations include the management and conduct of 14 stores, of which 3 are in Virginia and 11 in West Virginia; 7 community buildings, including 1 in Vir- ginia and 6 in West Virginia; and a funeral hbme in Virgina. Em- ployees involved in the operation of these properties, numbering ap- proximately 240, are the employees chiefly concerned in this pro- ceeding. During the first 6 months of 1944, the Company's gross sales of merchandise and services through these stores and other facilities, amounted to approximately 21/2 million dollars. During the same period, the - Company's purchases of merchandise for such use amounted to approximately 2 million dollars. Approximately two- thirds of these materials is shipped to the Company's stores from points outside the State. The Company maintains a central ware- house at Pocahontas, to which delivery of part of these shipments is made. Other shipments are made directly to the store, where the material is to be resold. The Company's stores and community houses are located on company property. The funeral home is on rented property. Stores are located adjacent to the dwelling places of miners working in the several mines operated by the Company, and approxi- mately 70 percent of all sales of merchandise made and services ren- dered through the Company's stores, filling stations, community houses, and funeral home is to these employees.. Employees may purchase by cash or through the use of scrip, but the greatest per- centage of sales is on open charge accounts. We find, contrary to the contention of the Company, that the Com- pany's merchandising operations are a part of its entire integrated business enterprise and that, in the operation of its stores and other POCAHONTAS FUEL COMPANY, INCORPORATED 43 facilities, the Company is engaged in commerce, within the meaning of the National Labor Relations Act.3 II. THE ORGANIZATION INVOLVED United Construction Workers is a labor organization affiliated" with United Mine Workers of America, admitting to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about July 26, 1944, the Union asked the Company for recog- nition as exclusive bargaining representative of the Company's store employees. The Company refused recognition, contending that the unit sought by the Union was not'aff'appropriate bargaining unit. The Company is a member of Pocahontas 'Operators' Association and, as such, a member of Southern Coal Producers Association, the intervenor herein, and a. party to an agreement between these organiza- tions and United Mine Workers of America, District 29, and the Inter- national Union, herein collectively called the U. M. W., covering mining employees of their several operator members. The contract contains a recognition clause of the U. M. W. as bargaining repre- sentative for employees of the mine operators, and a subsequent pro- vision, that covered thereunder are "mine workers," a term defined as excluding "mine foremen, assistant mine foremen, fire bosses, or bosses in charge of any classes of labor inside or outside of the mine, or coal inspectors or weigh bosses, watchmen, clerks, or members of the execu- tive, supervisory, sales, and technical forces" of the several mine oper- ators. The Company takes the position that the U. M. W. is the bar- gaining representative of store clerks ; that the U. M. W. has expressly contracted not to bargain for such employees during the term of the contract, which extends to March 21, 1945; and that the contract, there- fore, operates as a bar to their representation by any other labor or- ganization during this period. For reasons which we have set forth in our decision in Matter of Lillybrook Coal Company, supra, we find no merit in this contention. A statement of a Field Examiner, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate 4 8 The S. C P. A. and the Company in the instant case agree that the relationship of stores and mines operated by the Company is the same as that of the stores and mines operated by Lillybrook Coal Company and that the jurisdictional issue raised herein is essentially the same issue raised in Matter of Lillpbrook Coal Company, supra. 'The Union submitted 134 cards, of which 61 bear dates prior to May 1944 and the remaining, dates subsequent thereto. There are approximately 210 employees in the appropriate unit. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Union contends that all employees of the Company,employed at the Company's stores, filling stations, community buildings, and fu- neral home, excluding office clerical employees, store managers, as- sistant store managers, and other supervisory employees, constitute an appropriate bargaining unit. The Company and the S. C. P. A. contend that the unit appropriate for employees at its stores should not be limited to employees of the Company, but should include store employees of coal mining operators on a multiple-employer basis, analogous to the broad unit covering mining employees of these coal operators, indicated above. The Union has not yet extended its or- ganization among store employees of coal operators in any operating district or area commensurate with an existing employer association. For reasons which we have set forth in Hatter of Lillybrook Coal Com,- pany, supra, we find that a unit limited to employees of the Company is an appropriate bargaining unit at this time. Such finding will not preclude the determination of a multiple-employer unit for employees of the Company and other coal operators on m district- or area-wide basis, upon the filing of a later appropriate petition covering such employees. As noted above, in addition to its 14 stores, the Company operates 4 filling stations, and 7 community buildings, variously located in its entire mining area, and 1 funeral home located at Pocahontas, Vir- ginia. At its stores, the Company sells general merchandise and at its filling stations, which are operated in connection with its st-ores, the usual petroleum products. At its community houses, the Company, operates pool tables and sells beer and soft drinks, and, particularly after regular store hours, some general merchandise. The Company and the S. C. P. A. question whether employees serving at the funeral home and at the community houses should be grouped in the same bargaining unit with store clerks and filling station employees. The funeral home operates in conjunction with the Company's largest store at Pocahontas. The 2 employees working in the funeral home spend part of their working time at the funeral home and the remain- ing portion of their time at the store. The community houses, to a considerable extent, supplement the services rendered at the store after regular store hours. The stores, the funeral home, the filling stations, and the community houses are all under the direct super- vision of the Company's stores manager and are operated as a single administrative department of the Company. Since employees en- POCAHONTAS FJJEL COMPANY, INCORPORATED 45 gaged in the proposed unit constitute a single operating department of the Company and a homogeneous group, we see no reason to pre- clude their inclusion in the same bargaining unit. Each store has its manager, and the larger stores an assistant manager, under whom are from 5 to 25 employees. We shall exclude from the unit office clerical employees, store managers, assistant store managers, and other supervisory employees. We shall include departmental heads, who have some direction over the disposition of merchandise in their several departments, but are not supervisory employees. We find that all employees at the Company's stores, filling stations, community houses, and funeral home, excluding office clerical em- ployees, store managers, assistant store managers, and all other super- visory employees with. authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effectively recommend such action, 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 the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Decision and 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 power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Pocahontas Fuel Company, Incorporated, Pocahontas, Virginia, 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 Ninth Region, acting in this matter as agent for.the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regula- tions, among the employees in 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 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 and have not'been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by United Construction Workers, affiliated with United Mine Workers of America, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting: The parties stipulated that the evidence adduced in'the hearing of Hatter of Lillybrook Coal Company, 60 N. L. R. B. 31, Case No. 9-R-1497, should be made a part of the official record, in the instant proceeding, and subsequently the two cases were consolidated together for the purposes of oral argument. My observations in the companion case are equally applicable here.