Ford Collieries Co.

In the Matter of FORD COLLIERIES COMPANY and LOCAL UNION No. 50, UNITED CLERICAL, TECHNICAL AND SUPERViso1Y EMPLOYEES UNION OF THE MINING INDUSTRY, DIVISION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. 6-R-1213 SUPPLEMENTAL DECISION AND ORDER April 15,1947 On August 28, 1946, the National Labor Relations Board issued a Decision and Direction of Election 1 in the above-entitled proceeding finding, inter alia, that the supervisors involved were "employees" of the Ford Collieries Company for the purposes of the National Labor Relations Act although the mines were being operated by the United States Government pursuant to Executive Order 9728,2 issued in part under the authority of the War Labor Disputes Act.3 On October 15, 1946, following an election which was won by the Petitioner, the Board certified the Petitioner as the collective bargaining representative of the employees in the appropriate unit. On March 19, 1947, the Em- ployer filed a motion requesting the Board to withdraw its certification and to dismiss the petition on the ground that the Supreme Court in the recent Lewis case 4 has held that employees of mines seized by the Government under the authority of the War Labor Disputes Act are employees of the Government and that, therefore, the Board is with- out jurisdiction to entertain any petition involving such employees or to issue its certification. The Employer also requested oral argument. Subsequently, however, it waived such oral argument and submitted a memorandum of law in lieu thereof. In the West Kentucky Coal Company case,-' the Circuit Court of Appeals for the Sixth Circuit, discussing an earlier governmental seizure of mine properties under conditions substantially identical with those present in the instant case, stated (152 F. 2d at p. 200) : "We con- 1 70 N. L R B 842 211 F R 5593 3 57 Stat 163, 50 U. S. C App , Sees. 1501, et seq 4 United States v. United Mine Workers of America, 67 S Ct 677. s N L R. B v. West Kentucky Coal Co , 152 F (2d) 198 (C C A 6). 73 N. L. R. B., No. 77. 400 FORD COLLIERIES COMPANY 401 elude that the Congress intended that the employees of plants seized by the Government under the War Labor Disputes Act should continue to enjoy the rights theretofore secured to them under the National Labor Relations Act, including that of collective bargaining, and that the orders and regulations issued in conformity to the statute carry out the same intention. The Board, therefore, was authorized to proceed with the representation case, regardless of the seizure of the mines." The court thereupon enforced the Board's order 6 directing the coal company to bargain collectively with the United Mine Workers.7 This is, of course, equivalent to a holding that during the period of govern- mental operation the mine workers remain for the purposes of the Act employees of the private mine owner. The Supreme Court denied certiorari.8 The Employer argues that the decision in the West Kentucky Coal Company case is in direct conflict with the Supreme Court's subse- quent decision in the Lewis case and therefore has been overruled by the latter .9 We do not believe that there is such a conflict between the two decisions. It is true that the Supreme Court stated in the Lewis case: "We hold that in a case such as this, where the Government has seized actual possession of the mines, or other facilities, and is operating them, and the relationship between the Government and the workers is that of employer and employee, the Norris-La Guardia Act does not apply." 10 The Supreme Court's holding cannot, however, be con- sidered in vacuo. The Court in reaching the above conclusion was giving answer to a specific question which Mr. Chief Justice Vinson, speaking for the Court, framed as follows: "The question with which we are confronted is not whether the workers in mines under Govern- ment seizure are `employees' of the Federal Government for every purpose which might be conceived, but whether, for the purposes of this case, the incidents of the relationship existing between the Gov- ernment and the workers are those of governmental employer and employee." [Italics supplied.] Thus, the Supreme Court did not foreclose the possibility that for purposes other than the Norris-La Guardia Act, the workers in mines 0 57 N. L R B. 89 See also Glen Alden Coal Company v N L. R. B. , 141 F. ( 2d) 47 ( C C. A. 3) ; Matter of Jones d Laughlin Steel Corporation , 71 N. L It. B. 1261. 8 328 U. S. 66 ° In its decision in the Lewis case, the Supreme Court did not discuss the West Kentucky Coal Company decision. 10 Cf. the concurring opinion of Mr. Justice Frankfurter ( 67 S. Ct at p. 709) where he said . It can hardly be denied that the relation of the miners to the United States is a hybrid one Clearly , they have a relation to the Government other than that of employees of plants not under Government operation Equally clearly , they have a relation and a status different from the relation and status of the clerks at the Treasury Department " Cf. also the dissenting opinion of Mr Justice Murphy ( 67 S Ct. at p 717) in which he stated that "the miners remained private employees despite the temporary gloss of Gov- ernment possession and operation of the mines . . . 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seized by the Government might not be its employees. In our opinion, the West Kentucky Coal Company decision is not inconsistent with the Lewis decision and the latter does not impliedly overrule the former. To hold that, notwithstanding the Government's temporary seizure of the mines, the mine workers continue to be employees of the private mine owner for the purposes of the National Labor Relations Act and entitled to its benefits is wholly in conformance with the scheme and purpose of the War Labor Disputes Act. The latter Act obviously contemplates continued representation by labor organizations of em- ployees in seized properties. So Section 5 provides that either the Government agency operating the seized property or "a majority of the employees of such plant, mine or facility or their representatives, may apply to the National War Labor Board for a change in wages or other terms or conditions of employment." The term "representa- tives" is used as defined in the National Labor Relations Act,11 that is, it includes "any individual or labor organization." It would be illogi- cal to assume that Congress intended collective bargaining to continue in seized properties, but at the same time rendered unavailable the only peaceful procedures existing for the ascertainment of the employees' choice of a collective bargaining representative. There is nothing in the War Labor Disputes Act which indicates that Congress had such an intention. In fact, the debates in Congress which preceded the passage of the War Labor Disputes Act indicate the contrary.12 The President has also construed the War Labor Disputes Act as not abrogating the rights of employees under the National Labor Relations Act. Thus, Section 3 of Executive Order 9728, authorizes the Secretary of the Interior "pursuant to the provisions of Section 5 of the War Labor Disputes Act, following such negotiations as he may deem necessary with the duly constituted representatives of the em- ployees, to apply to the National Wage Stabilization Board for ap- propriate changes in the terms and conditions of employment for the period of the operation of the mines by the Government." And Section 7 of the same order directs the Secretary of the Interior to "recognize the right of the workers to continue their membership in any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection " The Secretary of the Interior has incorporated a similar under- standing into his "Regulations for the Operation of Coal Mines under 11 War Labor Disputes Act, Section 2 (d). 8 In Hamilton v. N. L R. B., 160 F. (2d) 465 (C C A 6), the court stated. The War Labor Disputes Act is limited to war production and is not an attempt to amend or modify the National Labor Relations Act. Its legislative history shows that it was not intended to curtail in any way the rights and protection accorded employees under the National Labor Relations Act FORD COLLIERIES COMPANY 403 Government Control." Section 24 of these Regulations provides : "The mining companies, their personnel and their property are deemed to remain subject during the period of Government control to all Federal and State Laws and to actions, orders, and proceedings of all Federal and State courts and administrative agencies." 13 The foregoing in- dicates, we believe, a common understanding that in passing the War Labor Distputes Act Congress intended that employees of companies temporarily seized by the Government should continue to enjoy the rights which they had theretofore had under the National Labor Rela- tions Act. To accomplish this objective, Congress must necessarily have intended that for the purposes of the Labor Act, the owners of seized property continue to be employers of the workers in such plants. The Employer further argues that by taking possession of its mines the Government has superseded private management in setting the terms and conditions of employment and has, thereby, removed the basis for effective collective bargaining under the National Labor Relations Act. The answer to this objection is two-fold. In the first place, the present proceeding is preliminary and not adversary .4 The certification is not an order.- It does not command the Em- ployer to do anything. It is only the certification of a fact.ls In the second place, there remains a legitimate area for collective bargaining between the Employer and the Petitioner although the Government is in possession of the Employer's mines and has superseded the Em- ployer temporarily in setting the terms and conditions of employment for the mine workers. It is well known that the ultimate cause of the Government's seizure of the Nation's soft coal mines was the inability of the coal operators and the United Mine Workers to agree on the terms of a collective bargaining agreement and that the Government has retained possession for the same reason. The Government as- sumed and has retained possession of the mines reluctantly. It has no interest in placing obstacles in the way of collective bargaining be- tween the private parties. Nor has it sought to do so. On the con- trary, it has sought to encourage such bargaining so that it may re- linquish a task which has become exceedingly burdensome. If the coal operators and the labor organizations representing the miners are able to agree on the terms of a collective bargaining agreement, that will undoubtedly hasten the return of the mines to the private owners. In any event the Government's possession of the mines is nearing its 118 F. R 6657. These Regulations were first issued in 1943 at the time of an earlier mine seizure They were expressly made applicable to the present period of Government operation 11 F R 5603 14 N L R B. v West Kentucky Coal Co , 152 F (2c1) 198, 200 (C C A 6). 'IN. L R B v West Kentucky Coal Co , supra, United Employees Assn. v. N L R. B., 96 F (2d) 875, 876 (C C A 6) , American Federation of Labor v. N L. R. B , 103 F. (2d) 933, 936 (App D. C ). ii United Employees Assn v N L R B , supra 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD end. The mines must be returned to the private operators not later than June 30, 1947.17 The determination of terms and conditions of employment to obtain in the mines when the Employer resumes pos- session thus furnishes real scope for genuine collective bargaining be- tween the Employer and the Petitioner at the present time. Under all the circumstances, we find that, for the purposes of the National Labor Relations Act, Ford Collieries Company is an "em- ployer" of the mine employees and that the Board has jurisdiction of this proceeding.18 Accordingly, we shall deny the Employer's motion to withdraw the certification previously issued and to dismiss the petition. ORDER IT IS HEREBY ORDERED that the Employer's motion to withdraw the certification issued in this case and to dismiss the petition, be, and the same hereby is, denied. DIR. JAMES J. REYNOLDS, Jr., took no part in the consideration of the above Supplemental Decision and Order. 17 Section 3 of the war Labor Disputes Act provides that the Government 's authority to operate seized property terminates 6 months after the President proclaims the termination of hostilities. On December 81, 1946, the President proclaimed the termination of hostil- ities. 12 F. R. 1. - 38 Matter of Ford Collieries Company, 70 N. L. R. B 842 ; Matter of Jones & Laughlin Steel Corporation, 71 N. L. R. B. 1261.