Knife River Coal Mining Co.

KNIFE RIVER COAL MINING COMPANY and RICHARD P. LINK, PETITIONER and LOCAL #1101, PROGRESSIVE MINE WORKERS OF AMERICA. Case No. 18-RD-i9. September 6, 1951 Decision and Direction of Election Upon a decertification petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clarence A. Meter, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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-mem- ber panel [Members Houston, Murdock, and Styles]. 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 -Petitioner, an employee of the Employer, asserts that the Union is no longer the bargaining representative, as defined in Sec- tion 9 (a) of the Act, of the employees designated in the petition.' The Union is a labor organization recognized by the Employer as the exclusive bargaining representative of the employees of the Em- ployer designated in the petition. 3. The Employer and the Union assert that their current contract, which does not expire until March 31, 1952, is a bar to the instant petition. The Petitioner contends that the contract is not a bar because it contains an illegal union-security provision. Section (f) of the existing contract provides as follows : The Union agrees that it will accept as members therein all operating employees of the Company who are at present em- ployed and who come within the classifications of this agreement. Should any new employees desire not to become a member of the 1 The Union moved, at the hearing, to dismiss the petition on the ground that the Peti- tioner is "fronting" for the United Mine Workers of America, a labor organization not in compliance with the Act. In support of its allegation , the Union cites an earlier decertifi- cation proceeding before the Board, Knife River Coal Mining Company, 91 NLRB 176, in which the Board found that a different petitioner was, in fact , "fronting" for UMW and dismissed the petition . Unlike that case, however, the record here shows no evidence that the Petitioner is acting on behalf of any labor organization . While the Petitioner has been a member and attended meetings of UMW as well as of the Union , he testified without con- tradiction that he did not receive any financial assistance from any labor organization, that the expenses of this proceeding are being shared by the other employees , and that he is acting only in his individual capacity as an employee of the Employer . Accordingly, on the record now before us, we are not convinced that the Petitioner is acting as a "front" for a noncomplying union and we shall, therefore , deny the Union's motion to dismiss. Cf. The Consolidated Rendering Co., d/b /a Manchester Rendering Co., 91 NLRB 1257 ; Stand- ard Steel Spring Company, 91 NLRB 97. 96 NLRB No. 1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union on account of any scruples the employee may have, if such employee so authorizes, the Company agrees to check off for the Union each month an amount equal to that paid the Union by a regular member thereof, for the maintenance of the Union, -which for the term of this agreement, shall be $1.00 per month and the Union shall in consideration thereof furnish such employee with up-to-date working credentials. The Union further agrees to accept as members thereof, or as specified above, all new per- manent employees of the Company. Temporary employees, em- ployed for less than thirty (30) days and present employees who are not on March 31, 1947, members of the Union shall not be required to share in the cost of maintaining or operating the Union or to become members thereof. [Emphasis supplied.] The above clause, in our opinion, is ambiguous. It may be noted that the last sentence provides that certain categories of employees, namely temporary employees and present employees who were not union members on March 31, 1947, "shall not be required" to join the Union or share in its operating and maintenance costs. This would appear to import that employees in other categories might well be re- quired to fulfill such conditions. Moreover, 'the clause provides for the Union, in certain instances, supplying "working credentials" to employees. In view of the ambiguities in the contract, we find it neces- sary to look at the practice of the parties in order to determine their intent. 2 The Employer's mine superintendent testified without contradiction that the Union was given 30 days to object to any employee, and the record shows that all employees were required to execute union check- off cards as a condition to their continued employment. In view of the foregoing, and upon the entire record in this case, we are persuaded that the parties intended and executed a contract which conditioned employment on union membership. The Union has not been author- ized to execute a union-security contract. As the Union has not been authorized in an election under Section 9 (e) to execute a union-security provision, the contract cannot operate as a bar. 3 We find that a question affecting commerce exists concerning the, representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : "The parties agree generally that all production and maintenance employees at the Employer's Beulah, North Dakota, operation consti- 2 Tom A. Newton, d/b/a Newton Investigation Bureau, 93 NLRB 1574 ; N. L. R. B. v. Scientific Nutrition Corporation, 180 F. 2d 447 (C. A. 9). 8 Memphis Cold Storage Warehouse Company, 91 NLRB 1404 ; Westport Moving and Storage Company, Crate Making Division, 01 NLRB 902. WILKENING MANUFACTURING COMPANY 3 tute an appropriate unit. They are in disagreement, however, as to whether the fire watchman and two underground watchmen should be excluded as guards. The fire watchman is employed above ground protecting the mining property and equipment against fire, theft, and sabotage. He works from approximately 7 p. m. to 3 a. m., when the mine is closed. He is required to punch a watch-clock system periodically when making his rounds. As the fire watchman spends all his time in the performance of guard duties, we shall exclude him from the unit. 4 The two underground watchmen work underground while the mine is not operating. Approximately 50 percent of their time is devoted to checking seals which prevent the spread of underground fires. The remainder of their time is spent in checking the circuit breakers in the generator house and the operation of the pumps. As these employees do not spend any of their time in the performance of guard duties, we find they are not guards within the meaning of Section 9 (b) (3) of the act and shall include them in the unit.' We find that all production and maintenance employees at the Em- ployer's Beulah, North Dakota, operations, including the underground watchmen, but excluding the fire watchman and all other guards, of- fice and clerical employees, professional employees, and 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. [Text of Direction of Election omitted from publication in this volume.] 4 Memphis Cold Storage Warehouse Company, supra. 3 Georgia Fertilizer Company, 83 NLRB 180. WILKENING MANUFACTURING COMPANY and LOCAL 416, UNITED AUTO- MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER. Case No. 4-RC-994. September 6, 1951 Second Supplemental Decision and Certification of Representatives On April 27, 1951, pursuant to a Decision and Direction of Election issued by the Board on March 29,1951,E an election by secret ballot was conducted under the direction and supervision of the Regional Di- rector for the Fourth Region, among the employees of the Employer in the unit found appropriate in the decision. The tally of ballots 193 NLRB 1672. 96 NLRB No. 4.