Coal Creek Coal Co.

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the truck drivers and receiving clerk at the Em- ployer's Dallas, Pennsylvania, plant, excluding packers, stores clerk, and all other employees, guards, 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.] COAL CREEK COAL COMPANY and JOSEPH GRANT, FRANK BLATNICK, BEE BLY, WILLARD HUGHES, ARNIE ADAIR, RAWLINS THACKER, ALFRED POWELL, ROBERT VAN WAGONER, JOHN HIMMELBERGER, MAURICE FORBUSH, ELMER LE MARR, FLOYD GOLDING. Case No. 20-CA-485. November 19, 1951 Decision and Order On May 7, 1951, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1), (2), and (3) of the Labor Management Relations Act, as amended, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain unfair labor practices in violation of Section 8 (a) (3) of the Act and consequently recommended dismissal of the allegation of the complaint alleging the discriminatory discharge of Joseph Grant.' Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed exceptions with respect to certain back-pay recommendations in the Intermediate Report, and a supporting brief. The Respondent has requested oral argument. This request is denied inasmuch as the record and briefs, in our opinion, adequately present the issues and the positions of the parties. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications.2 1 Because no exception has been filed to the ruling of the Trial Examiner recommending dismissal of the 8 (a) (3) allegation as to Joseph Grant, we do not pass upon the merit ,of that ruling. 2 We make the following correction of minor misstatements of fact appearing in the Intermediate Report which do not affect the ultimate conclusions At page 6: Robert Van Wagoner testified that Campbell , on Saturday, requested the employees to come to the mine Sunday night, before the Board election on Monday, and that some of the employees , including himself, did so. .97 NLRB No. 3. COAL CREEK COAL COMPANY 15 1. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act by certain conduct engaged in by P. M. Campbell, the superintendent of the Respondent's mine, and by Grant Powell, the husband of the Respondent's principal stockholder and the actual operating head of the Respondent, as set forth in the Inter- mediate Report. However, we do not rely i pon Powell's requirement of March 6, 1950, that employees who had voted for the United Mine Workers in the election held that day under auspices of the State Industrial Commission, strike their names from the stock purchase agreement, because this occurrence antedated by more than 6 months the filing and service of charges in this case. See Section 10 (b) of the Act. 2. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (2) and (1) of the Act in that it formed, dominated, and interfered with the administration of the Independent Union, and contributed financial and other support to it, as set out in the Intermediate Report .3 3. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (3) of the Act in that it discriminatorily laid off Floyd Golding on March 23, 1950, and thereafter refused to reinstate him, because of his membership in and activity on behalf of the United Mine Workers.4 We find no merit in the Respondent's exception on the ground that it lacked knowledge of Golding's union activities. Among the evidence touching upon this point we note the uncontra- dicted testimony of employees Himmelberger and Robert Van Wag- oner that Golding responded immediately to Powell's request on Footnote 2-Continued At page 7: The completed collective bargaining agreement between the Respondent and the Independent bore the date July 1, 1950; the record does not show the exact date of its execution ; a rough draft contemplating a completed agreement was signed on July 29, 1950-the date referred to by the Trial Examiner. Footnote 15: Subsections (2) and ( 3) of this footnote are not entirely accurate as the record lacks specific evidence that any resentment of employee Magnum by Powell, or - of employee Garcia by Campbell , affected their membership in the Independent At page 9: The reference to Golding 's work assignment on March 13 should be merely that he was assigned to his usual job of dumping coal cars. Golding was elected recording secretary at the UMW meeting held the night of March 21, not 22. At page 11 : Robert Garcia and-Robert Williams were discharged on the night shift on September 18, not 19 , by Foreman Eusel on orders of Campbell , rather than by Campbell Powell discharged Campbell and Grant on September 19, not 20 ' We find no merit in the assertion that the Respondent corporation , not having come into existence until some weeks after the formation of the Independent Union, cannot he found to have violated Section 8 (a) (2) of the Act The record is replete with evidence that effectual control and management of the mine was unaffected by the mere change to incorporation as a method of doing business or by the short -lived lease to Campbell which preceded the incorporation . Southport Petroleum Co. v. N L. R B, 315 U S 100; see also Alexander Milburn Company, 78 NLRB 747. ' Clearly the record does not support the Respondent's contention that Golding , in filing his own 8 (a) (3) charge of discrimination , was acting as a "front" for the UMW. See N. L. R B v. Augusta Chemical Co., 187 F 2d 63 (C. A. 5). 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 6,1950,6 that the employees who had voted for the UMW in the State-conducted election strike their names from the stock purchase agreement. Nor do we find merit in the Respondent's contention that Golding's somewhat exuberant conduct on the picket line after his discriminatory layoff-in causing coal to be spilled from one of Respondent's trucks-was, so serious as to render him unsuited for reemployment by the Respondent. 4. We also agree with the Trial Examiner that the Respondent violated Section 8 (a) (3) and (1) of the Act by discriminatorily dis- charging Frank Blatnick, Bee Bly, Willard Hughes, Arnie Adair, Rawlins Thacker, Alfred Powell, Robert Van Wagoner, John Himmel- berger, Maurice Forbush, and Elmer LeMarr on September 21, 1950, because they had signed and presented the petition to dissolve the Independent Union the day before. However, we do not adopt that portion of the Trial Examiner's findings to the effect that the employ- ees' strike in protest against the discharges of superintendent Camp- bell and employee Grant was also a cause of their discharges. Con- trary to the Respondent's contention, the credible evidence-as referred to by the Trial Examiner-clearly indicates that Powell assigned as his reason for the discharges the employees' attempt to dissolve the Independent Union. We therefore find that the Re- spondent, upon the occasion when the striking employees returned in a body offering to return to work conditionally, discharged them forthwith because of Powell's own pro-Independent, anti-UMW motives. Inasmuch as the Respondent chose to discharge these strikers, who were still its employees, for a discriminatory reason unrelated to the strike and its objective, we need not and do not pass upon the question whether the discharges would have violated the Act if they had, in fact, been directed against the strike activity here involved.6 The Remedy The General Counsel, urging that an offer by the strikers to return to work after their discharge would have been futile, excepted to the recommendation of the Trial Examiner that the 10 striking employees discharged on September 21, 1950, be awarded back pay from such date-subsequent to their discharge-on which they make, or have made, an unconditional offer to return to work, to the date on which the Respondent offers, or has offered, reinstatement to them. In ac- cordance with our customary ruling, however, we agree with the Trial Examiner that an unconditional request to return to work or some ° Robert Van Wagoner, in his testimony , placed this as March 7, 1950. ° See Wallick and Schwalm Company, 95 NLRB 1262. COAL CREEK COAL COMPANY 17 other evidence that the strike has been abandoned is necessary to start the accumulation of back pay to discharged strikers 7 Order Upon the basis of the above findings of fact and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Coal Creek Coal Company, Wellington, Utah, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Inde- pendent Union of Coal Creek Coal Company, or with the formation and administration of any other labor organization, or contributing financial or other support to the Independent Union of Coal Creek Coal Company or any other labor organization. (b) Recognizing Independent Union of Coal Creek Coal Company, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the Respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment. (c) Giving effect to any and all contracts, supplements thereto, or modifications thereof with Independent Union of Coal Creek Coal Company. (d) Discouraging membership in any labor organization of its em- ployees, by discharging or refusing to reinstate any of its employees because of their union membership or activity, or in any other man- ner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. (e) Promising benefit or threatening reprisal in order to influence its employees' choice of a bargaining representative, or in any other manner interfering with, restraining, jr coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a)' (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : i Happ Brothers Company, Inc., 90 NLRB 1513, 1518; Alside, Inc., 88 NLRB 460; Globe Wireless, Ltd., 88 NLRB 1262, 1268. 18 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD (a) Withdraw and withhold all recognition from, and completely disestablish, the Independent Union of Coal Creek Coal Company as the representative 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., (b) Offer to Frank Blatnick, Bee Bly, Willard Hughes, Arnie Adair, Rawlins Thacker, Alfred Powell, Robert Van Wagoner, John Himmelberger, Maurice Forbush, Elmer LeMarr, and Floyd Gold- ing, unless they have already been reinstated, immediate and full reinstatement to their former or substantially equivalent positions. and make them whole for any loss of wages suffered as a result of the discrimination against them in the manner described in "The remedy" section of the Intermediate Report. (c) Post immediately in its mine and in its offices in Wellington, Utah, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Re- spondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twentieth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminatorily discharged Joe Grant-referred to by the Trial Examiner as Joseph Grant-in violation of Section 8 (a) (3) of the Act, be, and it hereby is, dismissed. MEMBER REYNOLDS took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : COAL CREEK COAL COMPANY 19 WE HEREBY DISESTABLISH INDEPENDENT UNION OF COAL CREEK COAL COMPANY as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment, and we will not recognize it or any suc- cessor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or ad- ministration of any labor organization or contribute financial or other support to it. WE WILL NOT give effect to any and all agreements and con- tracts, supplements thereto or modifications thereof, or any super- seding contract with INDEPENDENT UNION OF COAL CREEK COAL. COMPANY, or any successor thereto. WE WILL NOT promise benefit or threaten reprisal in order to influence our employees in their choice of bargaining representa- tives, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist 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, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL OFFER to the employees named below immediate and full reinstatement, unless they have already been offered reinstate- ment, to their former or substantially equivalent positions with- out prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any less of pay suffered as a result of the discrimination against them, in the manner set forth in "The remedy" section of the Intermediate Report : Bee Bly Alfred Powell Willard Hughes Robert Van Wagoner Arnie Adair John Himmelberger Rawlins Thacker Maurice Forbush Elmer LeMarr Frank Blatnick Floyd Golding All our employees are free to become or remain members of any labor organization except to the extent that this right may 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee - because of membership in or activity on behalf of any labor organization. COAL CREEK COAL COMPANY, Employer. By -------------------------------- (Representative ) ( Title) Date -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE On amended charges duly filed by and on behalf of Joseph Grant,' Frank Blat- nick, Bee 131y, Willard Hughes, Arnie Adair,' Rawlins Thacker,' Alfred Powell, Robert Van Wagoner,' John Himmelberger, Maurice Forbush,` Elmer Le Marr,' and Floyd Golding, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Twentieth Region (San Francisco, California), issued his com- plaint on December 4, 1950, against Coal Creek Coal Company, Wellington, Utah, 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 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the amended charges, together with notice of hearing thereon, were duly served upon the Respondent and upon each of the 12 individual complainants. No notice of hearing was served upon the Inde- pendent Union of the Coal Creek Coal Company, herein called the Independent, the labor organization alleged in the complaint to be existing in violation of the Act, and which is a party to a certain collective bargaining contract with the Respondent, nor was the Independent made a party to the proceedings. Sub- sequent to the close of the hearing, however, a stipulation, dated April 9, 1951, was entered into by the General Counsel and by counsel for the Respondent, for the Independent, and for Floyd Golding reading, in part, as follows : 1. That the Independent Union of the Coal Creek Coal ,Company, herein- after called the Independent, had actual notice of the hearing conducted in the above-entitled proceeding before Trial Examiner Howard Myers at Provo, Utah, on January 16, 17, 18, 19 and 20, 1951, and that a representative of said Independent was present in the hearing room while said hearing was in session ; - I Also referred to in the record as Joe Grant. 2 Also referred to in the record as Arnie Adair. 2 Also referred to in the record as Rollie Thacker. ' Also referred to in the record as Bob Van Wagoner. Also referred to in the record as Morris Forbush, Also referred to in the record as Elmer Le Mar. COAL CREEK COAL COMPANY 21 2. That said Independent be made a party to the above-entitled proceed- ing in the same manner and to same extent that it might have been had it been served with the Notice of Hearing and other formal papers prior to the hearing; 3. That service of such Notice of Hearing and other formal papers and any rights which said Independent may have had to intervene or otherwise participate, in any manner whatsoever, in said hearing are hereby ex- pressly waived ; 4. That this Stipulation may be incorporated in and made a part of the record in the above-entitled proceeding:` With respect to the unfair labor practices, the complaint alleged, in sub- stance, that the Respondent (1) discharged Floyd Golding on or about March 22, 1950, and thereafter refused to reinstate him, because of his membership in, and concerted activities on behalf of, the United Mine Workers of America, herein called UMW ; (2) on or about April 3, 1950, initiated, formed, sponsored, and promoted the Independent and since that date has assisted, dominated, supported, and interfered with its administration; (3) since on or about March 21, 1950, the Respondent (a) urged and requested its employees to vote for the Independent in a certain Board-conducted election, (b) promised various benefits to its employees if they would vote for the Independent in the said election, and (c) executed and maintained with the Independent a collective bargaining agreement containing, among other provisions, an illegal union-shop clause; and (4) on certain stated dates discharged 11 named persons and there- after has refused to reinstate them, or any of them, because they had engaged in certain concerted activities for the purpose of collective bargaining or other mutual aid or protection. On December 11, 1950, the Respondent duly filed an answer, admitting certain factual allegations of the complaint with respect to its corporate structure and operations, but denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held on January 12, 1951, at Salt Lake City, Utah, and from January 16 to January 20, 1951, inclusive, at Provo, Utah, before the undersigned, Howard Myers, the duly designated Trial Examiner. The General Counsel, the Respondent, and complainant Floyd Golding were repre- sented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. At the conclusion of the taking of the evidence, the General Counsel moved to conform the pleadings to the proof with respect to minor variances, but not to include any new unfair labor practices nor any new defenses. The motion was granted without objection. Respondent's counsel then moved to dismiss the complaint for lack of proof. The decision thereon was reserved. The motion is hereby denied. The parties waived oral argument. The parties were then advised that they might file briefs and proposed findings of fact and conclusions of law with the undersigned on or before February 4, 1951. A brief has been received from the Respondent's counsel which has been carefully considered by the undersigned. 'Counsel for the Respondent appended to the above stipulation the following: "Coal Creek Coal Company stipulates as to paragraph 2 and 4 of foregoing and neither denies or affirms paragraphs 1 and 3." 986209-52-vol. 97-3 22 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD On the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Coal Creek Coal Company, a Utah corporation, has its principal place of business at Wellington, Utah, and owns and operates a coal mine located some 14 miles therefrom. During the period from April 1, 1949, to April 1, 1950, the Respondent purchased equipment and supplies aggregating approximately $106,000 of which amount $56,000 were received from points located outside the State of Utah. During 1949, the Respondent mined, sold, and shipped coal valued at approximately $150,000, 95 percent of which was sold and shipped to places located outside the State of Utah. The Respondent concedes, and the undersigned finds, that during all times material herein, it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED United Mine .Workers of America, herein called UMW, and Independent Union of the Coal Creek Coal Company are labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES Domination of, Interference with, and Support of the Independent ; Interference, Restraint, and Coercion 8 A. Formation and history of the Independent For several months immediately prior to February 1950,9 various coal mines in and around Carbon County, Utah, the situs of the Respondent's mine, had certain difficulties with UMW, thereby forcing those mines to operate on a part- time basis during that period. In the latter part of February, the UMW placed a picket line around or near the mine located almost adjacent to the Respondent's. The picket line was so placed that the Respondent's employees were obliged to cross it going to and leaving work. The Respondent's employees crossed the picket lines for several days and continued to work. When it became evident that the pickets resented the refusal of the Respondent's employees to honor the picket line and the activities of the pickets became "too rough," the Respondent closed its mine. The evening that the mine closed, Grant Powell, the husband of its principal stockholder and the actual operating head of the Respondent, assembled all the employees and, according to the credited and uncontradicted testimony of employee John Himmelberger, told the employees the contractual demands which the UMW made upon the Respondent were such that the Respondent 8 The undersigned makes no finding of unfair labor practices antedating by more than 6 months the filing of the first charge herein by Maurice D. Forbush on September 27, 1950, alleging, among other things, a violation of Section 8 (a) (2) of the Act . The under- signed, however , regards the events antedating the aforesaid 6 months' period as back- ground which throws light on, and imparts meaning to , the events which occurred thereafter. See Florida Telephone Corporation, 88 NLRB 1429 ; Sun Oil Company, 89,NLRB 833; and N. L. R. B v. Luzerne Hide & Tallow Company, 188 F. 2d 439 (C A. 3), 9 Unless otherwise noted, all dates referred to herein occurred in 1950. COAL CREEK COAL COMPANY 23 ,could not work thereunder ; that he had his lawyer draft an agreement whereby the employees could purchase stock in the Respondent's mine; that if a sufficient number of employees subscribed to the agreement, the mine would -reopen; that by virtue of their stock interest in the Respondent's mine, the employees would be able to work the mine free of any interference by UMW ; that each employee signing the stock purchasing agreement would have to make an initial payment of 10 dollars and thereafter make periodic payments until the stock to which he subscribed was fully paid. Himmelberger further testified credibly that most of the employees signed the agreement that evening. Himmelberger further testified credibly and without contradiction that several days after the above-mentioned meeting, Powell told him the employees of the Knight Ideal Coal Company (whose mine is near that of the Respondent) had formed an independent union and the Respondent would like to have such an organization in its establishment ; that Powell then requested him to discuss the matter with his coworkers and to advise Powell about their thoughts with respect thereto ; and that he did as requested. On March 6, the Industrial Commission of the State of Utah 10 conducted a secret ballot election among the Respondent's employees for the purpose of ascertaining whether or not the employees wanted to be represented by the UMW. Just prior to the balloting, which took place in the Respondent's offices, Powell assembled the employees, told them that they had the right to vote the way they desired but if the UMW won the election, the Respondent could not operate the mine under the terms demanded by that organization ; and again referred to the aforesaid stock purchase agreement, suggesting that those who had not already done so should sign it. At the conclusion of the balloting, the representative of the Commission con- ducting the election announced that 25 votes were cast for UMW and 17 against. Powell and a representative of UMW then conferred privately for about an hour. At the conclusion thereof and after the UMW representative had left, Powell, in the presence of about 35 employees, took the stock purchase agree- ment from his files and then stated that those who had signed that agreement and who had voted for the UMW should strike their names from the agreement and that their subscription money would be refunded. Thereupon some em- ployees, including Floyd Golding, his brother, Lavelle, Carl Olson, and Jim Wynn struck their names from the agreement. About a week after the aforesaid meeting, Powell assembled some 20 or 25 employees and spoke to them about the union at the Knight Ideal Coal Company and about the benefits, including the welfare plan and the royalties that organi- zation was able to secure for its members. Powell then stated that the em- ployees should discuss the matter among themselves and perhaps they might agree to form such an organization, adding that he would rather give his em- ployees the royalties than give them to the UMW. About the same time, Powell held another meeting with about 15 other em- ployees wherein, according to the undenied and credible testimony of employee Robert Van Wagoner, Powell stated that if the employees formed an independent union they "could really go places" and work while the members of the UMW were on strike. On April 3, pursuant to arrangements made by Superintendent P. M. Camp- bell, Himmelberger, Van Wagoner, and about 10 other employees met with "Also referred to in the record as the Utah State Labor Relations Board and as Utah State Labor Board. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Campbell at Campbell's home. The meeting was also attended by Powell, Fore- man Eldon Van Wagoner,' Foreman Jay Houston, and Gale Farmer, the then president of Knight Ideal Coal Company's union. The meeting was opened with a discussion, alternately by Powell and Camp-, bell, regarding the formation of an independent union at the Respondent's mine. Then Campbell introduced Farmer, who outlined the contract which his union had with his employer, and which contained provisions for the establishment of a welfare plan. After finishing his explanation of the contract, and the discussion that ensued with respect thereto, Farmer left the meeting. Campbell then inquired whether the employees wanted to form an organiza- tion similar to the one at Knight Ideal Coal Company. After the employees indicated their approval, Powell stated that he would agree to pay into the treasury of such an organization 25 cents royalty for each ton of coal mined, and henceforth would put Campbell in complete charge of the mine's operation and would confine his own activities to purchases and sales. Thereupon, Camp- bell suggested that the employees proceed with the formation of the Independ- ent by the selection of officers. This the employees did after Campbell and Powell had stepped into an adjoining room" After the officers had been selected, Campbell and Powell returned to the meet- ing. Campbell then stated that he would immediately communicate with Allan E. Mecham, a Salt Lake City attorney, and have Mecham attend to the legal matters for the new association. The meeting then adjourned and Campbell, accompanied by Himmelberger and two or three other employees, telephoned to Mecham and arranged with Mecham to confer with the newly selected offi- cers in Mecham's office on April 8. Campbell then told Himmelberger that he would send a "company man" with the officers when they met with Mecham and that the Respondent would pay the persons who went to Salt Lake City to see Mecham, their regular day's pay. Three elected officers and Houston, the "company man," conferred with Mecham at Mecham's office on April 8, pursuant to Campbell's arrangements with Mecham. There, the president of the new organization, Dwain Harper, told Mecham that they desired to form an independent union. Mecham agreed to attend to all the details with respect to the formation of the Union and to the preparation of the necessary affidavits and statements required by Section 9 (f), (g), and (h) of the Act. Mecham was then told by Houston that he was there for the purpose of assuring Mecham that the Respondent would reimburse Mecham for whatever expenses he incurred and that it would also pay Mecham's fees. Mecham then stated that he wanted a $1,000 retainer fee. Whereupon Houston said that he would immediately contact Powell and Campbell and see that they sent Mecham the requested sum. In due course, Mecham incorporated the Independent, prepared, had executed, and filed the necessary affidavits and statements required by the Act, and then filed a representation petition. Under date of May 10,, the Respondent and the Independent executed a consent election agreement which the Regional Director for the Twentieth Region sub- sequently approved. The election was held on June 19. Of the 23 ballots cast, 21 were cast for the Independent and 2 were challenged. Under date of June 27, the said Regional Director certified the Independent as the collective bar- gaining representative of the Respondent's' employees in the appropriate unit. n The father of Robert Van Wagoner. As far as the record shows, Foreman Van Wagoner and Houston remained in the meet- ing during the selection of officers. COAL CREEK COAL COMPANY 25 Employee Arnie Adair testified credibly that on the day prior to the aforesaid election, Campbell " told him that the vote must be unanimous in favor of the Independent ; otherwise, "UMWA (sic) will have a chance at us." Robert Van Wagoner credibly testified that 2 days prior to the Board elec- tion, Campbell told him that if the Independent received a unanimous vote at the election the employees would be given a chicken dinner; that on the night before the said election Campbell requested a group of the employees to remain at the mine overnight ; that when he queried Campbell as to the reason for this unusual procedure, Campbell replied word had been received by the Respondent that UMW adherents would attempt to prevent the employees from voting; that some employees, including himself, remained at the mine that night ; and that the following day Campbell brought them breakfast and then stated, "Remember, we want a hundred per cent" vote for the Independent. Himmelberger credibly testified that on the day before the election, Campbell said to him and employee Emmett Farnsworth, to quote Himmelberger : This election has got to go a hundred per cent. If it don't go a hundred per cent, we'll know that we've got some rats in the crowd. It's just got to go one hundred per cent or none of us will be able to work. If it don't go a hundred per cent, the UMWA (sic) will take over and they will have the run of the mine and none of us will have a job. Adair also testified that a few days prior to the Board election, Powell said to him and to some other employees, "Boys, we got to win this election ; get the Independent in ; . . . Boys, if we win it, we'll give you a big chicken dinner, all the beer and whiskey you [can] drink." Powell denied that he advised any employee how to vote in the election and further denied promising any employee a chicken dinner, beer, or whiskey if he voted in favor of the Independent. Adair was an honest and forthright witness and his demeanor while on the witness stand favorably impressed the under- signed. On the other hand, Powell did not so impress the undersigned. The undersigned therefore finds that Powell made the above-quoted statement at- tributed to him by Adair. After numerous meetings between the officers of the Independent and Powell and other managerial officials of the Respondent and after numerous meetings of the membership of the Independent, the Respondent and the Union executed a collective bargaining agreement dated July 29, 1950, containing the following clause: . . . It is expressly understood and agreed that as a condition of employment, all production employees hired by the Company must within thirty (30) days after date of hire tender his or their dues and initiation fees to the Union or become a member of the Union within the said thirty (30) day period... . That the Independent was formed by the Respondent" in violation of the Act is too clear for discussion. In fact, the Respondent's counsel does not seriously challenge the allegations of the complaint that the Independent is existing in violation of the Act, -for in his brief he states : 13 Campbell did not testify. 14 The record is clear and the undersigned finds that the Independent came into being at the meeting held at Campbell 's home on April 3. , The first charge filed herein, alleging that the Respondent violated Section 8 (a) (2) of the Act through Its illegal connection with the Independent , was filed by Forbush on September 27. Hence a finding with respect to the formation of the Independent may properly be made for it occurred within 6 months of the filing of the charge. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unquestionably there were some meetings held and procedures followed which would not have been followed had either the Respondent corporation or the members of the Independent Union had wider experience of such matters. The errors committed and indiscretions practiced were not due to any intent to coerce or dominate the situation, but were the offspring of employee-employer relations. Furthermore, the credible evidence, as epitomized above, leads to the ines- capable conclusion that the Independent existed and functioned only through the Respondent's control, participation, financial support, and sufferance 16 In short, the Independent was used by the Respondent as a substitute for collective bargaining and, as such, is a device which has been repeatedly and consistently held by the Board and the courts to be an outlawed form of labor organization 16 The undersigned is also of the opinion, and finds, that by advancing the In- dependent $1,000 to defray Mecham's fees and disbursements and by incorpora- tion in the contract with the Independent the union-shop clause, when admittedly no security authorization election had been held by the Board and none requested, the Respondent lent further financial and other support to the Independent. Upon the entire record in the case, the undersigned finds that the Respondent formed, dominated, and interfered with the administration of the Independent within the meaning of Section 8 (a) (2) and (1) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guar- anteed in Section 7 thereof. It is further found that by Campbell's and Powell's promises of benefits to Adair, Van Wagoner, and other employees, in the event of an Independent victory at the polls ; Powell's threat that the Respondent could not operate its mine under conditions imposed by the UMW ; Campbell's statements to Himmelberger and Farnsworth on the day preceding the election, that if the vote was not 100 percent for the Independent "none of us will be able to work," and "we'll know that we've got some rats in the crowd" ; and Powell's requirement that those who voted for the UMW in the election of March 6 have their names struck from the stock purchase agreement which the Respondent had offered to combat the UMW, the Respondent violated Section 8 (a) (1) of the Act. B. The discharge of Floyd Golding Golding was first employed, by the Respondent on November 14, 1949, as a truck loader. At the time of his discharge on March 23, 1950, he was em- ployed as a coal car dumper. Golding testified credibly, and without contradiction, that on February 8 he was approached by a representative of the UMW, in the presence of Foremen Eldon Van Wagoner and John Nichols and some five nonsupervisory employees, and requested by the said representatives to attend a UMW meeting the following evening; that he attended the meeting and Joined UMW thereat; that throughout The record discloses, and the undersigned finds, that ( 1) several Independent mem- bership meetings were held on company time and property with Campbell 's and other supervisors' knowledge ; (2) Powell showed strenuous objections to employee Magnum's being a member of the Independent ; and (3 ) Campbell's efforts were successful in keeping employee Garcia out of the Independent for a period of time. 16 See Newport News Shipbuilding & Drydock Co., 308 U. S. 241; N. L. R. B. v. Baldwin Locomotive Works, 128 F. 2d 39 (C. A. 3) ; Bethlehem Steel Co. v. N. L. R. B., 120 F. 2d 641 (App. D. C.) ; Westinghouse Electric & Mfg. Co. v. N. L. R. B., 112 F. 2d 657 (C. A. 2) ; Budd Manufacturing Co. v. N. L. R. B., 138 F. 2d 86 ( C. A. 3) ; and N. L. R. B. v. Rath Packing Co., 123 F. 2d 684 (C. A. 8). COAL CREEK COAL COMPANY 27 the balance of February, on company time, he openly solicited members for the UMW from among his coworkers ; that sometime in February or March, he told Foreman Ben Anderson he was endeavoring to bring the UMW into the mine in order to stabilize the wages of the Respondent's employees ; that from the latter part of February until March 6, the mine was closed due to the activities of the UMW pickets ; that on March 5, Foreman Van Wagoner called at his home and informed him that the mine would reopen the following day and that he should report,to work; that upon reaching the Respondent's offices on March 6, Powell told the employees that the pickets were at their usual places, and that Powell then took some employees through the picket line in an automobile. Golding further testified, and the undersigned finds, that after Powell had left he and some other employees got into the Respondent's station wagon, which was driven by Foreman Van Wagoner, and proceeded toward the mine; 17 that when they reached the picket line he informed Van Wagoner that he did not desire to cross it because he was a UMW member ; that his brother, Lavelle, and Carl Olson also told Van Wagoner that they did not care to cross the picket line; that thereupon Van Wagoner turned around and drove to the place whence he started ; that shortly thereafter Powell returned from the mine and inquired why the men in the station wagon did not cross the picket line; that Van Wagoner informed Powell that certain men did not want to cross it ; that Powell then said that the men should get into the station wagon and he (Powell) would drive them through the line; that all the men who were previously in the station wagon got into it except himself, his brother, and Olson ; and that Powell then drove the station wagon through the picket line.18 Regarding the events that transpired on March 7, Golding testified without contradiction, and the undersigned credits his testimony, that he presented to the bookkeeper for "recomputation" the pay check he had received a day or two previously so that the bookkeeper could include in a new check the amount of money he had paid toward the purchase of stock pursuant to the aforesaid stock purchase agreement ; and that he then inquired of Powell if he was dis- charged, to which inquiry Powell replied in the negative. On March 8, Golding reported for work at the usual hour. Regarding the events that then transpired Golding testified, and the undersigned finds, that he inquired of Powell, who was standing near the station wagon as the em- ployees were boarding it preparatory to going to the 'mine, whether there was room therein for him ; that Powell replied, to quote Golding, " No sir ; you wouldn't go through that picket line when I wanted you to the other day, so I got somebody in your place" ; and that he then left the Respondent' s premises.30 On March 13, pursuant to Foreman Van Wagoner's request, Golding reported for work. He worked continuously until March 22. For the first 3 or 4 days of this period he was assigned to loading cars on trucks and then was assigned to his usual job of dumping coal cars. 17 The station wagon normally was used to take the employees to and from the mine. The employees boarded at the office, which is some 14 miles from the mine. The station wagon was also used to pick up certain employees at their homes and bring them to the office before transporting the employees to the mine. 18 Foreman Van Wagoner's testimony with respect to the foregoing events is in sub- stantial accord with Golding's version thereof. 19 The above-described discharge or layoff was not specifically alleged in the complaint as constituting an unfair labor practice . Moreover , it antedated by more than 6 months the charge filed by Golding on September 19, 1950. Accordingly, the undersigned does not find that,the above discharge or layoff constituted unfair labor practices as such, but does find that it is indicative of the Respondent's actions with respect to Golding's subsequent discharge. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At a UMW meeting held on the night of March 22, Golding was elected recording secretary. The nest day he publicized that fact among his coworkers. On March 23, the station wagon which usually picked up Golding and his brother at Golding's home did not do so. After waiting about an hour, Golding and his brother went to the Respondent's offices to ascertain why the station wagon did not pick them up. After waiting there for about 30 minutes and not being able to find out why the station wagon did not stop for them that morning, Golding and his brother proceeded to the ranch where the latter was then living. About noon that day, Powell telephoned the ranch and requested the two Golding brothers to report to Powell's office. Golding testified that when he and his brother arrived at the office, they asked Powell why the station wagon did not pick them up that morning; that Powell replied that because of the reduction in force, Powell had to let Golding and his brother go because they had less seniority than those retained ; that during the discussion which ensued Golding's brother conceded that the em- ployees retained had more seniority than he ; that Powell then conceded Golding had more seniority than the persons retained ; that Powell then indicated that he would look into the matter and "see what we can figure out on that" ; and that Powell then assigned Golding and his brother to helping the carpenter erect some company-owned houses. Golding and his brother worked on this con- struction job for the balance of that day and were then laid off. Powell testified that Golding was, laid off on March 23, in- the reduction of force that took place about that time due to cancellation of orders ; that Ray Bentley, a shuttle car operator, replaced Golding as car dumper ; that Bentley was retained because of the scarcity of trained shuttle car operators like Bentley ; that Golding, being a common laborer, could be replaced very easily ; that be- cause of certain mechanical changes made in the latter part of March in the method of handling coal from the mine, the Respondent was able to dispense with car dumpers, such as Golding ; and that the Respondent had no "agreement with the miners that a rule of seniority would apply" when laying off employees. Golding was an honest, and forthright witness. As found above, Powell was not. Accordingly, and upon the entire record in, the case, the undersigned finds Golding's version of what transpired on March 23 to be substantially in accord with the facts. Moreover, the only evidence of cancellation of orders which Powell contended caused the reduction in force in March was Powell's uncorroborated testimony. No other evidence, although easily attainable, was introduced to substantiate this contention. The record is manifestly clear, and the undersigned finds, that Powell, despite his denials, had knowledge of Golding's membership and activities in behalf of the UMW prior to Golding's layoff on March 23. Powell's antipathy for the UMW is likewise clear. This latter finding is not only supported by the numerous anti-UMW statements attributed to Powell by several credible wit- nesses,20 but is buttressed by the fact that Powell aided in the formation and in the domination of the Independent and used it to forestall and frustrate all organizational activities of the UMW within the Respondent's establishment. Upon the entire record in the case, the undersigned is convinced, and finds, that Floyd Golding was discharged on March 23, and was thereafter refused reinstatement, because of his membership and activities in behalf of the UMW. 20 Furthermore, Robert Van Wagoner testified credibly , and without contradiction, that during a conversation with Powell on March 13 , relative to the formation of an inde- pendent union , Powell stated that he had discharged Ernie Davis because Davis was a mem- ber of UMW. COAL CREEK COAL COMPANY 29 By such discharge and refusal to reinstate, the Respondent violated Section 8 (a) (3) and (1) of the Act2 At the hearing and in his brief the Respondent's counsel contended that the complaint as to Floyd Golding should be dismissed because Golding is "merely a front for United Mine Workers of America in this proceeding." The record does not support this contention and hence it is without merit?2 C. The September 21 discharges While working on the night shift on September 19, Campbell discharged Robert Garcia and Robert Williams, who also were working on that shift, for reasons not discosed by the record. On September 20 Powell was informed of Campbell's action. That evening he went to the mine to ascertain the reason for the discharges. There, Campbell and Powell engaged in a heated argument which culminated in the discharge of Campbell and Joseph Grant 23 As soon as the discharges of Campbell and Grant took place, the balance of the night-shift employees ceased work and walked off the job. The following morning the station wagon failed to call at the homes of the employees who were normally picked up and brought to work. This was due to the fact that the driver thereof refused to work until Campbell and Grant were reinstated2' Many of the workers on the day shift also refused to work for the same reason. Later that day, September 20, about 15 striking employees, all Independent members, met and discussed the discharges of Campbell and Grant and the Respondent's refusal to reinstate them. During the course of the discussion, the employees decided to dissolve the Independent. In furtherance of that intention, a petition was prepared bearing the following legend : To the Management of the Coal Creek Coal Company and Others: This is to certify that we of this date have dissolved the independent union of which we were members of and take this means of notifying you of our action. After the aforesaid document had been signed by each of the 15 persons attending the meeting, it was given to Grant for delivery to Powell. Grant met Powell outside the Respondent's offices and tendered the petition to Powell. The latter, according to the former's credited testimony, cursed Grant and refused to accept the proffered petition. Thereupon Grant dropped it near Powell and departed. 21 Golding' s uncontradicted testimony , which the undersigned credits, reveals that on numerous occasions he asked Campbell for reemployment and that Campbell failed to reem- ploy 111m. Golding further testified without contradiction, and the undersigned finds, that on one occasion he asked Foreman Van Wagoner for reemployment and that the latter stated he should discuss the matter with Campbell. re See N. L. R. B. v. Luzerne Hide d• Tallow Company, 188 F. 2d 439 (C. A. 3). 23 Grant had been helping Campbell with a drill when Powell arrived at the mine. Ac- cording to Grant' s testimony, after Powell had discharged Campbell, Powell turned to him and said, "Well , Grant, you just might as well go with" Campbell . Powell testified that he did not discharge Grant but that Grant quit because Campbell had been discharged. It would serve no useful purpose to resolve the conflict in the testimony of Grant and Powell as to whether the former quit or was discharged , for the undersigned is convinced, and finds, that Grant's severance of employment was not violative of the Act. 24 The General Counsel contended that the employees walked off the job because of the discharges of Williams and Grant . The record is manifestly clear, and the undersigned finds, that the walkout was occasioned by the discharges of Campbell and Grant. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grant returned to the employees' meeting and reported Powell's actions. The employees then decided to meet again the following afternoon. At this meeting, again attended by practically the same persons who attended the previous meeting, it was decided they would en masse see and discuss the matter with Powell. Upon arriving at Powell's office, Frank Blatnick, a complainant herein and one of the employees' spokesmen, stated to Powell that the men would return to work provided Campbell and Grant were reinstated. Powell replied, according to Himmelberger's credible testimony, "All you guys that signed this here petition, I am done with you. I want no more to do with you. You can pick up your checks in half an hour." When Forbush inquired.of Powell why he assumed that position, Powell replied, to quote Himmelberger's credited testimony, "Because you guys have signed this document, you are not fair to me, you are not doing your duty to me, you are leaving me hanging in mid-air." After that remark the employees left Powell's office. As found above, Grant's discharge was not violative of the Act. The same is true as to Campbell's discharge. The Respondent, however, violated Section 8 (a) (3) and (1) of the Act when, on September 21, it discharged complainants Blatnick, Bly, Hughes, Adair, Thacker, Albert Powell, Robert Van Wagoner, Himmelburger, Forbush, and LeMarr because they struck in protest of the discharges of Campbell and Grant and because they signed and presented the petition to dissolve the Independent. Admittedly, the strike was in protest against certain lawful discharges and hence it was an economic strike, and the Respondent was free to replace such strikers at any time prior to their unconditional request for reinstatement. However, it does not follow from this that the Respondent was free to discharge the strikers before they were replaced. In fact, when the strikers requested reinstatement on September 21, even though the request was conditional, they were discharged and told that their final pay checks would be ready within a half hour. Concededly, the discharges became effective prior to the strikers being replaced. Under the circumstances, the discharges were violative of the Act and the undersigned so finds. Since it has been found that the discharge of Joseph Grant was not violative of the Act, the undersigned will recommend that the complaint as to him be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with Respondent's operations described in Section I, above, have a close, intimate, and substantial. relationship to trade, traffic, and commerce among the several States, and such of them as have been -found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1), (2), and (3) of the Act, the undersigned will rec- ommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 25 Regarding the meeting, Powell testified, and the undersigned finds, that the employees demanded the reinstatement of Campbell and Grant before they would return to work. COAL CREEK COAL COMPANY 31 As found above, the Respondent formed, dominated, and interfered with the administration of the Independent and contributed support to it. The under- signed is convinced, and finds, that the present existence of the Independent and the Respondent's continued recognition thereof constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them under the Act. Therefore, in order to effectuate the policies of the Act and to free the employees from the effects of the Respondent's unfair labor practices, the undersigned will recommend that the Respondent withdraw all recognition from the Independent as a representative of any of the Respondent's employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment and to completely disestablish it as such representative. As previously found, the Respondent's conduct in executing the contract, dated July 29, 1950, with the Independent constituted unlawful assistance to the Inde- pendent. This contract has been a means whereby the Respondent has utilized the unlawfully formed, dominated, and supported Independent to frustrate self- organization and to defeat genuine collective bargaining by the employees. The undersigned, therefore, recommends that the Respondent cease and desist from giving effect to said contract or to any renewal, extension, modification, or sup- plement thereto. Nothing herein shall be taken to require the Respondent to vary the wages, hours, seniority, and other substantive features of its relations with the employees themselves, which the Respondent has established in per- formance of the said contract or any revision, extension, renewal, or modification thereof. Having found that the Respondent discharged Frank Blatnick, Bee Bly, Wil- lard Hughes, Arnie Adair, Rawlins Thacker, Alfred Powell, Robert Van Wag- oner, John Himmelberger, Maurice Forbush, and Elmer LeMarr, and refused the said individuals reinstatement,28 it will be recommended that the Respondent offer the aforesaid 11 individuals, excepting those already rehired, immediate and full reinstatement to their former or substantially equivalent positions'21 without prejudice to their seniority or other rights and privileges. It is the Board's normal practice to award employees who are discriminatorily discharged while on Strike back pay from the date when they unconditionally request reinstatement rather than from the date of their discriminatory dis- charges, but in the instant case it appears that on September 21, 1950, the dis- chargees found to have been discriminated against, except Golding, requested reinstatement. That request, however, was for reinstatement of all the strikers together with the reinstatement of Campbell and Grant. The Respondent refused to reinstate Campbell and Grant and regarded the request as conditional. The undersigned, under the circumstances, finds that no unconditional request for reinstatement has been made. As the record does not disclose the date when the strike was abandoned, the undersigned will recommend that back pay be awarded to Blatnick, Bly, Hughes, Adair, Thacker, Alfred Nowell, Robert Van Wagoner, Himmelberger, Forbush, and LeMarr from the date on which they 21 At the conclusion of the second day's (January 16, 1951 ) hearing herein, the Respond- ent's counsel stated on the record that the Respondent offers unconditional reinstatement to their former or substantially equivalent positions to Prank Blatnick , Arnie Adair, Rawlins Thacker, Alfred Powell, Robert Van Wagoner, and John Himmelberger. The undersigned thereupon advised Respondent's counsel that he should make the offer of reinstatement to the aforesaid employees directly, for the reasons stated by the under- signed on the record. 'm See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch. 65 NLRB 827. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make, or have made, an unconditional offer to return to work, to the date on which the Respondent offers, or has offered, reinstatement to them, and each of them, in the manner set forth above. Having found that the Respondent has discriminated in regard to the hire and tenure of employment and the terms and conditions of employment of Floyd Golding, the undersigned will recommend that the Respondent offer to Golding immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges. The undersigned will also recommend that the Respondent make Golding whole for any loss of pay he may have suffered by the reason of the Respondent's discrimi- nation against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages, less his net earnings during that period." Back pay shall be paid in accordance with-the formula enunciated by the Board in F. W. Woolworth, 90 NLRB 289. The unfair labor practices found to have been engaged in by the Respondent are of such a character and scope that in order to insure the employees here involved their full rights guaranteed them by the Act it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their right to self-organization. It will be recommended further that the allegations of the complaint that the Respondent discriminatorily discharged Joseph Grant be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Mine Workers of America and Independent Union of Coal Creek Coal Company are labor organizations within the meaning of Section 2 (5) of the Act. 2. By forming, dominating, and interfering with the administration of In- dependent Union of the Coal Creek Coal Company and by contributing support to it, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Floyd Golding, thereby discouraging membership in the United Mine Workers of Amer- ica, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By discriminating in regard to the hire and tenure of Frank Blatnick, Bee Bly, Willard Hughes, Arnie Adair, Rawlins Thacker, Alfred Powell, Robert Van Wagoner, John Himmelberger, Maurice Forbush, and Elmer LeMarr, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section.2 (6) and (7) of the Act. 7. By discharging Joseph Grant, the Respondent did not violate the Act. [Recommended Order omitted from publication in this volume.] 28 See Crossett Lumber Co., 8 NLRB 440. 29 See May Department Stores, etc., 326 U. S. 376.