Crowe Coal Co.

In the Matter .of CROWE COAL COMPANY and UNITED MINE WORKERS OF AMERICA , DISTRICT No. 14, Case No. C'--564.-Decided November 23, 1938 Coal Mining Industry-Isiterference, Restraint, and Coercion : expressed oppo- sition to labor organization ; questioning employees regarding union affiliation and activity-Discrimination: discharges ; for union membership and activity- Reinstatement Ordered-Back Pay: awarded , from discharge to last attempt to secure compliance of respondent with Act and from filing of charges to the offer of reinstatement. ,Mr. Paul F. Broderick, and Mr. Bernard J. Alpert, for the Board. Langwort/ y, Spencer, Terrell cl; Matz, by Mr. Frank H. Terrell; of Kansas City, Mo., for the respondent. Mr. Harry E. Selekman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges filed on May 4, 1937, and amended charges filed on November 10,, 1937, by United Mine Workers of America, District No. 14, herein called the United, the National Labor Relations Board, herein called the Board, by George O. Pratt, Regional Director for the • Seventeenth Region (Kansas City, Missouri), issued its com- plaint, dated November 10, 1937, against Crowe Coal Company, Clinton, Missouri, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint alleged in substance that the respondent discharged Kaples Forsythe and A. W. Sivils on October 26, 1935, Charles Kerns on October 28, 1935, and Carey Scott on October 30, 1935, and has since that time refused to reinstate them because they joined and assisted. the United; and that the respondent, by the discharge of these employees and by intimidating and coercing its employees in 9 N. L. R. B., No.100. 1149 1150 NATIONAL LABOR RELATIONS BOARD their right to join or assist labor organizations of their own choosing, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. Copies of the complaint, accompanied by notices of hearing thereon, were duly served upon the' respondent and the United. On -November_,20,•1937, the respondent filed an answer to the complaint denying the allega- tions of the complaint that it was engaged in interstate commerce and that it had committed the unfair labor practices. Pursuant to notice, a hearing was held on November 29, 1937, at Kansas City, Missouri, before Theo. R. Bland, the Trial Examiner. duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on other objections to the admission of evi- dence. The Board has reviewed such rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings- are hereby affirmed. On April 20, 1938, the Trial Examiner filed an Intermediate Report, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The respondent filed excep- tions to the Intermediate Report and a brief. On May 25, 1938, the Board, acting pursuant to Article II, Sec- tion 36, of National Labor Relations Board Rules and Regulations- Series 1, as amended, issued an order reopening the record for fur- ther evidence. Pursuant to notices duly served upon the respond- ent and the United, a further hearing was held on July 1, 1938, at Springfield, Missouri, before Theo. R. Bland, the Trial Examiner. duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on other objections to the admission of evi- dence. The Board has reviewed such rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the first hearing it was agreed by counsel for the Board and the respondent that the record was to be left open for the introduction at a later date of economic data relating to the bituminous coal in- dustry. After the second hearing had ended, in accordance with the terms of the agreement, Bulletin No. 2 of the Economics Division DECISIONS AND ORDERS 1151 of the Board 1 was submitted to counsel for the respondent for his approval prior to its being made an exhibit in the case. On Novem- ber 16, 1938, counsel for the respondent filed with the Board objec- tions to the introduction of this material in evidence. The Board hereby overrules such objections and orders that the bulletin, desig- nated Board Exhibit No. 11, be made a part of the record. Pursuant to notice, a hearing was held before the Board on Sep- tembei 27, 1938, for the purposes of oral argument on the respond- ent's exceptions to the Trial Examiner's Intermediate Report and the entire record. The respondent was represented by counsel and participated therein. The Board has reviewed the exceptions and brief filed by the respondent and finds the exceptions to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Crowe Coal Company,'- a Missouri corporation, operates a strip mine in Clinton, Missouri, and maintains a sales office in Kansas City, Missouri. During the year 1936, the respondent mined and sold 267,495.5 tons of coal to various consumers. Of this amount, jobbers who accepted delivery at the mine, sent 34,004.74 tons of coal out of the State f. o. b. respondent's aline. In addition, the respond- ent sold 32,231.33 tons of coal to the Kansas City Power & Light Company and 46,590 tons to the St. Louis-San Francisco Railway Company for road and engine service and for use in its stationary plants. The Kansas City Terminal Railway Company purchased 17,888.58 tons of coal which were used at its powerhouse in Kansas City, Missouri. II. THE ORGANIZATION INVOLVED United Mine Workers of America, District No. 14, is a labor or- ganization affiliated with the Committee for Industrial Organization, admitting to its membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The discharges On October 25, 1935, a meeting was held at the home of Kaples Forsythe, an employee of the respondent, for the purpose of organiz- ing the respondent's employees. About 15 workers of the respondent I "The Effect of Labor Relations in the Bituminous Coal Industry Upon Interstate Com- merce," National Labor Relations Board, Division of Economic Research , Bulletin No. 2. s At the time of the discharges , the name of the respondent was Reliance Coal Corpora- tion . On January 15, 1937 , its name was changed to Crowe Coal Company. 1152 NATIONAL LABOR RELATIONS BOARD attended and were addressed by Henry Allai, president of- the United, Romak, secretary-treasurer of the United, and Abe Vales, interna- tional representative of the United Mine Workers of America. '-At the conclusion of the meeting Forsythe, Albert Sivils, and Charles Kerns joined the United. After the meeting had ended, Vales visited the home of Carey Scott, another employee of the respondent, who joined the United at that time. About 8:30 in the morning of October 26, 1935, Albert Sivils was called to the office of Burnett, the superintendent of the mine, and questioned about his activity in the United. Burnett asked Sivils what part he had taken in the United, asserted that he was not going to have any organization in the mine, and accused him of talk- ing to employees of the respondent about the United during the :lunch hour and in the evening. He then told Sivils to return to work. Burnett next called in Forsythe and questioned him about his activities in the United. Forsythe answered that he had introduced Vales to some of the respondent's employees and that a union meet- ing had been held at his home on the preceding evening. Burnett then stated that Forsythe had "got himself in a crack" and that he would have to discharge him because "we don't want any organiza- tion here." Forsythe was then ordered to go to the scale house and wait for Sivils whom Burnett stated lie was also going to discharge. He added that, "Probably Charlie Kerns will follow you." About 10 o'clock in the morning, Sivils was directed by Wilson, his foreman, to see Burnett and to take his lunch bucket with him. Burnett told him that he had nothing against his work, but he was not going to have "any damned organization around here." Sivils said he was going to take the matter up with the United to see whether he could be reinstated. Burnett then threatened that "If I do have to, I will make it so damned miserable for you, you can't stay up there." Shortly thereafter, Forsythe reported his discharge to Vales, who was instructed by Allai to attempt to have the men reinstated. Vales, accompanied by Forsythe and Sivils, saw Burnett that evening and asked him why the men had been discharged. Burnett replied that they were dismissed because they had joined the United, and that he had nothing against them except their activity in the United, which was the reason for their discharge. He refused to reinstate the men upon Vales' request. On October 26, 1935, about 10 minutes before quitting time, Bur- nett called in Charles Kerns and asked him "Charlie, what have you been doing running around with Vales and talking up this union?" Kerns denied that he had been running around with Vales. Burnett DECISIONS AND ORDERS :1'153 then asked whether Kerns "had-ever met Vales. - Kerns, stated that Forsythe had introduced Vales to him. Kerns was then instructed by Burnett to bring his foreman to " his office. Upon their ' arrival, Wilson and Burnett spoke together for a few minutes and then Burnett told Kerns that he should come back to work on the• fol- lowing Monday. He stated that he wanted to see whether Kerns had anything to do with this organization, that he had dischar"ged two boys, and that he was going to discharge everybody connected with the United. After Kerns had finished his work on Monday, October 28, his foreman told him, "You are discharged by order of Burnett for joining the United Mine Workers.", Kerns stated that he did not ask to be reinstated because he knew the 'respondent had'refused the request of Forsythe and Sivils. On Sunday afternoon , October 27, Burnett met " Carey Scott while he was on a public road, and Burnett asked him what he knew about the United. Burnett told Scott that he had fired Forsythe and Sivils because they had joined the United , •aud that there was ,not going to be any union in the mine as long as ' he was boss. On October 30, Burnett came to Scott's home, called him outside, and told him he had to discharge Scott because he had joined the United. About a month later, Allai, in a meeting with W. C. Shank, the president of the respondent, requested that the four discharged em- ployees be reinstated. Shank refused to do so on the ground that they had joined the United . He asserted that, "We are not going to have any organization in the Clinton field." During a meeting a year later, Allai again renewed his request that these men be re- instated, but Shank still refused to do so. The evidence upon which the findings in this section are based was not controverted by the respondent, which called only one witness, W. C. Shank, who ad- mitted that he refused to reinstate the four men because they were members of the United. We find that the respondent discharged Kaples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott because of their membership and activity in the United. We further find that the respondent has discriminated against its employees in regard to hire and tenure of employment, the discouraging membership in a labor organiza- tion and has thereby interfered with, restrained , and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. All four employees desired to be reinstated. At the time of their discharges , Forsythe , Sivils, and Kerns were receiving 561/4 cents per hour, and Scott was being paid $1.02 per hour. Since their dis- charges in October 1935, Forsythe earned $868.70; Sivils, $529.26; Kerns, $295 .20; and Scott, $262.80. 1154 NATIONAL LABOR RELATIONS BOARD 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 its operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor ,disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has discriminated in regard to the hire and tenure of employment by discharging Kaples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott. We shall order the respondent to offer Kaples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott immediate and full reinstatement, without preju- dice to their seniority and other rights and privileges, and to make them whole for any loss of pay they may have suffered by reason of their respective discharges. Although the record reveals that the last conference between the United and the respondent for the purpose of obtaining the reinstatement of the discharged employees took place in November or December 1936, no charges were filed against the respondent until May 4, 1937. We shall allow back pay to the employees for the period during which the Union was seeking to secure the respondent's voluntary compliance with the Act, but we are of the opinion that the employees are not entitled to back pay for the period during which the United failed to file its charges, in the absence of any showing of extenuating circumstances for this delay.3 We shall, accordingly, order the respondent to make whole each of these men for any loss of pay he may have suffered during the ,periods from the date of the discharge to the date of the last con- ference held by the respondent and the United, and from May 4, 1937, until the date of the offer of reinstatement by payment to him of a sum equal to the amount which he normally would have earned as wages during said periods, less his net earnings 4 during said periods. We shall further order the respondent to cease and desist from its unfair labor practices and to take certain affirmative action which we deem necessary to effectuate the policies of the Act. E See Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America, Branch No . 259, 8 N. L. R B. 944. 4 By "net earnings" Is meant earnings less expenses, such as for transportation, room and board , incurred by any employee in connection with obtaining work and working else- where than for the respondent which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- tea, Lumber and Sawmill Workers Union , Local 2390, 8 N L R B 440 DECISIONS AND ORDERS 1155. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Mine Workers of America, District No. 14, is a labor ,organization within the meaning of Section 2 (5) of the Act. 2. " By" discriminating in regard to ' hire and tenure • of employment of Kaples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott, thereby discouraging membership in the United, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices, affecting. commerce,--within. the, meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Crowe Coal Company, Clinton, Missouri, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the United Mine Workers of America, District No. 14, or any other labor organization of its employees because of membership in the United Mine Workers of America, District No. 14, or any other labor organization, or by discriminating in any other manner in regard to their hire and tenure of employment ; (b) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to 1 aples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott immediate and full reinstatement to their former posi- tions, without prejudice to their seniority or other rights and privileges : 134088-39-vo1 rx--74 1156 NATIONAL LABOR RELATIONS 1 OARD (b) Make whole Kaples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott for any loss of pay they may have suffered by reason of their discharges, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during ,the periods from. the date of. his discharge to the date of the last conference between,the respondent and,the United and from May 4, 1937, to the date of the offer of reinstatement, less his net earnings ,during said periods; (c) Immediately post notices in conspicuous places throughout the mine and maintain such notices for a period of thirty (30) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraph 1 of this Order; (d) Notify the Regional Director for the Seventeenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith.