Low Moisture Coal Co., Inc.

In the Matter of Low MOISTURE COAL COMPANY, INC. and UNITED' MINE WORKERS OF AMERICA, DISTRICT No. 23 - Case No. R-3756.-Decided May 18, 194 Jurisdiction : coal mining industry. Investigation and' Certification of Representatives : existence of question: re- fusal to accord petitioner recognition until certified by the Board; labor organization which did not participate in the hearing, but which had executed a contract with Company's predecessor, had demanded a contract with Com- pany, and which had a substantial representation among Company's em- •ployees, accorded a place on ballot provided it gives notice of its desire to participate in the election; election necessary. Unit Appropriate for Collective Bargaining : all persons employed in the mining, operations of the Company as production employees, excluding superintendents, mine foremen, section foremen,' room bosses, face bosses, entry bosses, elec- tricians engaged in a supervisory capacity, all other supervisory -employees, -and guards or watchmen; agreement as to. AIr. IV. Fred Hume, of Providence, Ky., for the Company. Mr. L. R. Fox, of Madisonville, Ky., for the U. M. W. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Mine Workers of America, District; No. 23, herein called the U. M. W., alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Low Moisture Coal Company, Inc., Providence, Kentucky, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Robert D. Malarney, Trial Examiner. Said hearing was held at Providence, Kentucky, on April 22, 1942. The Company and the U. M. W. appeared and participated.' All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to ' Pi ogrecsive Mine Workers of America , although notified that there was to be a hearing, did not appear. 41 N L. R. B., No. 10. 40 LOW MOISTURE COAL COMPANY, INC. 41 .introduce evidence bearing on the issues. The Trial Examiner's rulings, made at the hearing, are free from prejudicial errors and are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Low Moisture Coal' Company, Inc., is a Kentucky corporation, engaged in the business of mining coal. Since its organization on January 1, 1942, it has produced coal having a value of approximately $16,500. Practically all coal produced by the company moves in interstate commerce. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Mine Workers of America, District No. 23, is a labor organi- zation affiliated with the Congress of Industrial' Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION - The parties stipulated that a question of representation affecting commerce had arisen in that the U. Al. W. requested the Company to recognize it as the sole 'bargaining agent of the Company's em- ployees, and that the latter refused such recognition unless and until the U. M. W. has been certified by the -Board. The Company further admits that the U. M. W. has substantial representation among the employees in the unit agreed upon as appropriate. We find -that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in accordance with a stipulation of the parties, that all persons employed in the mining operations of the Company as pro- duction employees, excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians engaged in a supervisory capacity, all other supervisory employees, and guards or watchmen, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of. Section 9 (b) of the Act. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation can best be resolved by means of an election by secret ballot. The U. M. W. proposes that a pay-roll period which would include those employees working between April 15 and 30, 1942, be used as a basis for deter- mining eligibility to vote. At the time of the hearing the Company employed 45 persons within the appropriate unit. - It stated that there would be a gradual increase in employment in the 60 to 90 days following the hearing and that two additional crews, comprising 22 men, might be added to the pay roll within the 2 weeks immedi- ately following the hearing. In accordance with our usual practice, we shall direct that those eligible to vote shall be the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of our Direction of Election, subject to the limitations and additions set forth therein. Prior to November 7, 1941, the mine involved in this proceeding was owned and operated by Duvin Coal' Company, which had a col- lective bargaining contract with Progressive Mine Workers of Amer- ica, herein called the Progressive. The Company stated that both the U. M. W. and the Progressive had demanded a contract with the Company. The Company further stated that the Progressive has substantial representation among the employees in the unit agreed upon as appropriate. In view of these facts, we shall direct that if the Progressive desires to participate in the election, it shall notify the Regional Director for the Eleventh Region to that effect not later than five (5) days after the date of this Direction of Election, where- upon its name will be placed upon the ballot. In the absence of some such- notice, its name will not appear on the ballot. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby' DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Low Moisture Coal Company, Inc., Providence; Kentucky, an election by secret bal- lot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and LOW MOISTURE, COAL COMPANY, INC. 43 Regulations, among all employees of the Company in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training - of the United States, or temporarily laid off, but excluding those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Mine . Workers of America, District No. 23, for the purposes of collective bargaining. In the Matter of Low' MOISTURE COAL COMPANY, INC. and UNITED MINE WORKERS OF AMERICA, DISTRICT No. 23 Case No. R-3756 AMENDMENT TO DIRECTION OF ELECTION May 09, 1942 On May 18, 1942, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding.' In its decision the Board stated that the name of Progressive Mine Workers of America, herein called the Progressive, would be placed upon the ballot in the election directed, if the Progressive notified the Regional Director for the Eleventh Region of its desire to participate therein not later than five (5) days after the date of the Direction. The Regional Director has advised the Board that the Progressive has notified him to that effect. The Board accordingly hereby amends the aforesaid Direction of Election by striking therefrom the words "whether or not they desire to be represented by United Mine Workers of America, District No. 23, for the purposes of collective bargaining," and substituting there- for the words "whether they desire to be represented by United Mine `Workers of America, District No. 23, or by Progressive Mine Work- ers, of America, for the purposes of collective bargaining, or by neither." 141 N L. It. B 40. 41 N. L. R. B. No. 10a. 44