Thermal Coal Co.

In the Matter of THERMAL COAL CO. and UNITED MINE WORKERS OF AMERICA Case No. R-5579.Decided July 19, 1943 Mr. Burrel Barash, of Galesburg, Ill., for the Company. Mr. Oscar E. Carlstrom, of Aledo, Ill., for the U. M. W. A. Messrs. C..C. Dreman and Russell Craig, .of Galesburg,- Ill,., -and Mr. William Crompton, of Springfield, Ill., for the Progressive. Mr. Robert Silagi, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition and an amended petition duly filed by United Mine Workers of America, •-herein called-the U. M. W. A.,'alleging that a question affecting commerce had arisen concerning the representation of employees of Thermal Coal Co., Galesburg, Illinois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Lester Asher, Trial Examiner. Said hearing was held at Galesburg, Illinois, on June 23, 1943. The Company, the U. M. W. A., and Progressive Mine Workers of America, District No. 1, and Local Union No. 24 thereof, herein called the Progressive, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross- examine witness, to introduce evidence bearing on the issues, and to file briefs with the Board. At, the hearing- the Progressive moved to dismiss the petition. The Trial Examiner reserved ruling on this motion for the Board. For reasons discussed hereinafter, the motion is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudi- cial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : 51 N. L. R. B., No 84. 434 THERMAL COAL COMPANY FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 435 Thermal Coal Co. is an Illinois corporation maintaining its prin- cipal office at Galesburg, Illinois. The Company is engaged in the mining, sale, and distribution of bituminous coal. The Company operates one mine, called the Thermal Mine, located about 3 miles east of Knoxville, Illinois. During the year 1942 the Company's sales amounted in value to approximately $300,000. About 10 percent of the total sales represents shipments to points outside the State of Illinois. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Mine Workers of America is a labor organization admitting to membership employees of the Company. Progressive Mine Workers of America, District No. 1 and Local Union No. 24 thereof, affiliated with the American Federation of Labor, are labor organizations. Local 24 admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION Since January 1941, the Company has had closed-shop agreements with the Progressive. The last contract adopts, with minor excep- tions, the provisions of an agreement, effective April 1, 1941, to March 31, 1943, negotiated between the Progressive and the Coal Producers Association of Illinois; herein called the Association. One week prior to the termination of their contract, the Association and the Pro- gressive agreed to continue it for 1 month pending further negotia- tions. On March 30, the Company and the Progressive agreed to be bound by the continuation to May 1, of the master contract between the Association and the Progressive. By subsequent written agree- ments, the Association and the Progressive further extended the life of their contract, first to May 30, and then to June 30, 1943. On May 3, the Company and the Progressive agreed to be bound by the terms of the continuation of the master agreement to the end of May.' During the month of April 1943, the president of the Company learned from various sources that the U. M. W. A. was attempting t Literally , on March 30, 1944, the Company and the Progressive agreed that terms of the master contract between the Association and the Piogressive should continue in force until May 1, 1943 On May 3, 1943, the Company and the Progressive signed an agree- ment continuing the life of the contract between the Association and the Piogressive until Mai 31 1941 540612-44-vol 51-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to organize the employees of the Company., On May 20, 1943, the Company requested membership in the Association. On May 22, the U. M. W. A. requested the Company to recognize it as the exclu- sive bargaining representative of the Company's employees. Two days later the Company refused this request stating that it would not recognize the U. M. W. A. without a Board certification. On May 29, the Association addressed a letter to the Company informing it of the fact that its application for membership had been approved. The Company and the Progressive contend that the existing con- tract between them constitutes a bar to a present determination of representatives. Inasmuch as the last extension of the contract between the Company and the Progressive expired on May 31, and the last extension of the contract between the Association and the Progressive expired on June 30 there is no merit to this contention.' Statements of the Regional Director and- the Trial Examiner, introduced into evidence at the hearing, indicate that each union represents a substantial number of employees in the unit hereinafter found appropriate.3 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 The U. M. W. A. seeks a unit of production and maintenance enl- ployees, confined to employees of the Company. The Company and the Progressive contend that the appropriate unit is the multiple employer unit established by contract between the Progressive and 2 See Matter of Link-Belt Corporation , 30 N L R B 1000 8 The Regional Director reported that the U M W A submitted 42 application - for-mem-bership cards all of which bore apparently genuine original signatures ; that the names of 40 persons appear ing on the cards were listed on the Company' s pay roll of May 16 to 31, 1941, which contained the names of 71 employees in the alleged appropriate unit . The Trial Examiner reported that all the cards were dated between Apr il 30 and May 21, 1943 Progressive submitted 51 authorization cards all of which bore apparently genuine orig- inal signatures The names of 48 persons appearing on the cards were listed on the Company's pay roll of May 16 to 31, 1943, which contained the names of 71 employees in the appropriate unit . Of these cards one was undated ; I was dated May 3, 1943; and 49 were dated between May 28 and June 3 , 1913 The cards submitted by Progressive con- tain the following clause : The full power and authority to act for the, undersigned as described herein super- sedes any power or authority heretofore given to any person , or organization to represent me The Progressive urges the dismissal of the petition on the ground that the application cards submitted by the U M. W. A , all being dated before May 22, 1943, are too remote and do not show a present substantial interest , u bile on the other hand , 49 of the 51 designa- tions submitted'by the Progressive were signed after May, 28 , 1943 , and expressly revoke any prior authorization . This contention is without merit The possible duplication of des!gnations raises a doubt as to the intent of the employees with respect to representa- tion which can best be resolved by an , election. We also note that the contract between the Company and the Progressive provides for a closed shop See Matter of Service Wood heel Company, Inc, 41 N L R B 45 , and cases cited therein . THERMAL COAL COMPANY 437 the Association consisting of all the production and maintenance employees of the coal operators who are members of the Association. The contract between the Association and the Progressive recog- nizes the Progressive as the exclusive bargaining agent representing the employees of the members of the Association. The bylaws of the Association provide that it shall negotiate all labor agreements on behalf of its members. The Company and the Progressive claim that by reason of the fact that the Company has for the past 2 years adopted, in substance, the provisions of the master contract between the Association and the Progressive, and that prior to any claim of majority representation made by the U. M. W. A., the Company applied for membership in the Association, the single employer unit sought by the U. M. W. A. is inappropriate. Where there has been a long history of collective bargaining on an association basis, the Board has dismissed petitions seeking a single employer unit.' In the instant case, however, there has been a history of collective bargaining on a single employer basis for more than 2 years.5 In view of that fact we are of the opinion that a single employer unit may appropriately be established despite the present membership of the Company in the Association; and we hold that the determining factor is the desire 'of the employees themselves. We conclude that an election should be held among the production and maintenance employees of the Company, including the inside truck ,driver, but excluding office and clerical employees, outside truck driv- ers, the mine manager, assistant mine manager, top foremen, and any other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action," to determine whether they desire to be represented by the U. M. W. A., by the Progressive, or by neither union. Upon the results of this election will depend in part the determination of the appropriate unit for the purposes of collective bargaining. If a majority of such employees choose the IT. M. W. A., we shall hold that they constitute an appropriate bargain- ing unit, and we shall certify the U. M. W. A. as their exclusive bar- ,aluing, representative. 'If, however, a majority qf, such employees cast their ballots for the Progressive or for neither union, or if the votes cast for the Progressive and for neither union together constitute ' See Matter of Alston Coal Company , 13 N. L R B - 683; Matter of Stevens Coal Com- pany, 19 N. L R B. 98 c The Company had knowledge of the organizational efforts of the U M W . A at least 1 month prior to the time it became a member of the Association Moreover, the U. M. W A. made its claim upon the Company prior to the date of the Association's acceptance of the Company into membership. 9 The parties agreed that in the event the Board finds the single employer unit to be appropriate, then the unit established by the contract between the Company and the 'Progressive shouhi be the basis for the Board's finding in this respect The voting group describ,,d above conforms substantially to this agreement of the parties. 438 DECISIONS OF NATIONAL LABOR RE[LATIONs BOARD a majority, we shall conclude therefrom that these employees do not desire the single-employer unit and we shall dismiss the petition of the U. M. W. A. In view of the absence of a petition by the Progres- sive requesting a certification of representatives in the unit it here claims to be appropriate, it will not be necessary, if a majority of the employees in the voting group choose the Progressive, to determine that any unit is appropriate or whether the Progressive has been designated by a majority of the employees in the unit.? V. THE DETERMINATION OF REPRESENTATIVES At the present time the Company is operating at less than its total capacity. In consequence thereof, approximately half of its full com- pl'enient of employees works during any given week. The parties are agreed however, and we find, that all employees including those tem- porarily laid off shall be entitled to vote. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the voting group who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. , DIRECTION OF ELECTION By virtue of and pursuant to the poR-er vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, 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 bf collective bargaining with Thermal Coal Co., Galesburg, Illinois, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Thirteenth region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among all the production and maintenance employees of the Company, including the inside truck driver, but excluding office and clerical employees, outside truck driv- ers, the mine manager, assistant mine manager, top foremen, and any other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, who were employed during the pay-roll period immediately preceding the date of this 7 See Matter of Bun Shtpbwilding & Drydoek Company, 14 N. L. R B. 292 ; Matter of L B. Lockwood Company. 16 N L R. B. 6.5; and Matter of General Petroleum Corporation of California, 39 N. L. R. B. 1180. THERMAL COAL COMPANY 439, Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause, to determine whether they desire to be represented by United Mine Workers of America, or by Progressive Mine Workers of America, District No. 1, affiliated with the American Federation of Labor," for the purposes of collective bargaining, or by neither. 8 A request to appear thus on the ballot is hereby granted.