Clinchfield Coal Corp.

I In the Matter Of CI.INCHFIELD COAL CORPORATION and UNITED MINE' WORKERS OF AMERICA, DISTRICT 28 Case No. C-0579.-Decided July 21, 1913 DECISION AND ORDER On April 7, 1943, the Trial Examiner issued his Intermediate Re- port in the above-entitled proceeding, finding that the respondent had engaged in' and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions. Oral argument, in which the respondent and the Union participated, was held before the Board on June 15, 1943. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions .and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner, with the exceptions and qualifications noted below : 1. The Trial Examiner found that the respondent violated the Act by certain specified acts and statements of its supervisory employees. We agree, and find further that following the execution of the settle- ment agreement of July 16, 1942, the respondent engaged in other similar acts and conduct. Thus, after the consent election of August 15, 1942, according to the uncontradicted testimony of employee C. B. Layne, Section Foreman John Long suggested to him that inasmuch as Layne had apparently dropped his interest in the Union he (Layne) could thereupon influence other employees to do the same. Also uncontradicted is the testimony of employee Merle Rose to the effect that in December 1942, after the Union had lost the consent election, Section Foreman Long said to him, "You fellows are all sore, just as sore as hell, because you lost the election; and you must realize that if you had-a won, that we would have had to get just as tough as hell on you." Employee Elbert Lyons also testified, without con- , 51 N. L. R. B., No. 100. 539 ,540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tradiction, that in November 1942, Foreman Fred Stallard told him that "he. ( Stallard) didn't see why the people didn't line up and join the independent union"; 'that there were "two things" he had against the Union; and that in view of the- favorable treatment accorded .Stallard by the respondent he didn't see why one would want to join the Union "if the Company is that good to a man." We find that by the aforesaid acts and statements of the respondent's' foremen, who were admittedly supervisory employees, the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The Trial Examiner found that the respondent's refusal be- tween December 9 and 14, 1942, to furnish rock cars to the coal load- ers in the section of its No. 9 mine known as 1st left off 6th right, constituted interference with, restraint, and coercion of 'the em- ployees, within the meaning of Section 8 (1) of the Act. We agree and-so find. The complaint, however, alleges that by its refusal to furnish rock cars as aforesaid, the respondent also violated the Act within the meaning of Section 8 (3). The record shows that, as a consequence of the respondent's discriminatory refusal as aforesaid, the employees in question were prevented from working during a, part of the period from December 9 to 14, 1942, and thus sustained a partial loss of earnings. It is clear, and we find, that the respond- ent's conduct in this respect constituted discrimination in regard to- a condition of employment and thereby discouraged membership in the Union in violation of Section 8 (3) of the Act. 3. In his discussion of the strike of December 14, 1942, the Trial Examiner states that the respondent, in precipitating the disputes with reference to the -night shift and the rock cars, pursued a policy designed to provoke a strike for the purpose of discharging the union leaders. In our view of the case itt is unnecessary to determine the respondent's ultimate purpose in committing the unfair labor prac- tices set forth- in the Intermediate Report and hence we make no finding in this respect. It is clear, and we find, that the strike of December 14, 1942, was caused by the respondent's commission of said unfair labor practices. 4. The Trial Examiner did not consider the evidence of the alleged misconduct of the discharged employees which was not reported to General Manager Adams or which allegedly occurred after their dis- charge, on the theory that such misconduct "could have had no bear- ing upon the discharge." In our opinion, however, such evidence is relevant in determining the remedy to be adopted. We have con- sidered all of the testimony 1 with regard to the alleged misconduct i The respondent does not contend that it was at any time prevented from adducing evidence as to such alleged misconduct. CLINICHFIELD COAL CORPORATION 541 of these employees and find nothing in their behavior which would lead us to vary or deny the normal remedy of reinstatement with back pay. . 5. The Trial Examiner found that the respondent discriminated in the hire and tenure of employment of 10 of the strikers. We agree and so find. Beginning with the second day of the strike, which commenced on December 14, 1942, the respondent served upon the 10 men in question a notice, entitled "Notice of Discharge," which stated that the men "are discharged, and no longer have any rights on the Company's property, and are forbidden to trespass there." While the remaining strikers began to return to work on the morning of December 16, the discharge notice made it clear to the 10 men in question that the respondent would under no circum- stances reemploy them. Seven of the men were served with this notice on December 15 after the time when their regular shift would have terminated; the remaining 3 were served the following day, December 16. Under these circumstances, we shall order that the back-pay remedy as to all 10 shall run from December 16, 1942. 6. We have found that, during the period between December 9 and 14, 1942, the respondent discriminated in the condition of employ- ment of the coal loaders employed in section 1st left off 6th right in respondent's No. 9 mine. These coal loaders are as follows : Hoston Dotson,2 Roy Bauswell, Orbie Turner, James Wright, Dugan Vanover, and Edgar Edwards. The record shows that these em- ployees submitted claims to the respondent for loss of wages in- curred on December 10 and 11, 1942, because of the aforesaid dis- crimination against them. In order to effectuate the purposes and policies of the Act, we shall order that the respondent make each of them whole for any loss of pay he may have suffered by reason of the respondent's discrimination by payment to each of a sum of money equal to the amount he normally would have earned as wages on December 10 and 11, 1942, less his net earnings during said period. Since the above-named employees worked on a piece-work basis; we conclude that the purposes and policies of the Act will best be effectuated by accepting the average daily earnings of each dur- ing the 4-week period immediately preceding December 10, 1942, as the amount which each, would have earned on each of the days on which the respondent discriminated against him. 7. The Trial Examiner has recommended the reimbursement to each employee of any amounts which the respondent has deducted from his wages for dues and fees in the Association since July 5, 1935. We are of the opinion, and shall order, that such reimbursements be lim- S Also referred to in the record as Hasting Dutton. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ited to the period from January 26, 1942, to July 16, 1942, the period in which there was in effect a closed-shop agreement between the re- spondent and the Association. By means of this closed-shop agree- ment, the employees were compelled to become and remain members of the Association, a company-dominated and supported organization. The check-off provision, a device by which the respondent assured the financial stability of the company-dominated and supported organi- zation, could no more be avoided by the employees than could the compulsory membership requirement. We find that the monies thus deducted from the wages of the employees constituted the price of retaining their jobs, a price coerced from them for the respondent's purpose of supporting and maintaining the organization which the respondent had dominated and supported in order to thwart bona fide representation. We further find that, as a result of the imposition of the illegal closed-shop and check-off requirements, the employees suffered a definite loss and deprivation of wages equal to the amounts deducted from their wages and paid' over to the Association. It is appropriate that the employees be made' whole by reimbursement of amounts exacted from them for illegal purposes. We find that in these circumstances,3 the effects of the unfair labor practices may be fully remedied and the purposes and policies of the Act may be completely effectuated only by restoring the staters quo. Hence we shall order the respondent to reimburse its employees for the amounts deducted from their wages during the life of the closed-shop contract.4 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Clinchfield Coal Corpora- tion, Dante, Virginia, and its officers, agents, successors and assigns, shall : 1. Cease and desist from : (a) Discouraging membership- in the United Mine Workers of America, District 28, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; 8 The propriety of an order requiring reimbursement of dues deducted from wages depends upon the particular circumstances of the case. In the particular circumstances of this case, we regard the dues reimbursement requirement peculiarly "adapted to the situation which calls for redress." N. L. R. B. v. Mackay Radio & Telegraph, Co., 304 U.• S. 333, 348; Virginia Electric & Power Co. v. N. L. R. B, 139 U. S. 153 , affirming 132 F. (2d) 390 (C. C. A. 4) ; Cf. Matter of Abraham B. Karron, d/b/a Pennsylvania Handbag Frames Manufacturing Company, 18 N. L. R. B. 838, 862 ; note 27 • See Virginia Electric & Power Co. T. N. L. R. B. See footnote 3, supra. CLnNCHFIELD COAL CORPORATION 543 (b) Dominating or interfering with the administration of the Dante-Clinchco Independent Union, Inc., by whatever name it may be known or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to the Dante-Clinchco Independent Union, Inc., or to any other labor organization of its employees; (c) In any other manner interferring with, restraining, or coercing its employees in the exercise of the 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) Withhold all recognition from and completely disestablish the Dante-Clinchco Independent Union, Inc., by whatever name it may be known, and the Clinchfield Employees' Association, Inc., in the event the latter-mentioned organization shall at any time here- after function as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages; hours of employment, or other condi- tions of employment; (b) Reimburse each of its employees for all fees and dues, if any, which it has deducted from his wages on behalf of the Clinchfield Employees' Association, Inc., from January 26, 1942, to July 16, 1942; (c) Offer to Walter Burchett, Tom Rakes, Paris Mullins, Elbert Lyons, Charle's Mabrey, Ace Rudder, Swin Rose, Elva Rose, Harda- way Baker, Corbett Owens, Ivan Rose and Harve Johnson immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (d) Make whole each of the above-named employees for any loss of earnings he may have suffered by reason of the respondent's dis- crimination against him by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of the respondent's discrimination against him to the date of such offer of reinstatement, less his net earnings during said period, in accordance with the provisions set forth in paragraph 5 of the Decision herein, and in accordance with that section of the Inter- mediate Report entitled "The Remedy"; (e) Make whole Roston Dotson, Roy Bauswell, Orbie Turner, James Wright, Dugan Vanover, and Edgar Edwards for any loss of earnings each may have suffered on December 10 and 11, 1942 by reason 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the respondent's discrimination against him by payment to him of a sum of money equal to that which he would normally have earned as wages on said days, less his net earnings during said period, in accordance with the provisions set forth in paragraph 6 of the Decision herein; (f) Post immediately in conspicuous places throughout its mines, company stores and theatres, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that.the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and (3) that the respondent's employees are free to become or remain members of the United Mine Workers of America, District 28, and that it will not discriminate against any employee because of membership in or activity in said organization; (g) Notify the Regional Director for the Fifth Region, (Balti- more, Maryland) in writing within ten (10) days from the date of the receipt of this Order, what steps the respondent has taken to comply therewith. INTERMEDIATE REPORT Messrs. Earle K. Shawe, Albert P. Wheatley, and Keith W. Blinn, for the Board. Messrs. William A. Stuart, of Abingdon, Va., Walter Lee Rush of Clintwood, Va., and M. M. Hewer, of Norton, Va, for the respondent. Messrs. B. F. Howard, of Welch, W. Va., Walter N. Polakov of Washington, D. C., had John Saxton and W. F. Minton of Norton, Va., for the Union. Mr. W. W. Hillman, for the Independent. STATEMENT OF THE CASE Upon a second amended charge duly filed January 19, 1943, by United Mine Worker's of America, District 28, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint dated February 6, 1943, against the Clinchfield Coal Corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), 'and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices the complaint, amended as herein- after described, alleges in substance: (1) that in October 1933 the respondent formed the Clinchfield Employees' Association, Inc., herein called the Association, and 'at all times between October 1933 and October 21, 1942, dominated and inter- fered with the administration of the -Association and contributed financial and other support to it; (2) that on or about October 21, 1942, the Association changed- its name to and continued to function as Dante-Clinchco Independent Union, Inc., hereinafter called the Independent; (3) that the Independent succeeded to the Association without any line of fracture and with the active support and assist- ance of the officers and agents of th'e Association and of the respondent ; (4) that CLINCHFIELD COAL CORPORATION 545 the respondent encouraged and interfered with the formation of the Independent and, since October 21, 1942, has dominated and interfered with the administration of the Independent, and has contributed financial sand other support to it; (5) that the respondent, since July 5, 1935, has urged, persuaded, and warned its employees to join and assist the Association and its successor, the Independent, recognized the Association as the exclusive collective-bargaining representative of its employees at its Dante and Clinchco mines, entered into collective bargaining agreements with the Association, and has deducted dues and assessments from the wages of its employees on behalf of the Association; (6) that the respondent, since July 5, 1935, has urged, persuaded,'and warned its employees not to join or remain members of-the Union; (7) that the respondent solicited and caused to be solicited votes 'among its employees against the Union in an election conducted by the Board August 15, 1942; (8) that the respondent refused to re-employ Walter Burchett and Tom Rakes on October 10, 1942, because they joined and assisted the Union; (9) that the respondent, between December 9 and 14, 1942, refused to supply "rock cars" to its employees in one section of No. 9 mine because these employees joined and assisted the Union; (10) that as a result of the respondent's unfair labor practices employees at Nos. 7, 8, 'land 9 mines ceased work concertedly on December 14 and 15, 1942, and that said cessation continued in effect until December 20, 1942; that the respondent on December 15, 1942, discharged the following named employees because they joined and assisted the Union and because they engaged in concerted activities with other employees for the purposes of collective bargaining or other mutual aid or protection : Paris Mullins Elbert' Lyons Charles Mabrey Ace Rudder Swin Rose, Elva Rose Hardaway Baker Corbett Owens Ivan Rose Harve Johnson and that by the above described conduct the respondent has interfered with, and is interfering with, the exercise of rights guaranteed to employees in Sec- tion 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent, the Union and the Independent. The respondent, by its answer verified February 13, 1943, denied all allega- tions relating to the Association insofar as they apply to a period since July 16, 1942, and alleged that insofar as they apply to the period before that date they are immaterial, since on that date the respondent entered into a settle- ment agreement with the Board and the Union, and that this agreetxent was consummated. By its answer the respondent denied having engaged in any unfair labor practices with, respect to the Independent. It further denied hav- ing engaged in any unfair labor practices as to Burchett and Rakes, and as to the above-named employees discharged on December 15, 1942. The respondent affirmatively alleged that the request for-"rock cars" was not made in good faith, but as a part of a plan evolved by the -10 employees discharged on Decem- ber 15 to instigate a "wild cat" strike. It also alleged that the strike was "without valid or proper excuse or pretext of any kind " It alleged that the above-named 10 employees were the leaders of the "wild cat" strike, which it alleged was without support of the district officers of the Union, that these employees wrongfully entered upon the respondent's property, seized its equip- ment, ordered its supervisory employees to go home ; and that they were dis- charged as a disciplinary measure. Pursuant to notice, a hearing was held at Clintwood, Virginia, between February 22 and March 17, 1943, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union were represented by counsel, and the Independent by an officer. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. During the hearing a motion by counsel for the Board was granted to strike from the complaint: (1) an allegation that in August 1942 the respondent discriminated as to the employment of Charles Mabrey; (2) an allegation that in July 1942 the respondent discriminated as to the employment of Paris Thomas, (3) an allegation that the respondent has entered into a collective bargaining agreement with the Independent; and (4) an allegation that the respondent has deducted dues for the Independent from the wages of its employees. At the close of the Board's case and the close of the hearing the Trial Examiner denied a motion by counsel for the respondent to dismiss the complaint. Also at the close of the hearing the Trial Examiner granted motions by the Board and by the respondents, re- spectively, to conform the complaint and the answer to the proof. At the close of the hearing opportunity was offered to each party present' to present oral argument before the Trial Examiner. Counsel for the Board and for the Union availed themselves of this opportunity ; counsel for the re- spondent waived it. The oral arguments appear in the official transcript of the hearing. Although counsel for the respondent indicated his intention to file a brief within 5 days after the hearing closed; no brief has been received. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes, in addition to the above, the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Clinchfield Coal Corporation is a Virginia corporation having its principal office and place of business in the town of Dante, Virginia, and is engaged in the mining, sale, and distribution of coal at its mines located in and near Dante and Clinchco, Virginia. The respondent annually purchases supplies valued at about $644 ,670; said supplies consisting generally of mine timbers , explosives , steel rails , ties, mine cars, and repair parts. Seventy percent of such purchases come'from states outside Virginia . The respondent annually mines about 2,282 ,130 net tons of coal within Virginia , 99 percent of which is transported to points outside Virginia. The respondent concedes that it is engaged in interstate commerce within the meaning of the Act .2 If. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District 28, and Dante-Clinchco Independent Union, Inc., are labor organizations, and Clinchfield Employees' Association Inc., was a labor organization, admitting to membership employees of the respondent. 1 Tne representative of the Independent was not present the last day of the hearing. He sent to the Trial Examiner a letter, received that day, stating that he did no wish to present any evidence The letter appears as Trial Examiner's Exhibit No. 8 in the record. 2 These findings are based upon a stipulation entered into between counsel for the Board and counsel for the respondent. CLINCHFIELD COAL CORPORATION 547 III. THE UNFAIR LABOR PRACTICES A. The respondent's mines, principal officials, and operations herein involved The respondent operates mines at both Dante and Clinchco, Virginia, about 25 miles distant from each other. Although the record does not show accurately the number of employees at Dante, there were about'1400 employees at Clinchco, which is mainly involved in this case, on the eligibility list at a Board election conducted in August 1942, as hereinafter described. Since 1933 and until October 1942, Lee Long was vice-president of the respond- ent. Until July 1942 he was also general manager, in charge of. all operations I at both Dante and Clinchco. From 1933 and until July 1942 R. S. Adams was general superintendent with his office at Clinchco. In July he became general manager, and in the fall of the year also became vice-president. Since 1933 and until August 1942 L R. Palmer (sometimes herein referred to as Luke Palmer ) was general mine foreman at No. 9 mine , in Clinchco. In August he became superintendent of the operations at Clinchco. From 1933 until 1942 Gilbert Bailey was a section foreman. In 1942 he became general mine foreman at No. 9 mine. B. The respondent's activities before July 5, 1935 1. Closing of its Crane's Nest mines in 1933 In the summer of 1933, within 24 hours after its employees had joined' the Union-at its Crane's Nest mine, in a nearby county, the respondent closed these operations.' ' Charles Mabrey, previously working at Crane's Nest, sought em- ployment at Dante in October. Long asked him if he had not, been in the Union at Crane's Nest, and Mabrey admitted the fact. Long then made Mabrey and his brother sign a written statement , before giving them ' a job at Dante, that they would not again join the Union while in the respondent 's employ.` 2. Organization of the Association in September 1933 (a) Formation by the respondent, coercion by officials and foremen In September 1933 at a time when the Union was attempting to organize them, management summoned employees, both at its Dante and Clinchco mines, to attend meetings at which Vice-President Lee Long informed them that they were to have 'a labor ,organization of their own. The meetings were held at the company-owned theatre on each of the two company -owned properties. Employees were instructed to attend the meetings by foremen . At Dante, when employee Nathan Collins asked General Mine Foreman Claude Alley if it was compulsory that he be present, Alley replied that if he worked he would have to go.5 Foremen attended both meetings . At each of the two meetings s Addressing members of the Clinchco Employees Association in the fall of 1933, Long stated, "I shut the Crane's Nest Mines down on account of the United Mine Workers and I'll do this the same." 4 The above findings are based upon uncontradicted testimony . Mabrey's discharge in December 1942 is discussed hereinafter. 5 Also at Dante Foreman Rice Thomas told employee Alfred Hamilton to be present ; at Clinchco Section Foreman Fletcher Farmer told employee Mack Artrip that "Daddy" Long wanted "the boys" to attend , Foreman Leonard Sykes instructed employees - Ivan Rose and Harve Johnson to be present ; and Foreman Gilbert Bailey sent employees Tandy Rose, Elbert Lyons, and Paris Mullins to the meeting. 540612-44-vol. 51-36 548 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Long told the employees, in effect, that it was advisable for the employees to have some sort of a labor organization but that he had had his "belly good and full" of the United Mine Workers and knew that this organization would not be suitable for them. He further declared that they could have an organization of their own, with dues much lower than those of the Union , and that such an organization would keep out Union men. He also declared that he would not recognize the Union, but that he had a "man" working on a contract for the inside union. Soon after these meetings management officials , foremen, and employees acting under management's instructions began a campaign of coercing employees at both Dante and Clinchco to sign documents indicating their affiliation with the Association. At Dante Dave Fraizier, then a coal loader, and several other employees were summoned to Long's officer, where the latter gave them sheets of paper with the Association heading upon them,0 and told them to get other employees to sign them. At the same mine property employee Alfred Hamilton was instructed by his foreman , Rice Thomas , to go with him to the home of general electrician Luther Holbrook.7 At Holbrook's home were two other foremen and timekeeper Dan Fox. Holbrook told Hamilton that they were going to form a "union," and wanted him to help. When the employee agreed; Holbrook took him and Fox to the general mine offices, where they obtained Association petitions. After being warned by the foremen not to divulge their connection with the matter, Fox and Hamilton visited the homes of employees and obtained their signatures . The next morning Hamilton was sent into the mine to sign up other employees while working Following instructions given him by General Foreman Rumgay and other foremen, Hamilton went through the mine and told employees either to sign "or get the hell off the job."' Hamilton was told by Fox, "You will get double-pay for your time." At Clincho R. S. Adams, then superintendent of this property, told employee Wedford Powers that the company was going to "set up" a union, wanted him in it, and warned him to keep away from the Union. Thereafter Powers was asked by Tipple Boss Carl Patton to sign the Association petition. When Powers refused, Patton told him he did not know what the consequences would be. The consequences materialized the following Monday, when Powers was dis- charged, and told by Adams that he did not "need" him s Also at Clinchco Foreman Bailey ordered employee Tandy Rose to circulate the petition in the mine during his working hours. For this work Rose was paid by the respond- ent.10 Foreman Sykes solicited the memberships of employees Ivan Rose and Harve Johnson, and told the latter he must sign if he stayed there. Foreman Claude Alley told employee Nathan Collins to sign the petition, and that he must do so if he wanted to work. Collins did not sign at once, but consulted Long. Long instructed him to sign and Collins obeyed. 0 Frazier testified that he. could' not recall the heading on the papers ; but remembered that it was "concerning our Association" , and that it was "just a kind of introduction" to- get signets Other witnesses recalled only that the name of the Association was at the top of each sheet. 7 Holbrook had charge of the electrical shop and two or three employees, whose work he directed The Trial Examiner finds that he was a supervisor. 8 Fox said, "I 'll go through and they 'll sign or get the hell out one." He canvassed the mine and upon his return told Hamilton , ' I got the boys you couldn't get." 9 Not long before discharging him, Adams earned Powers, who was a "preacher" of the Holiness Church, Church of Jesus Christ, that he was preaching ' too much union" at his services . Just before his discharge Powers joined the United Mine Workers io According to the undenied testimony of Tandy Rose, he was promised $2 80 for solicit- ing signatures in his section of the mine. ' CLINCHFIELD COAL CORPORATION 549 During October 1933 organization meetings were held at the Dante and Clinchco theatres. At meetings in both places Long introduced an attorney who, he stated, was getting a charter for the Association . The employees would be better off with this organization, the vice-president said , and could prevent the Union 'from getting in. Long also told them that the respondent had closed down its Crane's Nest mines, not long before this, because the Union was organizing. The attorney read a contract to the employees and explained its advantages over the Union agreements. (b) Set-up of the organization ; by-laws The Association , thus set up by the respondent and incorporated , adopted bylaws in 1933 which provided , among other things, that : 1. Each member must sign individual orders on the respondent's cashiers for the withholding of monthly dues and assessments. 2. The Association should decide what "attitude " to assume toward em- ployees who did not join it. 3. There would be -one representative for each 65 employees , provided that representatives from Dante and Clinchco should be equal in number. 4. No one could serve as a representative who had not been an employee for at least one year. 5. Dante and Clinchco each - was to have a local president and other officers ; and representatives were to elect the general president and other officers. 6. Disputes were to be submitted for arbitration only with the approval of the respondent's vice-president. These bylaws remained in effect until November 1941 when certain amendments were made. (c) The respondent's interference with, and support of, the Association and its administration Long not only set up and forced the Association upon the respondent's em- ployees, but thereafter dominated the administration of it. In November 1933 Long ordered 2 ,000 Association membership cards and guaranteed payment for them. On November 1, 1933, Bockus and Long met with the officers and representa- tives of the Association and, according to the minutes of that date, "expressed ... their appreciation of the work accomplished by the Employees . . . in the way of organizing the Association." As early as November 26, 1933, it became clearly apparent to employees that in the Association they had but a hollow instrument for genuine collective bargain- ing. The minutes of that date state : some [foremen ] seem to take an attitude of obstruction and in several in- stances have told the men that they did not give e-a damn for the contract, and would do as they pleased. Long presented and explained the contract which was entered into in April 1934 to a mass meeting of employees. Long attended business meetings both of the Association membership and its officers. Long kept himself informed of the financial status of the Association by de- manding an accounting of each local chapter. In November 1934 Long wrote to the respondent 's general counsel for advice as to interpretation and possible amendments of the Association bylaws. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That Long was looked upon by the employees as the real power behind the Association is manifest in the following letter, dated November 23, 1934: DEAR Ma. LONG : On Sat. Nov the 17-1934 the colored Employees, who are members of the Clinchfield Employees Ass'n Had a meeting among them Selves. this meeting, Mr. Long, was for the purpose of finding out if they, the colored members, of Clinchfield Employees ass'n wanted a colord Repre- sentative, and if wanted, State who is wanted. Where as when*the vote was taken I was uanamsily elected for -their Representative. I was not Mr. Long, present in-this meeting. But have been furnished with a written report of Same. Sense the meeting is over, we learnt that Ray Palmer, and Henry Meade, is not Pleased. because they held the meeting, and are going about Speaking their Disaproval of Same. Veing Bussy at work, and not knowing just what Day in the near future, I could appear in person in your Presents, why of course I am useing this Scribbling methord to inform you of their feelings in regard to the actions taken by the colored employees of Clinchfield Employees Ass'n. Yours Very Respectifully (Signed) WILLIAM M. CARR. P. S. If By you a closer interview is Desired if will please me much to Gratify Same. Nov. 1/23/24 Long replied that he would be glad to discuss the matter with the employee. (d) Financial and other support The Association meetings were held in the company-owned theatres without charge. The following succinct memorandum bears witness' to the respondent's sup- port of the Association in making sure that all employees joined. The document came from Long's file. Men working at Mine No. 3 who have not signed up with Clinchfield Em- ployees Association: 0. H Wagner------------------------------------------- Check No.70 " " 83 Walter Woods----------------------------------------- 37 John Edwards---------------------------------------- Company man Ernest Amburgey--------------------------------------- Check No.6 W. L. Rumgay [general foreman] 9/24/34 Mr. Rumgay says all signed (signed) E. E. T. [the respondent's assistant secretary] (e) Contractual relationship between the respondent and the Association On November 1, 1933, the respondent and representatives of the Association entered into a contract covering wages and working conditions. By terms of the contract management retained final authority in the settlement of disputes. Only upon permission of the respondent's vice-president, or other official in charge of operations, could a -dispute be submitted for arbitration. Another contract was executed in April 1934 and thereafter extended to October 10, 1935. The extension provided that the respondent could adjust wages and other conditions of employment to conform to such action as might be taken in ad- s CLINCHF'IELD COAL CORPORATION 551 jacent coal mining districts . The extension also included the above-mentioned terms by which the respondent controlled final settlement of all disputes. (f) Conclusions Although the respondent's activities with respect to the Association before July 5, 1935, are not unfair labor practices , within the meaning of the Act, they are material and relevant in any appraisal of its subsequent activities with respect to the same Association and the Independent. The above findings plainly establish that the respondent inaugurated and Installed the Association as a means of combatting the Union and preventing its employees from choosing their own bargaining agent. Further evidence that this was the real purpose of the Association is contained in the following ex- cerpt - from a letter addressed to the Association by Wilson , Burns & Wilson, attorneys of Lebanon , Virginia. This is to advise you that we have the bill for an injunction prepared and ready to present to the Court upon a moment 's notice. If the mem- bers of the United Mine Workers of America, or any one else , comes into your territory and endeavors to intimidate the members of your Union in an effort to force them, or any of them, to leave your union, or give up their work . . . an injunction will be granted. The Circuit Court, or the Judge thereof in vacation , has already directed the High Sheriff and all of his Deputies to be present tomorrow ready to take care of the situation. - 'Two days later, Long replied as follows : The papers that you sent me yesterday are acknowledged with thanks. The meeting at West Dante was more or less of a flop . We expected rather serious trouble this morning, but there was no disturbance. And that Long acknowledged his creation of the Association is established by the exchange of letters between himself and the head of the Stanley Furniture Company, of Stanleytown, Virginia. Stanley thus, in part, wrote to Long: I would appreciate it if you would give me an outline of the organization proceedings, by-laws, etc., of the company union that was organized with your company some time last year.... Long replied, in part : In response to your request, am enclosing herewith copy of Charter and By-Laws of the Clinchfield Employees Association , Inc., with request that you do not give undue publicity to the plan or the fact that you have been furnished with the information. 3. Other anti-Union activities of the respondent before July 5, 1935 (a) The respondent's discharge of Union members in 1933 - Coincidently with its establishment of a company -dominated organization to prevent its employees from exercising their own choice of a bargaining agent, the respondent engaged in other summary action to discourage membership in the Union. In November or December 1933 several of the respondent's employees at Clinchco joined the Union and attended a meeting which was spied upon by Adams and Foremen Luke Palmer, Pete Kruze, and Stuart Smith .11 Within the 11 The employees first gathered at a home on company -owned land Adams and other officials caused them to be evicted from this place, and they reconvened at a farm which 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD next 2 days approximately 27, employees were discharged, including Elbert Lyons, Ivan Rose, Walter Burchett, Tom Rakes, and Paris Mullins; all of whom had attended the meeting. Lyons was rehired a few days later, but not until after he had promised Adams to leave the Union. Ivan Rose was re-employed about 4 months later. Burchett was rehired about 6 week later, when he was told by Adams that he had been laid off because he went to the Union meeting. Rakes and Mullins were rehired 2 weeks later. Rakes was rebuked for keeping bad company in associating with Union leaders. When rehiring Mullins, Adams told him he thought he "had more damned sense" than to "mess up" with union organizers, most of whom, he said, were "foreigners." Before being reinstated, Mullins assured Adams that he would drop the Union." (b) The respondent's interference with the N. R. A. election held'in 1934 In 1934 when the N. R. A. conducted an election among the respondent's em- ployees, with the Union and the Association on the ballot, the respondent coerced and restrained its employees in their choice of a bargaining agent. The night before the election at Dante, a macs meeting was held at the company-owned theatre. Vice-president Long instructed the employees, "When you go down there to vote tomorrow, vote that we can have a union of our own here. We don't need a foreign union to come in here and run our business. We can run it ourselves." During the same year Long gave Foreman Nathan Collins a high-powered rifle and cartridges and ordered him to keep Union members off the respondent's mine property at Dante. About this same time he told Collins that he would rather be dead than to have some one else come in and run his mine. (c) Conclusions Although the respondent's activities in discharging Union members and inter- fering with an election conducted by a government agency before July 5, 1935, do not constitute unfair labor practices within the meaning of the Act, they are both relevant and material to the appraisal of the respondent's conduct thereafter with respect to its discharge of Union members in 1942 and with respect to the Board election of the same year. C. The respondent's anti-Union activities after July 5, 1935 1. Domination and interference with the administration of the Association (a) New employees signed up in employment office at Clinchco ; check-off of dues 0 The respondent continued to dominate and interfere with the Association after July 5, 1935, the effective date of the Act. At its Clinchco mine, from July 5, 1935, until about December 1, 1941, whenever a new employee was placed upon the pay roll he was also given an Association membership certificate to sign, together with other employment documents, by .W. R. Sparks, the respondent's timekeeper in its employment office. This certifi- cate" served as authority for the respondent to deduct the Association dues and was not on company property . Whereupon Adams, from the public highway, observed them through binoculars. 11 The discriminatory discharge or refusal to reemploy each of these employees in 1942 Is hereinafter discussed . The above findings are based on undisputed testimony. 18 From 1933 to 1941, inclusive , this "Membership Agreement" read as follows : I . . . . do hereby accept membership in the Clinchfield Employees Association„ Inc., and do hereby agree to abide by the laws, rules and regulations of the Association so long as I remain a member thereof; and I do hereby assign to the-said Association, from my wages with the Clinchfield Coal Corporation, any and all dues and/or CLINCHFIELD COAL CORPORATION 553 assessments from the employee's wages. For about a month after Sparks left the respondent's employment office in December 1941 the same procedure was fol- lowed by his successor, Basil Wright. This arrangement was then terminated. Although Sparks received small compensation from the Association for his serv- ices in signing up new employees, he performed them in the employment office, during his working hours, and without deduction from his pay by the respondent. At Dante the procedure was different. New employees were signed up by the secretary of the Dante chapter of the Association." Until the spring of 1942 the Association kept no records of its membership. The respondent, once a month, had simply paid to the Association the dues deducted during the period, for employees who had signed the "membership agreement." Upon the suggestion of counsel retained by the Association early in 1942 the respondent thereafter provided the organization with a check-off list, giving the employees' names and pay-roll numbers. The respondent continued the practice of check-off until the middle of July 1942 when, as found below, it posted notices of disestablishment of the Association. (b) Domination of bargaining The record contains many instances of the respondent's domination of the Association and its officers. As heretofore noted, both the organization bylaws and the periodical contracts empowered management to make final determination of all disputes and grievances. The contracts were prepared and presented by management to the Association representatives. In 1937 the Association promptly accepted the contract pre- pared by the respondent. In 1939, however, when the respondent submitted for the Association signatures a contract which lowered certain wage provisions, the representatives demurred and would not sign the contract for 3 days. On the third day of the "negotiations" Long told the employees that he wanted the contract signed that night, and that if it was not signed he would shut down the mine. The representatives then signed the contract. During the same year, when the Association decided to revoke the member- ship of a member because he was a foreman,,Long instructed the organization to return all of the employees' back dues. The secretary obeyed. Also during 1937, upon request of one of the representatives, Long wrote into the contract a provision that "thirty minutes time shall be given to all workers for their lunch period." When one of the committeemen, Elva Rose, and other mine motormen and brakemen took this lunch period, Adams laid off the commit- teeman for one day and then sent for him. Adams demanded, "Son, what in the Hell are you trying to pull off up at the mines?" Rose replied, "I don't reckon anything, why?" Adams declared, "Because you are mine committeeman you are not running the mines." Rose answered, "I know it, and I am just going by the assessments, not to exceed the sum of 50¢ per month, which may be assessed by the duly constituted officers of the said Association,, and do hereby further direct the Clinchfield Coal Corporation to deduct, any such dues and/or assessments from my wages and pay same to the Treasurer of said Association. . . During 1942 and until the dissolution of the Association as a corporation, as hereinafter described, the "membership agreements" contained the additional provision that a "Membership Fee" of five dollars ($5) was to be deducted from the employee's wages. This finding is not inconsistent with Respondent's Exhibit 25 which contained a list of employees who had not had dues checked off for the Association since 'the respondent's vice- president Muse admitted that -this list was representative only of the employees at the Dante mine. 14 The above facts as to the signing up of new employees at Clinchco and Dante are mainly based upon a stipulation between the parties. 554 DECISIONS OF NATIONAL LABOR RELAT'IONNS BOARD contract." Adams then said, "To Hell with the contract, I am the boss here, and if I don't like it, I can move you out of the camp that quick . . . If you want to work you get to work up on the hill and keep your mouth shut and go to work." In 1939 Swin Rose, then president of the Association, sought the reinstatement of an employee who had been discharged. Adams would not discuss the griev- ance with Rose, but told him, "Committeeman or no committeeman, or president, I am boss here." And in 1940 Foreman Luke Palmer advised employees not to vote for a certain candidate then running for the office as president of the Association because he also belonged to the Union. (c) Financial and other support From January 1937 until April 1942 the respondent donated three pairs of safety shoes as prizes at each monthly meeting of Association members. From 1935 until 1942 the respondent's pay-roll department periodically furnished the organization secretary with a list of, new employees. Long continued to give his support to the Association in maintaining its mem- bership. In August 1941 he sent the following "confidential" memorandum to the Association secretary-treasurer. My attention was called the other day to the fact that 72 of our Dante employees who are eligible to membership in your Association are not now listed as Dues paying Members. It is my thought that you will want to give this attention. (d) Employment of Association representatives as the respondent's agents in activities tending to discourage Union membership It has been noted above that Long and other management officials announced openly in 1933 that the Association was being formed to prevent Union organization. In August 1941 at a meeting of Association officers and committeemen in Adams' office, Long told them that some of the employees at Clinchco were taking part in the Union camps ign and must be dealt with. He stated that while the company officials could not stop it, the Association officers and committeemen could. He urged that they report to him "everything that was going on," and to recommend active Union employees for "cut-off slips." He declared that then the company would be justified in "erasing" these men from the pay roll. After Long and Adams left the meeting, the committeemen decided not to "cut the men off" without a chance, but selected one of their number, Luther Sauls, to approach the men in the mines-and try to persuade them to drop the Union. Sauls went to V. C. Layne, Emory Vanover, Cecil Hay, Elbe Mullins, Woodrow Hill, and Hubert Adkins, but each refused to leave the Union. They were then "noticed up" for trial before Association officers. The "trial" was held at the Clinchco theatre, with an armed deputy sheriff guarding the door. Although these employees were warned that unless they dropped their Union activity they would be "cut off," none was discharged immediately." Soon after the trial, however; section Foreman John Long came to Layne, who also was a "preacher," and told him that since he had dropped his interest in the Union, he should influence others to do the same 1° "According to the uncontradicted testimony of Mack Artrip, Adams thereafter met with several of the committeemen, and, when informed of what had happened at the "trial,". commented, "You done what I would have advised you to have done if I could % have told you." 16 During the same conversation Long advised Layne to work 8 or 9 hours a day and only "put down" 6 or 7 hours, so that he could work Saturday and thus earn more money. CLINCHFIELD COAL CORPORATION 555 On Jan'lary 6, 1942, however, the Association formally requested management to discharge Cecil Hay, then leader of the Union local, because of his Union activity. Hay was discharged the next day. (e) Contracts; the closed-shop agreement of January 1942 The contract of October 1935, above-mentioned, was extended to April 1937; thereafter new agreements or extensions were made covering the period from 1937 until on or about July 16, 1942. Essential features of the original contract, executed in 1933, were retained in each subsequent agreement. As found in the section next above, the respondent discharged the head of the Union local on January 7, 1942, pursuant to a request made by the Asso- ciation on January 6. Apparently concerned by the possible consequences of this summary action the respondent, within a few days after the discharge, had prepared and signed a "closed shop," or maintenance of membership, "addendum" to the agreement dated July 1, 1941.3 The Association did not ask for the closed-shop provision, nor was it discussed at any meetings of the representatives before January 26, 1942. No negotiations leading to such a contract were held before that date.18 (f). Events, leading toward dissolution of, the, Association, September. 23,1942 On July 16, 1942, the respondent, the Union, and a representative of the Board entered into a stipulation looking toward the settlement of certain charges, theretofore filed with the Board by the Union, in Case No. V-C-1253. This 17 The addendum provided that the respondent "will hire only members of the Associa- tion or persons eligible to such membership, and will not retain in its employment any person whose membership in the Association is forfeited." 18 These findings are based upon the testimony of the secretary of the former Associa- tion, and upon the minutes of the meeting of January 26, 1942, as well as the Association's letter to the respondent of January 6, 1942 Nor are these findings disturbed by a stipula- tion of facts entered into between counsel for the Board and William A Stuart, counsel for the respondent which states, in part„ that the president of the Association and "others" came to his office on January 16, 1942, "and employed me to prepare a form of addendum to the existing contract between Clinchfield Coal Corporation and Clinchfield Employees Association. I discussed with them the form of addendum which they wanted, which was a provision for maintenance of union membership . They stated that the addendum had been agreed upon verbally with the company on November 17, 1941. I prepared for them the form of paper which I deemed appropriate dated November 17, 1941, which is Board's Exhibit No. 18 B." The foregoing statement of Stuart is at variance not only with testimony and documentary evidence upon which the above findings rest, but also with a statement appearing in a letter from a Field Examiner of the Board to Union officials dated April 4, 1942,-a letter offered in evidence by the respondent. The latter statement, according to the letter made to the Field Examiner on April 1, 1942, is as follows : "With regard to the discharges of Cecil Hay and Arthur Terry, Mr. Stuart stated that there was no question as to their having been discharged for openly supporting and advocating adherence to the United Mine Workers. He stated that this was done by the company as the result of representations made by the Association officers and was carried out in accordance with an addenda to the contract with the Association formerly negotiated on July 1, t941, the addenda to such agreement being signed on November 20, 1941, which addenda provides for a closed-shop for members of the Association." Had there been even an oral agreement between the Association president and the respondent at any time before January 6, 1942, it is reasonable to believe that the Association's de- mand of that date that Hay be discharged would have been predicated upon its provisions, yet the president's letter of January 6 makes no mention of such an agreement Except for the obvious attempt on the part of the respondent to cover, with a pretense of legality, its discharge of Hay, which had already occurred , there is no reasonable excuse for ante- dating the addendum. - 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stipulation provided, among other things," for the disestablishment of- the Asso- ciation as the bargaining representative of any of its employees . By terms of the same stipulation the respondent agreed not to : in any manner dominate or interfere with the administration of the Clinch- field Employees Association, Inc., or with the formation or administration of any other labor organization of its employees , and will not contribute financial or other support to the Clinchfield Employees Association , Inc., or any other labor organization of its employees. and also not to : Encourage membership in . . . any other labor organization of its employees, or discourage membership in-the United Mine Workers of America , District 28, . . . by discriminating in regard to their hire or tenure of employment ; [or] in any other manner interfere with , restrain , or coerce its employees in the exercise of their right of self organization , . . . as guaranteed in Section 7 of the National Labor Relations Act. On July 17 the respondent posted notices stating, among other things, that it "has withdrawn recognition from and completely disestablished " the Associa- tion as the collective bargaining representative of any of its employees, and that its agreement with the Association had been abolished and cancelled." On July 24 the respondent notified the Regional Director , Fifth Region, stating, among other things, that it had withdrawn recognition from the Association and had posted notices to this effect. On August 6 the Regional Director informed the respondent that the Board had approved the settlement agreement . The Association was finally dissolved, by order of the Circuit Court, Russell County, Virginia , on September 23, 1942. 2. The respondent's interference with the Board election of August 15, 1942 (a) The consent election Pursuant to a consent-election agreement, dated July 16, 1942, between the re- spondent and the Union , the Board held an election on August 15, 1942, among employees of the respondent at its Clinchco mines. Of 1305 valid votes counted, 527 were cast for the Union and 778 votes were cast against the Union. On August 19, within the period prescribed by the Board 's Rules and Regulations, the Union filed, with the Regional Director, objections to the conduct of the election . On February 4, 1943, the Regional Director issued a Report on Consent Election and Objections Thereto, in which the objections were sustained and the results of the election were voided. (b) Conduct of the Association Both before and immediately after entering into the agreement for an election the respondent, through its officers, supervisors , and the Association , began ari intensive campaign to defeat the Unioi at the election. Between May and August 15 Attorney Thompson convened officers and com- mitteemen of that organization to discuss various means of defeating the Union at the election. At these meetings it was also decided that , if the Union should lose, another independent organization would be set up. Thompson prepared and had printed the following notice : N 19 The stipulation also provided for the offer of reinstatement to eight employees, and the payment to certain of them of sums of money , including Cecil Hay, whose discharge has been referred to above. CLINCHFIELD COAL CORPORATION 557 NOTICE The Clinchfield Employees' Association can no longer act as the bargain- ing agency for the Clinchfield Employees . As you know this Association was organized before the present labor laws were made. The Labor Board has recently held that the Association was not properly organized as re- quired , by the present law, and that it was not functioning as required by the 'present law, and that it could no longer act as the bargaining agent of the Clinchfield Employees. This action was taken by the Labor Board upon the complaint made by District 28 of the United Mine Workers ( C. I. 0.). THE EMPLOYEES OF THE CLINCHFIELD CORPORATION 'HAVE THE ABSOLUTE RIGHT TO FORM ANOTHER INDEPENDENT OR- GANIZATION OR ASSOCIATION IN ACCORDANCE WITH THE RE- QUIREMENTS OF THE PRESENT LAW TO ACT AS THEIR BARGAIN- ING AGENT. You do not have to join any labor organization. The United Mine Workers ( C. I. 0.) claim that a majority of the employees at Clinchco want the United Mine Workers as their bargaining agent. The Clinchfield Corporation did not agree that a majority of the employees at Clinchco wanted the United Mine Workers (C. I. 0.) as their bargaining agent. An election has been called by the Labor Board to determine this question. If a majority of the employees vote against the United Mine Workers in this election then a new independent association can be formed by the Clinchfield Employees as the bargaining agent. The United Mine Workers do not claim to have a majority of the employees at Dante, so for that reason no election will be held at Dante. The employees at Dante have a perfect right to form a new independent association to represent them. ' The Clinchfield Employees' Association has been more successful over the past years in working out a higher wage scale for the employees than the United Mine Workers have for their members, the dues paid by the members of the Association have been small compared with what you would have to pay in the C. I. 0., the dues have been kept at home and used for the benefit of the sick and needy , and the organization has been controlled by local employees. We feel that we have had good success in bargaining with the management of the Clinchfield Corporation and we believe that when a new independent association or organization is formed that it can be more successful in securing benefits for the employees than could the C. I. O. if it were bargain- ing for the employees. WE URGE ALL OF THE FORMER MEMBERS OF THE CLINCHFIELD EMPLOYEES' ASSOCIATION TO VOTE AGAINST THE UNITED MINE WORKERS AS THE BARGAINING AGENT FOR THE EMPLOYEES AT CLINCHCO, AND AFTER THE ELECTION IS OVER PREPARE TO OR- GANIZE A NEW INDEPENDENT ORGANIZATION OR ASSOCIATION TO REPRESENT THE EMPLOYEES , BOTH AT CLINCHCO AND AT DANTE. CLINCHFIELD EMPLOYEES ' ASSOCIATION At least two packages of these bulletins were delivered to the respondent's general offices at Dante, and later were distributed from the Association office. Copies were posted in the company store and distributed throughout the camp 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Dante. At Clinchco these bulletins were posted on bulletin boards and de- livered from home to home in the company-owned town. Thompson also suggested and obtained reprints of an article entitled, "Revolt in ,the C. I. O.,"-which had appeared in,,"Factory-Management Land Maintenance."' The article purported to describe the strike of anthracite workers in Pennsylvania against John L. Lewis, head of the Union. These reprints, paid for by the Asso- ciation, were also distributed and posted at Clinchco. Various other types of anti-Union literature were prepared, paid for, and distributed by the Association. Since the funds of the Clinchco chapter of the Association were then unavail- able because of an injunction obtained by some of the employees, the Dante chapter contributed $100 to defray expenses of the campaign against the Union at the election. Just before the election was held, Long asked the secretary of the Association how the 'anti-Union campaign was progressing and offered to make, if necessary, a contribution to cover the expense.2° (c) Conduct of Foremen Foremen at Clinchco campaigned openly against the Union just before the election. Section Foreman Vayard Rose posted the above-quoted bulletin, urging em- ployees to vote against the Union, on the wall of the check-board office.21 Sec- tion Foreman Andy Sloan urged employees Lonzo Edwards, Junior Viers, Elbert Lyons and others not to vote for the Union, declaring that he would have to make it harder on the miners if the Union won, and stated that the coal loaders would not get the rock cars they had been getting.22 Sloan told employee Elva Rose that men joining the Union were "fixing to get messed up," and would lose the election. He also told Rose that he had worked in about every sec- tion of the mine, had talked with the men and they would not "stick" with the Union. Sloan also told the same employee that Long had informed him that before they would operate under a Union contract, they would "nail the damned drift-mouth up." 22 Section Foreman Robert Cook told Edwards, in effect, that if the Union got in, the work would be harder for the employees.' Section Foreman Priode told employee Woodrow Hill that the employees did not need the Union and that Hitler had said that "this country would whip itself through" labor organization 2' 20 There is no evidence that Long actually made any financial contribution. He was not called as a witness. The findings in the above section are based upon the uncon- tradicted testimony of witnesses called by the Board. 21 Rose admitted posting this notice Union literature was also posted. Adams gave instructions to-allocate an equal amount of space for the Union and the Association. However, whereas the Association literature remained unmolested, the Union notices remained posted for periods of not longer than 4 days. 22 The question of rock cars is described fully hereinafter. 23 Sloan denied making the statements attributed to him. The foreman's testimony, where unsupported by credible evidence, was wholly untrustworthy. Foreman Robert Cook, also a witness for the respondent, testified that he heard Sloan discuss the Union "continually about every evening" with the employees. Moreover„ Sloan emphatically denied ever having executed a certain affidavit which was thereafter introduced into evidence by counsel for the Board, and which he then admitted having signed. The affi- davit was made by Sloan before an attorney for the respondent. Sloan further admitted' that his memory was only good "sometimes." 24 Cook candidly admitted making such remarks which, he declared, " just come in, It fit in pretty handy. . . . I just blazed loose and said it." w Priode denied making this statement. The Trial Examiner does not accept his denial as true. It is reasonable to believe that Priode would, and did, follow the course of anti- Union conduct already charted by management officials. CLINCHFIELD COAL CORPORATION 559 And Adams told employee Tandy Rose, "Damned if we can afford to have the Union" win the election. (d) Conclusion It is plain from the foregoing findings that the respondent, by acts of its supervisors and by the Association, solicited and caused to be solicited, votes against the Union among its employees in the Board election of August 15, 1942, and thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. 3. The respondent's domination of and interference with the Independent (a) Meetings of Association representatives at Thompson's office where organi- zation of Independent was planned As found above, the Association made no formal move toward dissolution until September 11, 1942. Sometime in May or June 1942 before the consent-election agreement was entered into, as described above, Thompson convened the Association repre- sentatives at Dante, informed them that the Board had received charges with respect to it, and advised that it would be better for them to agree to dis- establish-and reorganize later, and further stated that this advice was in con- sonance with the 'desire of the respondent. No decision was made at this meeting. The representatives, Thompson, Long, and Stuart later met at Dante. Stuart recommended dissolution, but left the matter to the representatives for decision. Long inquired if they could organize again if they dissolved the Association. Stuart rebuked him and remarked that too much company inter- ference had been the fault of the Association. Also as found above, the Association representatives met with Thompson a number of times after the election date of August 15 had been set by the Board. At these meetings discussion centered both around means of defeating the Union and of forming a new inside union. Thompson and Cassell, president of the Association, suggested names for it. Thompson warned the representatives that none of the officers of the Association could be officers of the new independ- ent, but asked Cassell and Secretary Dishman to suggest names of employees who could serve as officers and representatives in the new organization. Dish- man named C. G. Wise, R. A. Dingus, Horace Mann, and J J. Ring. Cassell gave Thompson a list containing his suggestions. G. C. Wise was selected president of the Independent Union; R. A. Dingus president of the Dante chap- ter ; Horace Mann and J. J. Ring as directors. No minutes were taken at these meetings for the reason, according to Dish- man's testimony, that "we didn't want to have any connection between the Clinchfield Employees' Association and another organization we had organized." The secretary was instructed by Thompson not to permit the Board to gain possession of the Association records. The following excerpt from Dishman's testimony further reveals the plans made for a "new" organization Q. At this conference with Mr. Thompson and others, was any mention made of a contract? . 26 Pursuant to this advice Sparks advised Mack Artrip that he could not use him in the new set-up since he had served as a committeeman in the Association during the previous 2 years. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Yes, we talked about-I believe I can better explain it by saying this= that we planned in these conferences that we had with Mr. Thompson-the first thing we had to do was to defeat the United Mine Workers in the elec- tion at Clinchco on August 15, and then we were going to get the Inde- pendent organization set up and get a closed shop with the corporation, and by that we felt like we wouldn't be any further interfered with by the United Mine Workers if we got a closed shop contract. Q. At these conferences with Mr. Thompson and others, was any dis- 'cussion had as to the officers and directors of the new organization contact- ing Mr. Thompson? A. Mr. Cassell asked Mr. Thompson how this would be arranged or how the new officers would get in touch with him about the new organization, or I am not sure that I understand just what he meant, but he said, "Well, I will have you fellows come in, like say tonight, and we'll make the plans, and I'll have these fellows come in tomorrow, and we'll execute the plans." That is the substance of the discussion. Q. Did he givd you any illustration to point out what he meant? A. Yes, he did. He said, "I represent an independent union," I believe he said, "Down at Saltville, Virginia." Q Was he referring to Mathieson Alkali Company? A. Yes, sir, I believe that is what he called it. He said one day the stockholders came in my office, and said, "Now this corporation is willing to give the employees more than they are now receiving, but we as a corporation don't want to just go ahead and say we are going to raise you fellows, but we would rather have it as demanded by the organization you have." And Mr. Thompson said, "Well, I called the fellows in and said, `Now you fellows need a raise, so just demand the corporation to give you a raise,' so they did. They called them and we had the men demand a raise, and they did, but it was a thing that had been formerly agreed on by them." The type of membership cards to be used by the Independent was also de- cided upon at these conferences between Thompson and Association officers. On July 31 the Association paid Thompson $100 as consultation fee. As found above, the Association made no actual move to dissolve until September 11, 1942, when its officers voted to petition the Circuit Court of Russell County, Virginia, to dissolve the charter. Soon thereafter, when its officers went to the Court to file its petition, Thompson advised the secretary, according to the latter's testimony, "to stay in good heart, and after everything blows over we will have another organization set up, and you just encourage the fellows at Dante, and tell them we are going to get another as soon as time elapses at the very earliest possible moment." At the same time Thompson promised President Cassell that he would communicate with him as to when .the new organization could be started. On September 19,1 4 days before the Association surrendered its finances to the Court, Cassell took W. W. Hillman, John Deal, Jake Dill, and E. A. Car- penter to Thompson's office. Other employees present were W. R. Sparks, Vaught' Burgess, T. M. Horne, C. G._ Wise, Calude Carter, W. H. Mann, W. B. Dorton, George S. Cooper, and R. C. Cooper 2' Thompson stated that he could 27 The Trial Examiner accepts the date appearing on, a memorandum sent to Hillman by Thompson on February 19, 1943. Hillman's testimony as to dates was admittedly uncertain. 28 The findings as to the individuals present are based upon the document mentioned In the footnote next above and the testimony of Cassell. CLINCIIF'IELD COAL CORPORATION 561 not represent them in forming the Independent until the Association had been formally dissolved. (b) Organization of the Independent On October 3, Hillman and several of the above-named employees returned to Thompson's office and the attorney then'agreed to represent them. On October 10, Ernest McCarty, George Cooper, C. G. Wise, R. A. Dingus, W. W. Hillman, Vaught Burgess, E. A. Carpenter, and W. R. Sparks signed the charter of the Independent as incorporators. The certificate of incorporation of the Independent was admitted to record on October 21, 1942. The purposes of the Independent, according to its certificate of incorporation, are, in part : - To act as the sole and exclusive bargaining agent of the employees of the Clinchfield Coal Corporation in Russell and Dickenson Counties. Various meetings of the above-named individuals were. held at the home of Hillman and of Griffith, a former president of the Association. No general membership meeting has-been held, and no election of officers has been held among others than the officers themselves.29 No minutes of any meetings were made at the time. Although since October 1942 the Independent has sought and obtained some membership among the respondent's employees, it had no collective bargaining agreement with the respondent at the time of the hearing. 4. Conclusions as to the respondent's domination of and interference with, the Association and the Independent (a) As to the Association The respondent contends in its answer that events occurring before July 16, 1942, are immaterial and further claims, in effect, that the Board is estopped from making findings of unfair labor practices with respect to the Association because of the settlement agreement of that date. The Trial Examiner finds no merit in this contention. The respondent failed to abide by the terms of the agreement to which it voluntarily was a party.30 The foregoing findings establish that the respondent's domination of and in- terference with the Association did not cease on July 5, 1935, but continued. Its timekeeper continued to sign, up new employees as they were entered upon the pay roll at Clinchco. The respondent continued, until July, 1942, to deduct dues of Association members thus coerced into joining. The respondent dominated the negotiating conferences, and ordered the representatives to sign contracts of its own making. When it suited management not to observe provisions in a contract, it told a representative, "To Hell with the contract." In 1941 Long instructed representatives to aid management in discouraging Union member- ship, and the representatives obeyed. It further supported the Association by 29 Hillman at first testified that the officers were selected at Thompson's office. He later changed his testimony and said they were selected at his own home. Hillman's testimony was so confused that the Trial Examiner can place little reliance upon it. However, the place of the election is immaterial. 80 In American Rolling Mills Company, 43 N. L. R. B . 1020, 1052, the Board-said: "When, as now, it appears to us that the unfair labor practices continue unabated we are not con- strained from considering the whole congeries of events which make up the pattern of unfair labor practices, including those which antedated the alleged settlement ." Duffy Silk Com- pany and Silk Throwers Union, 19 N. L. R. B. 37; Matter of Wickwire Bros.,,16 N. L. R. B. 316. i 562 DECISIONS OF NATIONAL LABOR REILATIONS BOARD granted it a closed shop, or maintenance of membership contract, which it had not requested. Although the respondent ceased to give effect to its contract with the Association after July 16, 1942, the Association continued in active existence as an instrument of the respondent until September 23, 1942. During this period, with the respondent's knowledge, it engaged in an open and vigorous anti-Union campaign. Furthermore, continuing to serve as the respondent's agent, the Association set up the Independent. The Trial Examiner therefore concludes and finds that the respondent domi- nated and interfered with the administration of the Association, gave financial and other support thereto, and thereby interfered with, restrained, and coerced its employees in the exercises of the rights guaranteed in Section 7 of the Act. (b) As to the Independent The evidence establishes that the Independent, stemmed directly from the Asso- ciation, at the suggestion of Long in the presence of Stuart, Thompson, and Asso- ciation officers. The plans for re-organization under another name were made by Thompson and Association representatives long before the respondent posted disestablishment notices and before dissolution of the parent organization was undertaken. The president and secretary of the Association selected employees who became officers of the Independent. It is clear that Long, Stuart, and Thompson had no intention to, nor did they, move toward disestablishment of the Association until its metamorphosis into the Independent was assured. The same Association officers, found to have served as the respondent's agents in anti-Union activities, assisted in the organization plans. The new officers of the Independent; selected as leaders by Cassell and Dishman, met at least twice at the home of R S. Griffith, first president- of tl}e Association. W. R. Sparks; for years the respondent's timekeeper who, as found above, signed up new employees in the Association as they obtained employment, was one of the Independent corporators. The Independent arose from no expressed desire of any employee, so far as the record shows, but only from Long's expressed desire that the Association, a creature of his own making, fostering, and throughout its existence under his domination, should be perpetuated. The Trial Examiner therefore finds that the allegations of the complaint, with respect to the Independent, are fully sustained by the evidence, and that the Independent has succeeded to the Association with only a pretended line of fracture. The, Trial Examiner further concludes, and finds that the respondent has.. dominated and interfered with the formation and administration of the Inde- pendent, has contributed support thereto, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 5. Other acts of interference, restraint and coercion since July 5, 1935 (a) Anti-union acts of management and,foremen S1 From the effective date of the Act until the hearing the respondent, by its officers and foremen, has engaged in a continuous compaign to discourage union membership. 31 The findings in this section , unless otherwise indicated in footnotes , are based upon undisputed testimony of witnesses for the Board. CLINCHFIELD COAL CORPORATION 563 In 1937 Long addressed meetings of the employees at the Dante and Clinchco theatres. At Dante he told the employees that the Union was trying to "swap them a pewter nickel for a nickel in good money." At Clinchco he told em- ployees that 'they were making more money than workers in fields organized by the Union, since the respondent permitted them to work as many hours as they wanted to. He also declared that if the employees signed up with the Union 'they would be "caught up with and fired." One day during the same year employee C. R. Booker had as guest at his home a field organizer for the Union. Foreman Palmer learned of this, and warned Booher that it was against company rules to "fool with that sort of people." In 1941 general mine superintendent Carlisle Davis instructed Section Fore- man Nathan Collins to check on employees in the Dante mine and if he found they were Union members to "send them out and tell them not to stop at the office." Davis later told Collins that if he did not catch them, it would be he who would go. At the same time the superintendent informed the foreman that he had checked on one man, had had his coal car "set out", and if they didn't find dirt in it they would fire him anyway. Davis repeatedly inquired about employee Willard Howlington, a union member working under Collins. The latter declared that he was performing satisfactory work. Howlington was 'transferred to another foreman, who also approved his work. Davis, however, discharged Howlington, and Collins was demoted.' During the same year Palmer approached employee C. B. Layne at his work in the mine. Layne is also a licensed minister. Palmer told Layne that he understood that "preachers" were trying to organize the mine, declared that they could not get into things like that and "do right" and said that all union leaders were drunkards. The foreman also told Layne that if the mine were organized about 500 men would lose their jobs. Section Foreman Nelson Kaylor made similar statements to Layne 3S In September 1941, when two or three hundred employees had gathered at the pay window in Clinchco, Long held up payment of wages while he addressed them. He said that "things" were going on which would cause management to do "things" which it did not want to. He also read from a newspaper an item concerning union assessments , and stated that a "foreign element" was trying to organize them. In April 1941, Adams asked employee H. T. Viers what he thought of the Union,' and Viers replied that although he believed in it he did not belong. Adams pointed out that the dues in the Association were less than union dues. Soon after this incident Adams accused Viers of "running around" with Union Presi- dent Cecil Hay and other Union men, and declared that they would "get some- thing they didn't want". Viers joined the Union, and was put on the night shift in a-section where there was "big rock" in the coal seam, which permitted him to make only four or five dollars a day. Section Foreman Sloan told Viers that if he would quit the Union he would transfer him to his section where he could make up to eight or ten dollars a day. 4 Viers was thereafter' discharged. 22 The cases of Collins and Howlington were included in the terms of the settlement agree- ment of July 16, 1942, above-described. Kaylor denied making the statements attributed to him by Layne. The Trial Examiner does not accept his denials as true. Kaylor, in expressing his hostility toward the Union, was but carrying out a campaign long established by his superiors. Moreover, Baylor denied making a statement in an affidavit, with which he was thereafter confronted, said affidavit having been made before counsel for the respondent. When shown the document, he admitted having signed it. 34 Sloan denied making -this statement. However, for reasons set forth before, the Trial Examiner can place no reliance upon Sloan's testimony. 540612-44-vol. 51-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some time later, in conversation with employee Mack Artrip, then an Associa- tion committeeman, Adams told him that Viers had been fired for drinking, but that if he would quit drinking and "let that damned Union" alone he could return to work a5 Following the election in the summer of 1942, Mack Artrip asked Palmer if he knew employee Charles Mabrey was a Union member. Palmer replied that lie did, but that Mabrey would not be there long enough to interfere with the men.a0 As found hereinafter, Mabrey was discharged on December 15, 1942. In 1939, when the Union was making another effort to organize the respondent's emp oyees, Palmer told a group of motormen in the office that he did not see why the miners at Clinchco should organize, since they would be cutting their own wages.. During this same period, according to the undisputed testimony of Elva Rose, Adams told a group of men how he could have "trapped" the Union organ- izers at "Fremont Bridge" and "Saw Gap", that they could have planted dynamite and a cable in the woods and when they all crowded up at those places they could have turned it loose. He said, "Boys, you know there has been many a man left. here over messing with that damned union, and you fellows had better watch, out." In the summer of 1941 employee Rolla Hamilton asked his section foreman, Tea McCoy, why Willard Kiser could not get work at the mine McCoy replied that Adams had said it was because he was "too big a Union man " ' (b) Conclusions By the foregoing activities of its officers and foremen the respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights- guaranteed to them by Section 7 of the Act. 6. The refusal to reemploy Walter Burchett and Tom Rakes on October 10, 1942. (a) Events leading up to the refusals Until the spring of 1942 Walter Burchett and Tom Rakes had both been em-- ployed by the respondent as coal loaders for many years, the former for 11 years, and the latter for 18 or 20 years. Adams testified that their work was, satisfactory. They both joined the Union in 1933, joining at the'Sunday meeting previously- described, which was spied upon by Adams and others, and both were imme- diately thereafter discharged. When Adams reemployed Burchett six weeks, later he informed him that he had been laid off because he attended the Union meeting. When Adams reemployed Rakes, two weeks later, he told him he had been "keeping bad company." 8° Both employees again joined the Union in 1941. - On April 30, 1942, Burchett "asked off" and was given a "cut off" slip.9° Oil March 30 Rakes was given permission by Adams to be "off" in order to carry on his farm. Both employees farmed their places during the summer. a5 Viers was offered reinstatement ,in July 1942 , in accordance with the settlement agree- ment above referred to. - The Trial Examiner makes no finding as to whether or not Viers' discharge was an unfair labor practice. ao Palmer denied making this statement . The Trial Examiner does not accept his denial as true Adams admitted, as found below, that although he ordered the discharge of Mabrey in December, 1942, he could think of no specific reason for it , 37 McCoy denied making this statement The Trial Examiner does not accept his denial' as true. It is reasonable to believe that McCoy , like his superiors, overlooked no oppor- tunity to discourage union membership sa These findings rest upon undisputed testimony. 10 A "cut-off" slip indicated a lay-off, not a discharge. CLINCHFIELD COAL CORPORATION 565 Both employees took part in the pre-election campaign for the Union in July and August, Burchett making speeches at open meetings and both actively assisting the Union field representatives. The Trial Examiner is convinced, and finds, that the respondent was aware of these activities. On October 10 both Burchett and Rakes returned to the mine for their jobs. They were refused reemployment, although other coal loaders were hired the same day.'O Adams told the employees he did not see why he should rehire them, since they had been off while the war was on. Although since that date each employee has applied several times for work, on every occasion he has been refused. (b) Contentions of the respondent Adams and Palmer contended that Burchett and Rakes were denied reem- ployment because they had taken time off during the var. This contention has no merit. The evidence is undisputed that both were granted a leave of absence in March and April, while the nation was at war. Both Burchett and Rakes in other years had been granted the same privilege of lay-off and never before had been refused work when they returned to the mine.'1 Adams also contended that Burchett was denied reemployment because he had made statements that miners could keep out of the Army by seeing Adams Adams admitted, however, that he had successfully obtained draft deferment for employees. Thus Burchett's statement was founded upon fact. The Trial Examiner finds no merit in this contention Adams testified that Burchett had spread a rumor, the day following the election in August, that there would be no work the next day. Burchett denied making any such statement. Adams, furthermore, admitted that the rumor was current in Clintwood, many miles away from the locality where Burchett was allaged to have referred to it. Adams did not give this as a reason for denying reemployment to Burchett in October, and admitted he had made no personal investigation, but had only heard reports that Burchett had spread the rumors. The Trial Examiner finds no merit in Adams' contention that this was a reason'for refusing Burchett reemployment. (c) Conclusions Burchett and Rakes were active Union members ; both had been summarily discharged for joining the Union in 1933; had been reinstated with warnings and had later rejoined and became active. The Trial Examiner is convinced by the evidence and finds that both em- ployees were denied reemployment' on October 10, 1942, because of their union membership and their activities on behalf of the Union before the election in August 1942. 7. The discriminatory discharges of December 15, 1942 (a) Events leading to the strike of December 14 (1) The night shift dispute in September In appraising the merits of the Board's contention that in December manage- ment imposed discriminatory working conditions upon employees in one section of No. 9 mine where all employees were union members, the Trial Examiner 40 The respondent conceded that it had hired coal loaders from and after October 10, 1942 Rakes Ras off for 7 months in 1939 In order to carry on his farm. Burchett was off both in 1938 and 1940. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considers certain events occurring after the Board election to be material and relevant. Sometime in August Gilbert Bailey, then general mine foreman, assigned about half of a crew of some 40 employees, in a section called 1st left off 6th right, to a night shift, which until then had not been operating Bailey agreed with the men on the night shift that at the end of 30 days they would return to the day shift, and that the employees then working days would Work nights. At the end of the 30-day period, however, Bailey failed to keep his word, and ordered all employees in this section to work nights. The miners protested, and for one or two shifts refused to work. The grievance was submitted to Palmer, then superintendent of the Clincho operations, by Elva Rose, of the Union grievance committee. Although Palmer admitted to Rose that Bailey, had no right to "make a contract" with the men he refused to discuss the grievance on the ground that the Union was not recognized as the bargaining agent for the employees. A day or two later the dispute was adjusted through Adams, all men returning to the day' shift, and none having been discharged for refusing to work. (2) The rock car dispute of December Between December 9 and 14, 1942, there developed another dispute between management and employees in the same section of No. 9 mine. At this time there were 31 employees working in the section, and all were members of the Union. It was the only section of the mine where all employees were union members. The dispute centered in rooms 18, 23 and 24. Two coal loaders were regularly assigned to each of these rooms, which were driven parallel off the main entry. While the width of each room, the distance from right to left rib, remained approximately the same, from 24 to 27 feet," the length of a room increased as coal was cut from the face of the seam and loaded out. Each day one "cut" of coal was made, increasing the length of the room by 6 or 7 feet. The height of each room varied with the length of the seam of coal, in this part of the section about 5 feet. Into each room rails were laid for the movement of coal cars and rock cars. The area between the right rail and the right rib is called the "clearance side", and the area between the left rib and left row of supporting timbers (which are set from 30 to 33 inches to the left of the left rail) is called the "gob" area. The "gob" area is used for the piling or "gobbing" of rock removed from the coal. It is the duty of coal loaders to clear all rock from the clearance side. The dispute arose over the question as to whether the coal loaders should "gob" the rock from the clearance side, or load it into rock cars. "Gobbing" the rock from the clearance side involved moving it across the rails from the right side of the room to the left, while gobbing rock on the "gob" side required only the rolling or "turning" it backward from the face of the coal. Loading the rock on the clear- ance side into a rock car is admittedly and obviously quicker and less arduous than moving it across the rails to the "gob" area.` For a period of at least a year before the dispute arose coal loaders in this sec- tion had been provided with rock cars for the loading of rock for which there was not room on the "gob" side, and for the loading of rock from the "clearance" side. 42 Bailey testified that the width of a "normal" room is 24 feet. Coal loader James G. Wright's testimony that Room 24 was 27 feet wide is undisputed. 43 Bailey admitted that it was easier, from the clearance side, to load than to "gob", while Section Foreman Arel Powers admitted that it required less time. CLINCHFIELD COAL CORPORATION 567 And until December 9 the section foreman, Arel Powers, had permitted the "gath- ering" motorman to bring rock cars to coal loaders whenever they asked for them." On the morning of December 9, when the coal loaders in this section checked in at the check-board, Powers told them that he had received orders not to let them have a rock car until he bad given the mortorman instructions to deliver one." The same morning Powers told motorman George Puckett to make no deliveries of rock cars without his specific instructions." Although loaders in rooms 18, 19, 23 and 24 needed and asked for a rock car that day, Powers permitted their delivery only to rooms 19 and 24. On Thusday, December 10 and for the remain- der of the week Powers refused to let the loaders in these four rooms have any rock cars. Rooms 20 and 21 were just being opened and, being without room for any gobbing, apparently were provided with rock cars." Room 22 had not,been opened. Not being provided with rock cars, the loaders in these four rooms did not dispose of rock on the clearance side, and no new cuts of coal were made for them. They "sat down" in their rooms, and did no work, with the foreman's permission. On December 10 three of the employees in this section asked Committeeman Elva Rose to take their grievance up with Palmer. Rose, together with one other member of the grievance committee and Union Vice-President Elbert Lyons, went to Palmer. Palmer refused to discuss the matter with the committee, but agreed to talk to the coal loaders directly involved. On Friday, December 11, Palmer sent Bailey into this section to inspect the rooms. Bailey was accompanied by Powers. In room 18 the two coal loaders said that they would load the rock from the clearance side if provided with a rock car. The loaders in Room 23 gave the same explanation, as did coal loader Wright in Room 24. Wright also declared that there was not room in the gob area to dispose of all rock from the clearance side, but agreed to gob what he could if the company would pay for the extra handling of the rock. Bailey replied that no extra pay would be given 98 No rock cars were thereafter provided for these rooms, and no more coal re- moved from them. Following the strike, discussed below, the loaders previ- ously employed in this section were transferred elsewhere. No one of them, however, was discharged for refusing to work. "This finding rests upon the testimony of motormen George Puckett,,Bob Newberry, and Ivan Rose, and coal loader Jan^es G Wright, all witnesses for the Board ; and Foremen Powers and Monroe Wilborn, witnesses for the respondent. Although Bailey testified that foremen instruct motormen when to bring rock cars, he thereafter admitted that a "motor- man might take it upon himself" to bring a rock car. "The testimony of Wright is undisputed on this point 4" The testimony of Powers and Puckett is in agreement on this matter. 'T Puckett testified that be delivered a rock car to room 20, on Friday, but he ,was not questioned as to room 21. The plan of this section of the mine, submitted in evidence by the respondent, shows that room 21, like room 20, had just been opened i" The findings as to Wright's discussion with Bailey and Powers is based upon the testi- mony of Wright and Powers The Trial Examiner can place no reliance upon Bailey's testimony where unsupported by credible evidence His testimony that it was never a practice to load out rock from the clearance side is refuted by foremen, motormen, and coal loaders, as well as by clear inferences drawn from the plans of rooms put into evidence by the respondent, and is inconsistent with his own testimony that, upon investigation, he found the employees to have been loading too many rock cats. Bailey's testimony that Wright told him he would not "gob" the rock from the clearance side "for me or nobody else", is unsupported by Powers, who was with him. As found above, Powers testified that Wright agreed to "gob" it, if he were paid for it. Bailey's testimony that Wright had "gobbed" rock as high as it should be in only one place in the room is refuted by the plan of the room in evidence. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Conclusions as to the rock car dispute It is the Board's contention that management deliberately deprived the coal loaders in this section of rock cars, and thus imposed unaccustomed working conditions upon them because of their Union membership. The respondent claims that the employees "requests" for rock cars were not made in good faith, that they well knew they were not entitled to such cars, and that it had long been an established custom not to furnish cars for loading rock while there was room for "gobbing" it in the gob area.° The credible evidence fails to support any one of the respondent's contentions on this point. Both witnesses for the Board and for the respondent testified that in this section, where the rock strata was unusually thick, it had been the customs, without break for at least a year,60 to load out rock on the c.earance side, and to provide at least one rock car for each cut of coal. The respondent's contention, implying that the employees precipitated the dispute by "requesting" rock cars, is refuted by Powers, who admitted that on December 9 he stopped providing the men with cars. By changing a long-established custom, the respondent precipitated the' dispute. There is no evidence that in any other section of the mine did the respondent likewise alter its custom.51 On the contrary, Motorman Newberry's testimony is undisputed that in his section, elsewhere in the same mine, where there Is less rock than in 1st left off 6 right , he was continuing at the time of the bearing, as he had for the past 5 years, to,bring rock cars whenever loaders asked for them; and that they do not "gob " rock .from the clearance side. In his section only about one half of the employees are union members. The respondent introduced testimony and documentary evidence showing the expense involved in operating reek cars, apparently in support of its contention that it was a rule to "gob" all rock in a room, if space permitted, whether on the gob side or the clearance side. The Trial Examiner considers it unnecessary to discuss this evidence. Whatever the rule may be, or may have been, the evidence establishes plainly that it had long been a practice in 1st left off 6 right, as well as in other sections, to provide rock cars for the loading of rock from the clearance side, and that not until December 9, 1942, and then only in one section, was a change in practice made. Clearly it was not unreasonable for the employees in this section to believe, particularly since but a few weeks before Bailey had broken an agreement with them, that they were being discriminated against because of their union membership, a fact which had been brought to Palmer 's attention in September. Therefore the Trial Examiner concludes and finds that, by refusing to supply rock cars to the coal loaders in this section, between December 9 and 14, the respondent imposed discriminatory working conditions upon them because of 19 While the Trial Examiner does not consider the question of room, or space, to "gob" as material to the issues , in view of the established practice as described above, the record shows that the respondent 's witnesses were not in agreement as to how close to the roof of a room "gob" should be "gobbed". Some testified that it should be "gobbed" to within 12 or 15 inches, others to within 21/2 feet. 60 Powers testified that only once before had he given orders similar to those he issued on December 9, and that this was in November or December 1941 . That they were not then carried out, even if given , is clear from the undisputed testimony of Motorman Puckett that for the two years before the hearing be had delivered rock cars whenever the loaders wanted them. ° Gilbert Bailey testified that the order cutting down the number of slate cars applied generally throughout the mine. There is no evidence that cars were discontinued in any other section although Bailey testified that men in other sections as well were sending too much slate out of the mine. CLINCHFIELD COAL- CORPORATION 569 'their union membership , and thereby interfered with, restrained and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. It is further noted that Palmer's refusal to discuss with Union representa- tives the greivances in regard to the night shift and the rock car disputes con- stituted a disparity of treatment in view of the fact that the respondent met with the grievance committee of the Association over a period of years. 12 Palmer admitted that he was not allowed to talk to the representatives of the outside union concerning their grievances . He indicated his willingness, however, to discuss the grievances with the men individually , thus discouraging collective bargaining. Under these circumstances, the undersigned finds that the respond- ent's refusal to meet with the grievance committee of the Union ccnstituted an interference with, restraint and coercion of the employees, within the meaning of Section 8 (1) of the Act.' (4) Discussion of the dispute at the Union meeting December 13 Following are the complete minutes of the Union meeting of December 13, 1942, introduced into evidence by the respondent: Meeting was called to order by President Paris Mullins presiding. Roll was called of officers and those present were : Paris Mullins, Elbert Lyons, Chas. Mabrey, Ace Rudder, Tandy Rose and Door-Keeper Homer Johnson. There were (80) members present at the meeting. New Members given the obligation at this meeting were : Jimmie Mullins, Paul Vanover, Arvil Vanover, Geo. Frazier, Earnest Campbell, Corbit Gilbert, and Cecil Stanford. Treasurer reported $132.00 on hand. New business was the rock situation on first left, six right No. 9 mines. At this meeting the miners employed at Clincho and working in first left o4f six right in No. 9 mines presented a grievance to the body of men present. This grievance was regarding the handling of rock. They claimed the Co. has been furnishing some rock cars so that the excess rock in the place could be loaded out, but had refused to furnish such car further, and the excess rock had to be handled three or four times in order to get it into the gob side of the place. The Co. had refused to pay for the extra handling of the rock. After some time of discussing the Local Union instructed the grievance committee to take the matter up with the mine Supt. and see,if they could get any adjustments in the matter. After discussing a motion was duly made by James Wright and seconded by several others that the question of rock be handled by the committee, and the committee be instructed to confer with the management to try and get some adjustment on this question. "The motion was unanimously adopted." This finishing our business for the day, Pres. Paris Mullins called on Bro. James Wright n to dismiss the meeting with prayer. We adjourned to meet again Sunday Dec. 20'42 at Clintwood, Vat ea According to the undisputed testimony of Elva Rose, he told Palmer that he had been selected by the men to represent them regarding the night shift grievance and requested a meeting for that purpose Palmer said that he was not prepared to talk to him until they got an agreement. At the time of the rock car dispute Palmer told the grievance committee : "Hell, no ; I won't talk to you boys ; I'll talk to them loaders." The following Monday the committee called upon him again requesting an interview. He said : "I will but I'm not supposed to " 11 Matter of The Niles Fire Brick Company, 18 N. L. R B 894, New York Times, 24 N. L. R. B. 1094. In the latter case the Board held that where the refusal had a coercive effect and as motivated by the employer's desire to drive the Union from the plant and was a part of a continuing course of unfair labor practice, a refusal to meet with the grievance committee of a minority group would be an unfair labor practice. 54 Wright is a licensed minister. 570 DEOISIONS OF NATIONAL LABOR RELATIONS BOARD (b) The strike of December 14 Before 7 o'clock on Monday morning, December 14, President Paris Mullins and Committeemen Elva and Swin Rose and Leslie Robinson met outside the mine office at No 9 to confer 'with Palmer. When the superintendent arrived Elva Rose asked if they could speak to him. Palmer agreed, although stating that he was "not supposed to." When Rose broached the question of rock cars, Palmer said there was nothing he could do about it, it was "'absolutely out of his power." Mullins asked why he had stopped giving the men rock cars "all of a sudden" and Palmer replied "It is no pay to the company to haul that rock out and dump it, and they will have to gob it."" Elva Rose then said , "We will tell the men what you have said." The committee then left Palmer. Elva Rose and Mullins reported to the crowd of 100 or more workers gathered to hear the result of the conference. In chorus the men shouted that they would not work until the rock question was settled.66 Increasing in numbers as time for going into the mines approached, the men remained outside the drift mouths. An hour- or so later Palmer sent Bailey to call the Union committee again to his office. Mullins was not among the crowd at the time, so Bailey located Elbert Lyons, the vice-president, and took him to the office together with Elva Rose, Swin Rose, and two others. Palmer informed them that he had telephoned to Adams at Dante, and urged them to go to work, but stated flatly that no settlement would be made on the rock question.67 according to Palmer's own testimony, "I just opened the door and let them out; there was nothing I could do." 6'-The above findings rest upon the undisputed testimony of Mullins , Swin Rose and Elva Rose. Palmer's version of the interview was in substantial agreement , although he added that when he refused to do anything about the rock question , Paris Mullins replied , "Well, we are calling them, out "- The Trial Examiner finds Palmer 's testimony on this point to be a gratuitous misstatement of fact Mullins denied that he made the remark Moreover, the record reveals no evidence that Mullins , or anyone else, "called them out," and the Union minutes, introduced by the respondent, show no intent to "call them out " Further discredit upon Palmer's testimony is reflected by his statement that in addition to the committee above named , Elbert Lyons . IIaive Johnson and Ivan Rose were present at the interview. Lyons did not arrive at the mine until 7:15, after the interview occurred. Harve Johnson was not at the mine office , but in the machine shop at the time. While the testimony of Ivan Rose does not reveal exactly where he was at the time of the interview, it established that he was not aware of what occurred until Elva Rose and Mullins reported to the employees , and obviously could not have been present at it 66 The finding that the miners stated they would not work until some settlement was made rests upon the undisputed testimony of Mullins , Swin Rose and Elva Rose 67 The findings as to this conference are based upon the credible testimony of Swin and Elva Rose and Elbert Lyons . In most essential details the testimony of Palmer is in agree- ment. He added, however, that after he had told the men he would not alter his position on the rock question , the committee declared that "while we're out today , well get a con- tract." Elva Rose denied that this statement was made at any time, and Palmer admitted that no contract was submitted to him. The Trial Examiner can place no reliance upon Palmer 's testimony wheie unsupported by credible evidence It was replete with incon- sistencies and misstatements of fact. Although at one point he testified that Adams had instructed him, over the telephone , to tell the employees that they would no longer have to work the rooms, in 1st left off 6 right, where the trouble arose, and to forget about them, Palmer's own account of the following conference with the committee makes no mention of his having relayed this message to them. Adams later testified that he told Palmer to give the men this message The Trial Examiner is not persuaded that Adams actually so instructed Palmer, since it is reasonable to believe , in view of the fact that the rooms later were closed and the dispute thus settled , that had this solution been , revealed to the com- mittee on December 14 the strike would have been ended at once ; and it is likewise reason- able to believe that Adams, if concerned only with getting the men back to work, would have made certain that the men were informed of his decision. CLINCHFIELD COAL CORPORATION 571 The committee then reported to the waiting crowd of miners what Palmer had said. Again in chorus the employees shouted that they would not handle the rock for nothing and would not work until some agreement on this ques- tion was reached.6B All but a few of the employees at No. 9 mine remained outside the drift mouths that day. Acting upon the instructions of Paris Mullins, Preacher James Wright addressed the miners and urged them not to bother any of the com- pany's property and,to stay -sober. On Tuesday, December 15, the employees of nearby mines 7 and 8 stayed out in sympathy with the men at No. 9. The record reveals no instance of violation, disorder, or damage to the re- spondent's property on the part of the strikers at any of the three mines 6a Foreman circulated freely among the miners, and no effort was made by them, by Palmer or Bailey to get them to return to work. Nor did Adams come to Clincho until Tuesday, late in the afternoon, when he arrived just in advance of sheriffs and deputies. On Monday night, however, Adams sent for Stuart, the respondent's counsel, who drew up the following document : ° NOTICE OF DISCHARGE The following men have tried to close down our Mines in a wildcat strike by stopping men going to work and threatening them with violence. They have done this in time of War when our large output of coal is an important help to our Country's war effort. This is to notify them that they are discharged, and no longer have any rights on the Company's prop- erty, and are forbidden to trespass there. Swin Rose Elva Rose Ivan Rose Harve Johnson Paris Mullins Elbert Lyons Chas. Mabry Acie Rudder Hardway Baker Corbet Owens DECEMBER 15, 1942. CLINCHFIELD COAL CORPORATION, By R. S. ADAMS. The following notice, also prepared by Stuart and enlarged to poster form, was posted at the mine offices both at Dante and Clincho adjacent to the Notice of Discharge: STRIKING IS SABOTAGE The small group of employees who yesterday at our No. 9 Mine refused to work, and by threats and acts of violence, prevented the other men from work- ing, have today done the same thing at No. 7 Mine. They have done this with- out warning or explanation to the Company. They are pulling a wildcat strike. They evidently mean to keep the men from working as long as they are allowed to. 58 Elbert Lyons testified that some of the men declared "we won't work, we want a con- tract before we work, and if the contract says move that rock over we will move it over " From this testimony, and that of Elva Rose, with reference to the night shift incident, when he quoted Palmer as saying that "Bailey had no right to . . make a contract with you men," it is apparent that the term "contract" is used loosely by the employees herein involved as being also an oral agreement or settlement of a dispute. w Ted McCoy, a foreman,,told Ace Pudder that he had never seen an "ordenlier bunch of men" in commenting upon the conduct of the strikers. Gilbert Bailey testified that the strikers did not interfere with any one who desired to go to work. 572 DE-OiSIONS OF NATIONAL LABOR RELATIONS BOARD These men are the same as saboteurs. They are cutting off the coal from the war plants which are helping to supply our soldiers overseas. They are pushing free Americans around who want to work. This aids HITLER and the JAPS. We know that the great majority of our employees do not believe in this, but are patriotic Americans who want to do their part in the war effort. This is a free country where a man who wants to do his work and support his family, and help his country, has a right to do it. This is not Germany where people can abuse and mistreat others, and order them around. The unpatriotic employees who are preventing the men from working will be discharged and will not be allowed on the company's property. There will be work at No. 9 and 7 Mines tomorrow. Any saboteurs who try to interfere with men going to work will be immediately taken off the Company's proper- ty and prosecuted. DECEMBER 15, 1942 CLINCHFIELD COAL CORPORATION. Copies of the above discharge notice were "served" upon each of the 10 em- ployees named thereon by the Dickenson County sheriff. Baker, Owens, Rudder, and Swin Rose were given their discharge notices at the mines ; Elva Rose, Harve Johnson, and Paris Mullins received theirs at the Union office in Clintwood ; and Ivan Rose, Lyons, and Mabrey were given theirs at different localities on Decem- ber 16. As has been noted the respondent, in precipitating disputes, first with reference to the night shift and then the rock cars, pursued a policy designed to provoke a strike for the purpose of discharging the Union leaders. Then it posted notices denouncing a strike of its own making as "sabotage" and the leaders thereof as "saboteurs." This act was merely a continuation of an anti-union policy of long standing. Under the guise of a national emergency the respondent sought to cloak its illegal acts under the protective coloring of a patriotic appeal. At no time did it make an effort to settle its differences with the Union, to meet with its repre- sentatives, or to call on the mediation services of the Federal Government. Under these circumstances, the undersigned finds that the respondent published and posted these notices for the purpose of discrediting the outside union and its lead- ers and thereby interfered with, restrained and coerced its employees in the exer- cise of the rights guaranteed In the Act. (c) Union activities of the 10 discharged employees Eight of the 10 discharged employees were officers or committeemen, of the Union Local. Their respective positions were as follows : Paris Mullins, President of the Local Elbert Lyons, Vice-president Charles Mabrey, Recording Secretary Ace Rudder, Financial Secretary and on 1Grievance Committee at Mines 7 and 8 Hardaway Baker, Corbett Owens, Grievance Committeemen at 7 and 8 Elva Rose, Swin Rose, Grievance Committeemen at 9 As noted above, several of these employees were discharged in 1933 because they joined the Union, and were later reinstated. The Union activities of each of the 10 employees were well known to man- agement. Facts bearing upon,the employment record and union-activities of each are set forth below in brief: Paris Mullins. For 15 years an employee of the respondent. Discharged in 1933 because he joined the Union. Reinstated upon promise to leave union CLINCBIFIELD COAL CORPORATION 573 alone. Joined union again in December 1941. Elected president of Local in September 1942. Elbert Lyons. Employed by respondent for about 20 years, as gathering motorman. Discharged in 1933 because he joined the Union. Reinstated upon revocation of union membership. -Joined union again in 1937, and discharged the next day, being told by Adams that he had gut himself "messed up again". Later reinstated when he convinced Adams that he had made no attempt to sign up other employees.60 Is licensed minister. In November 1941, in his presence, Foreman Kaylor told Palmer he had more confidence in Preacher Lyons than in others, because be was not in union. Palmer agreed, and declared "a man can't do right" and be C. I. O. Lyons joined union again in December 1941. In spring of 1942 Palmer ordered him to quit, talking about the Union or the company would transfer him ' In August 1941, Dis- patcher Fuller, his superior, warned Lyons, Elva Rose, and Harve Johnson that they would lose their jobs by "messing" with the Union. Served with Union grievance committee on rock dispute. Charles Mlabrey. Was laid off in 1933 at shutdown of Crane's Nest mine. Reemployed at Clinchco mines after being required by Long to sign' statement that he would not join union. Joined union in 1940. Elected secretary of Local. Served on grievance committee in September 1942, on night shift dispute. Ace Rudder. Brakeman for 11 years at No. 7 mine. Joined union in June 1942. Financial secretary of Local and on grievance committee. Took up grievance as to check weighman with Palmer. Active in election campaign of August 1942. Hardaway Balser. Timberman, employee for 11 years. Joined union in April, 1942. Member of grievance committee at No. 7 mine. Before August election told foreman J. M. Sutherland he was union member. Corbett Owens. Six years an employee. Coal loader at time of discharge. Joined union in April 1941. On grievance committee. Before November 1942, had been "company" man, making higher wages. During November testified for union in assault case against two other employees. After trial, demoted to coal loading by foreman Colley. Spoke over loud speaker system in Union election campaign in August 1942. Elva Rose. For 9 years tram motorman at No. 9. Joined union September 1941. On grievance committee. Interviewed Palmer in September 1942 on night shift dispute. Warned by his superior, Fuller, as noted above in case of Elbert Lyons. Had previously served as Association committeeman. Swin Rose. Employed at least since 1933. President of Association in 1939. Joined union in September 1941. Became grievance committeeman in October 1942. While president of Association told by Palmer that Long would nail up drift mouth before he would recognize union. Ivan Rose. Employee for 22 years, "gathering" motorman. Discharge in 1933 because he joined union, later reinstated Joined union again in Sep- tember 1941. Wore union button, and not long before strike told by foreman Sloan that union was losing ground.68 00 Lyons' testimony as to his 1937 discharge is undisputed 01 Lyons' testimony as to Palmer's remarks is undisputed. O Fuller denied making this statement. As found above, the Trial Examiner does not accept this denial as true. a Sloan denied making this statement. As found above, however, Sloan's unsupported testimony was untrustworthy. I 574 DEOTSIONS OF NATIONAL LABOR RELATIONS BOARD Harve Johnson. Brakeman for past 7 years. Elva Rose his motorman. Joined union in July 1941, told Foreman Sloan he had joined, and began actively organizing. Was present with motormen in September 1941, when Palmer warned them to retain Association and keep away from union. - (d) Analysis of the respondent's contentions as to the discharges Adams testified that he knew of the rock dispute before the work stoppage on December 14, and that he "thought something was in the wind," because the men in the section refused "to work without a car to load gob ." He was in- formed by Palmer that the men stayed in the mine on Thursday and Friday but did not work. At his instruction, according to his testimony, Palmer went into the mine on Sunday, December 13, to-ascertain if, in fact, there was room to gob the rock. When Palmer reported to him the same day that there was room, -'Adams stated that he informed Palmer that, there "was nothing we could do about it." Adams further testified that he was told by Palmer on Monday, over the telephone, that the men were standing around and not going into the mine and that "the men had refused to let the equipment to go into the mines", because of the controversy over the rock cars. According to his testimony, also, he gave no instructions to Palmer or to any other official to go out and ask or tell the men to go back to work, to move the motors, or to leave the mine premises. The only order given by him to Palmer, he admitted, was to ask the men to move certain cars of coal. Adams further testified that on Monday he stayed at Dante, "doing quite a lot of thinking and planning," and sent for Stuart. Stuart went to Dante, Monday night, and drew up the discharge notice and the poster above quoted. On Tuesday Adams communicated with the State Police, the county sheriff, and deputized a number of employees. Decision as to the dis- charges, he testified, was made by him on Tuesday morning. Adams testified that he discharged the Union leaders on the basis of an oral report from Palmer and Bailey. and that Palmer, over the telephone, gave him a "list of the men who he considered were active in handling the crowd and stopping the motors." Questioned specifically with respect to each of the 10 men, as to what each had been reported to have done in (1) "stopping men going to work," and (2) "threatening them with violence," as the discharge notice stated, Adams testi- fied, in substance, as follows : - As to Swin Rose, on (1) : "He was up around the motors and told the people that they would-told Mr. Palmer there would be none of them would go in there, and Mr . Bailey." On (2) : no report. As to L'lva Rose. on (1) : "Had told somebody, Frank Fuller, I believe, that he had been giving orders about handling the motors and that he wasn't doing that that day but somebody else would be telling him what to do with them." On (2),: "I can't recall" As to Ivan Rose, on (1) and (2) : "He had told somebody to go back off of the hill and if he didn't go off the'hill he would throw him in the ditch or something." As to Ilarve Johnson, on (1) : "He was alongside Swin Rose" when the latter "ordered Bailey out of the motor." On (2) : "I don't know" CLINCHFIELD COAL OORPORATION 575 As to Paris Mullins, on (1) : "Mr. Palmer said he was apparently acting in charge of the men that was there ; he made them a ,speech," but he did not "know what he said." As to (2), "I never heard on that." As to Elbert Lyons, on (1) : "I don't know. There was some incident, as I remember ; I don't recall who it was that he told thelu they couldn't work." On (2) : "I don't know." As to Charles Mabrey, on (1) : "I don't know." On (2) : "Nothing that I heard of." As to Ace Rudder, on (1) : "Mr. Palmer reported to me that he told Ted McCoy to get out of the motor." On (2) : "I would consider that a sort of threat, to tell a man to get out of the motor." As to Hai daway Baker. on (1) : Stopped McCoy and told him to get out of the motor. On (2) : no report As to Corbett Owens, on (1) : Same as Baker and Rudder. On (2) : no report Palmer's testimony as to his reports to Adams varies somewhat from Adams' testimony on the point Palmer stated that he was asked by Adams who the "bosses" were,. and that he, in turn, asked Sykes, at Mines 7 and 8, who the leaders there were. Since Adams testified that he discharged the Union lead- ers on the basis of reports received by him from Palmer and Bailey, the Trial, Examiner considers it unnecessary here to review, in detail, Palmer's testimony as to his observations or reports made to him. Furthermore, the Trial Exam- iner can place no reliance upon Palmer's unsupported testimony. At one point he described, with gestures, and with particularity of detail, the actions and words of certain individuals, standing at specified points in a crowd, some 30 feet away at 7: 00 or 7: 30 o'clock in the morning, on December'14. At another point he testified that on the next morning at 7: 30 or later, and within a distance of only 20 feet, it was so dark that he could hardly even estimate how many men were standing in a group, and that he could recognize none of them. Concerning incidents cited by Adams as providing his basis for the discharges, the evidence in summary is as follows : The Bailey motor incident . Bailey testified, in substance, that early Monday morning, when he boarded a tram, or motor, which originally had'been left at a switch by shop men outside the mine drift mouth, Swin Rose "rushed up to the side of the motor, throwed his hand across the motor," a' and said, "Don't move that damned motor " When asked if they were not going to work, Harve Johnson, Elva Rose and Ivan Rose said that "nothing" was "going in here today." Thereupon he got out of the motor, saying, "Well if that's the way you fellows feel about it, I'll just leave the motor sit." Although Bailey testified that at this time there already were 100 to 150 men standing around within 3 or 4 feet of the switch and near the drift mouth, he also testified that this crowd "rushed" over to the motor which he boarded. He admitted that he did not ask any of the men to get out of the way, that he instructed no regular motorman to move the motors, nor did he thereafter make any effort to move it himself. Bailey has the power to-dis- 6 Robert Martin, foreman and assistant to Bailey, testified that be saw this incident, and that Swin Rose made a motion tow and Bailey as if to "take a swat at his Jaw." Martin demonstrated the motion by holding out both hands , waist high His testimony on this point, purely speculative, was not supported by Bailey or any other witness called by the respondent. Furthermore, Martin admitted that he reported his observations to no one until after the strike was over, hence they could have no bearing upon the discharge 576 D:E,OISIONS OF NATIONAL LABOR RELATIONS BOARD charge employees, but stated that he was not even consulted about the discharge of any of the men here involved, although he reported to Palmer that Swin Rose, Ivan Rose , Elva Rose and Harve Johnson were the "leaders" of the "strike". Bailey further admitted that he saw no one prevent others from going into the mine. Swin Rose flatly denied threatening Bailey, stated that he only asked the fore- man to "wait a few minutes till we got this rock question settled," and that the incident' occurred shortly before the committee's second conference with Palmer. The testimony of Swin Rose on this incident is supported by that of Ivan Rose. Harve Johnson admitted that he saw Bailey get into and out of the motor, but that he was standing 8 or 10 feet away, in the crowd, and did not hear what was said. Elva Rose denied that he was present at the incident," and the Trial Exam- iner accepts his denial as true. One hundred or more men were standing around his motor, and it is reasonable to believe that Bailey was mistaken as to the presence of Elva Rose. In summary, the Trial Examiner finds that Bailey was not ordered out of the motor, but was asked to wait until some settlement had been reached on the dispute. This finding is based not only upon the credible testimony of Swin Rose and Ivan Rose, but also upon the inherent probabilities of the situation as described by Bailey himself. Even if Bailey's version should be accepted as accu- rate, it provides no substantial basis for the statement in the discharge notice as to "stopping men going to work and threatening them with violence.;" Elva Rose-Frank Fuller incident. As noted above, Adams testified that he ordered the discharge of Elva Rose because of a report that he gave orders to Frank Fuller, dispatcher. Fuller's version of the incident, in substance, is as follows : After the first meeting of the grievance committee with Palmer on Monday morning, he met Elva Rose near the mine office, and Elva Rose "told me that I'd been telling them when to take their motors in; said `You're not boss', said, `What's in there can come out bitt what's out here is going to stay till we get a contract.' " He further testified that Rose's manner "wasn't bad at all, he just told me that. I didn't notice any flare, anyway, he didn't act like he-was mad."' Rose denied making this statement, and the Trial Examiner, having observed both witnesses on the stand, accepts his denial as true. There is no evidence, even in Fuller's testimony, that the dispatcher offered to give Rose any order that morning, or that the occasion was such as reasonably would have prompted the voluntary remark. However, even if Fuller's testimony should be accepted as true, he admitted that Rose's manner was in no way threatening. The Ivan Rose-Sutherland incident. As noted above, Adams testified that it was reported to him that Ivan Rose had told "somebody" to go off the hill or be thrown in a ditch. The only witness called by the respondent to testify as to any incident which would serve as the basis for such a report was Dow Sutherland, an extra hand. He testified that early Tuesday morning he came up to the mine to see if there was any work for him, and that he met Ivan Rose and Homer Johnson, who asked him what he was "aiming" to do. When he told them, according to his testimony, that he "guessed" he would pump, both Rose and Johnson told him that if he tried to go inside they-would pitch him in the ditch on his head. Later, also according to his testimony, the same two men met him and said, "Are you going off the hill or are you aiming to be took off." He replied, "I ain't going off and don't aim to be took off, either." Sutherland admitted that he did not go off the hill, nor was he bothered by•any- one. The Trial Examiner finds that Sutherland's testimony deserves little credence. He testified that in his conversations with Rose and Homer Johnson eb Swin Rose also denied that Elva was present. CLINCHFIELD COAL CORPORATION 577 both said exactly the same things in unison. Ivan Rose denied telling anyone not to work or ordering anyone to leave the hill. Homer Johnson denied hear- ing Rose make the remark attributed to him by Sutherland as to "pitching" him in the ditch, but was not questioned as to whether or not he, himself, had made it. The Trial Examiner finds that Ivan Rose did not threaten Suther- land or prevent him from working. Furthermore, even if a report to this effect reached Adams, it is reasonable to believe that Homer Johnson would also have been cited as having made the remark. Johnson, however, was not discharged. There is no evidence in the record that Homer Johnson was an active Union member. Elbert Lyons. As noted above, when asked what reports had reached him as to Lyons' preventing men from working Adams replied, "I don't know. There was some incident, as I remember. I don't recall who it was that he told them they couldn't work." The general manager's testimony on this point was so vague as to raise extreme doubt as to whether or not any report with respect to Lyons' preventing men from working, Adams replied, "I don't know. There evidence to show that Lyons made any remarks, or took any action, which might have served as the basis for any report before Adams had already discharged Lyons. Three employees °O were called by the respondent who testified, in effect, that Lyons told them, separately, that they did not need their lights, that they would not be permitted to work. Each of them, however, admitted that he had not reported Lyons' statement to any foreman or official until a time subsequent to Adams' decision to discharge Lyons. Lyons denied making any such state- ment, and the Trial Examiner, having observed the demeanor of this licensed minister upon the stand, accepts his denial as true Even if the evidence war- ranted a finding that Lyons made the statements attributed to him, it is plain that no report of them reached Adams before the general manager ordered his discharge. Ace Rudder, Hardaway Baker and Corbett Owens. As to these three members of the grievance committee at Mines 7 and 8, as noted above, Adams testified that it was reported to him that Rudder ordered foreman McCoy out of a motor on Tuesday morning, and that Baker and Owens told McCoy the same thing. McCoy, however, testified in substance that on Tuesday morning, while driving a motor toward the main line at drift No. 7, Corbett Owens stepped from among a group of men near the switch and flagged him. When he asked what the mat- ter was, Owens replied that there would be no work, and that they were allow- ing no one inside. He further testified that Ace Rudder then said, "Just park that damned motor there, Ted, you're not going inside today." McCoy testified, to no remark of this nature made by Baker, but stated that he was present. Owens denied saying anything to McCoy about getting out of the motor or that he heard Rudder tell him to, but admitted that some of the men in the crowd of 75 or 100 men standing near the switch told McCoy that they were not work- ing, and asked him not to run the motor and that the foreman said, "All right, boys, I'll pull her right back here and park her." Rudder denied,saying'anything to McCoy. Both Rudder and Owens substantiated Baker's testimony that he was not present at this incident, which occurred at about 7 o'clock. Baker's testimony is undisputed, except by implication in McCoy's statement, that he did not arrive at the mine until 7: 30. Nor does McCoy's testimony find but dubious support in that of Palmer. McCoy told him soon after the incident that Ace Rudder had ordered him out of the motor, but mentioned neither Baker nor Owens in connection with the incident, according to Palmer's testimony. The es Kifflin Palmer, Ralph Linkous, and Silas Hay. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner is convinced by the evidence, including the conflicting statements of McCoy as a witness and his purported report to Palmer on December 15,,m that Baker was not at the mine at the time of the occurrence, and that neither Rudder nor Owens ordered McCoy out of the motor. (e) Conclusions as to reports received by Adams In view of the confused and conflicting testimony of the respondent's witnesses, as well as their unconvincing manner while on the witness stand, the Trial Examiner is unable to determine accurately what reports, if any, as to the activities of the 10 discharged employees, reached Adams before he decided to discharge them as having prevented employees from working or threatening them with violence. Even if Adams' testimony, viewed alone, is accepted at its face value, it is plain that he received no reports as to Charles Mabrey, the Union's recording secretary. Nor did Palmer cite any specific act or conduct on Mabrey's part to support his statement that he considered Mabrey as a "leader" of the strike. When pressed for reasons why he so labelled the Union secretary, Palmer vaguely replied, "He didn't act so dumb." Furthermore, again appraising Adams' testimony, alone, of the 10 men dis- charged by him, he admitted that he had received reports of conduct, which he construed as "threats of violence," only as to two, Swin Rose and Rudder. It has been found above that in neither case was the report, if made, based upon fact. Therefore the Trial Examiner concludes 'and finds that none of the 10 men were discharged because of reports received by Adams as to misconduct on their part, or because of any misconduct engaged in by them. Conclusions, in summary, as to the discharges of December 15, 1942 Since 1933 undisputed evidence establishes that the respondent has been actively and even violently engaged in practices designed to prevent its em- ployees from joining the Union. This practice did not stop, but continued without surcease, after the effective date of the Act. The respondent set up and maintained-even after it had entered into a settlement agreement with the Union and the Board, the company-dominated Independent, as an active barrier against Union organization. It discharged the head of the Union local, early in 1942, upon the mere recommendation of its instrument, the Association, and thereafter, with the assistance of the Association counsel, who thereafter became openly the respondent's counsel, ante-dated an addendum to its contract with the illegal organization in order to lend the semblance of legality to its act. Both openly and covertly it assisted the Association in its campaign against the Union during the August election. Its officers and foremen repeatedly and continuously warned employees not to get "messed up" with the Union. Soon after the election which was immediately protested by the Union, Bailey failed to keep a promise to employees in the one section of No. 9 mine where all were Union members, thus precipitating a stoppage of work. During the week beginning December 7, 1942, and immediately after the respondent had been informed that the Union had filed amended charges of unfair labor prac- 67 Of further bearing on the incredibility of both McCoy and Palmer, was, the latter's testimony, given but a few minutes after his statement that McCoy had told him only Ace Rudder ordered him out of the motor, that he reported to Adams that Rudder, Baker and Owens gave "those orders." CLINCHFIELD COAL CORPORATION 579 tices,6e Palmer and Adams approved a discriminatory restriction of rock cars which theretofore had been provided to the employees in -the same section of No., 9 mine, thereby precipitating not only a stoppage of work in the rooms for a number of days, but also- a strike at all three mines. The Trial Examiner is convinced that Adams was not testifying idly when he said that he knew "something was in the wind," on December 14. He had, in effect, placed that, "something in the wind," by approving foreman Power's refusal to supply rock cars, and withheld the moving of the coal loaders to other sections of the mine, thus disposing of the rock car question, until after he had, by using the strike as a pretext, discharged all of the Union officers and leaders. Many of the Union officers and committeemen discharged on December 15 had previously been discharged, because they joined the Union-Elbert Lyons had twice before been discharged for that reason. Therefore the Trial Examiner concludes and finds that the real reason for the discharge of the above-named 10 employees was their Union membership and activity, and that they were thus discriminated against in order to discourage membership in the Union. It is further found that by this discriminatory con- duct the respondent has interfered with, restrained and coerced its employees in the exercise of rights guaranteed to them in Section 7 of the Act.89 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 the operation of the respondent's business described in Section I above, have a close, intimate and substantial relation to trade, traffic and com- merce among the several States, and 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 certain unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has dominated and interfered with the formation and administration of the Independent and its predecessor, the Associa- tion, and has contributed financial and other support thereto. The effect and consequences of the respondent's unfair labor practices in this respect constitute a continuing obstacle, to the free exercise by its employees of the rights guaranteed by the Act. Because of the respondent's illegal conduct with regard to it, the Independent is incapable of serving the respondent's employees as a genuine collective bargaining agency. Accordingly, the Trial Examiner will recommend that the respondent disestablish and withhold all recognition from the Inde- pendent as the representative of any of its employees for the purposes of dealing with them -concerning grievances, labor disputes, wages, rates of pay,, hours of employment, or other conditions of employment. The Trial Examiner is also of the opinion that, under the circumstances of the case, the respondent should, as a means of restoring the status quo and remedying the unfair labor practices found, reimburse each employee, for the amount of fees and dues which the respondent checked off his wages and paid over to the Associa- 68 The respondent was notified of the filing of the amended charges on December 10, 1942. It is significant that these charges named, among others , Elva Rose, Harve Johnson, and, Charles Mabrey as having been discriminated against before this date. e9 N. L R B. v. McKay Radio & Telegraph Co., 304 U S. 333. 540612-44-vol 51-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, tion since July 5, 1935, the effective date of the Act, less any amount already returned by it to the Association. It will be so recommended.70 It has also been found that the respondent discriminated, as to the hire and tenure of employment of the following named employees : Walter Burchett Paris Mullins Elbert Lyons Charles Mabrey Ace Rudder Swin Rose Tom Rakes Elva Rose Hardaway Baker Corbett Owens Ivan Rose Harve Johnson because of their membership in and activity on behalf of the Union. In order to effectuate the purposes and policies of the Act, it will be recommended that the respondent offer to each of the above-named employees immediate reinstatement to his former or substantially equivalent position, without prejudice to his senior- ity and other rights and privileges. It will also be recommended that the respond' ent make each of the aforementioned employees whole for any loss of pay he has suffered by reason of the respondent's discrimination, by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings n during that period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : , CONCIUSIoNS OF LAW 1. United Mine Workers of America, District 28, and the Dante-Chnchco In- dependent Union, Inc., are, and the Clinchfield Employees' Association, Inc., was, labor organizations within the meaning of Section 2 (5) of the'Act. 2. By dominating and interfering with the administration of the Clinchfield Employees' Association, Inc., and by dominating and interfering with the forma- tion and administration of the Dante-Clinchco Independent Union, Inc., and by contributing support to them, the respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Walter Burchett, Tom Rakes, Paris Mullins, Elbert Lyons, Charles Mabrey, Ace Rudder, Swin Rose, Elva Rose, Hardaway Baker, Corbett Owens, Ivan Rose and Harve Johnson, thereby discouraging membership, in United Mine Workers of America, District 28, the respondent has engaged in and is engaging in unfair labor prac- tices within the meaning Of Section 8 (3) of the Act. 4. 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 and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 70 See N. L. R. B. v. Virginia Electric & Power Co., 132 F. (2d) 390 (C. C. A. 4). 71 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an 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 America, Lumber Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R . B., 311 U. S. 7. CLINCHFIELD COAL CORPORATION 581 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the Trial Examiner recommends that the respondent, the Clinchfield Coal Corpora- tion and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the United Mine Workers of America, District 28, or any other-labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in re- gard to their hire or tenure of employment or any term or condition of their em- ployment ; (b) Dominating or interfering with the administration of the Dante-Clinchco Independent Union, Inc., by whatever name it may be known or with the forma- tion or administration of any other labor organization of its employees, and from contributing financial or other support to the Dante-Clinchco Independent Union, Inc., or to any labor organization of its employees ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join or assist labor organ- izations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes 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 Trial Examiner finds will effectuate the policies of the Act : (a) Withhold all recognition from and completely disestablish the Dante- Clinchco Independent Union, Inc., by whatever name it may be known, and the Clinchfield Employees' Association, Inc., in the event the latter-mentioned organization shall at any time hereafter function, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment ; (b) Reimburse all its employees whose fees and dues in the Association were checked off for the amounts thus deducted from their wages since July 5, 1935; (c) Offer to Walter Burchett, Tom Rakes, Paris Mullins, Elbert Lyons, Charles Mabrey, Ace Rudder, Swin Rose, Elva Rose, Hardaway Baker, Corbett Owens, Ivan Rose and Harve Johnson immediate and full reinstatement to their former or equivalent positions, without prejudice to their seniority and other rights and privileges ; (d) Make whole each of the above-named employees for any loss of earnings he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of the respondent's discrimination against him to the date of such offer of reinstatement, less his net earnings" during said period ; (e) Immediately post notices to its employees in conspicuous places throughout its mines, company stores and theatres, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a), (b) and (c) of these Recommenda- tions; (2) that they will take the affirmative action set forth in paragraphs 2 (a), (b), (c) and (d) of these Recommendations; and (3) that its employees are free to become or remain members of the United Mine Workers of America, " See footnote 71, above. 582 DE.OISIONS OF NATIONAL LABOR RELATIONS BOARD District 28, and that it will not discriminate against any employee because of" membership in or activity on behalf of said labor organization ; (f) Notify the Regional Director for the Fifth Region, ( Baltimore, Maryland) in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. It is further recommended that, unless on or before ten (10) days from the- receipt of this Intermediate Report the respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permis- sion to argue prally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. C. W. WHITTEMORE, Trial Examiner. Dated April 7, 1943.