C & P Coal Co.

910 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD [The Board remanded this case to the Regional Director for further investigation of the challenged ballot herein and for such further proceedings as may be necessary pursuant to the Rules and Regula- tions of the Board.] C & P Coal Company and United Mine Workers of America (Ind.), Petitioner. Case No. 10-RC-4667. February 28, 1961 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF ELECTION On July 19, 1960, the Board issued a Decision and Order in the- above-entitled proceeding,' dismissing the petition for certification, on the ground that the only possible basis for asserting jurisdiction. under the Board's standards would be the indirect outflow standard,. but as the Employer's operations were "twice removed" from inter- state commerce, it did not meet that standard 2 Thereafter, on Oc- tober 17, 1960, the Petitioner filed a motion for reconsideration and brief, asserting, inter alia, that the employer was only once removed. from commerce, thereby meeting the foregoing standard. Upon consideration of the Petitioner's motion, brief, and the entire' record herein, we find merit in the foregoing contention of the Pe- titioner for the reasons stated below. The motion for reconsideration. is hereby granted. The record shows that New River Coal Company purchases all of the Employer's coal and has an oral agreement with Royal Fuel Com- pany under which Royal sells New River's coal for it on the open market. Although New River agrees to sell, all its coal through Royal. Fuel, it is clear on the record as a whole, contrary to our previous. finding, that Royal Fuel does not take title thereto but only solicits customers, arranges shipments to them, and deducts 9 percent of the sales price as its commission, thus performing the limited function of sales agent or broker.' During the 2-month period from the start of the Employer's oper- ations to the hearing, the Employer sold 6,000 tons of coal to New River at the price fixed in their agreement, $4.30 per ton.. New River- turned this entire tonnage over to Royal Fuel and 75 percent of it was. then shipped to out-of-State customers. Projected over an entire. year, the out-of-State shipments would amount to more than $115,000.. As the Employer sells more than $50,000 worth of coal annually to, New River,, which in turn ships it out of the State, the Employer' meets our indirect outflow standard.4 Accordingly, we shall vacate 1 Not published in NLRB volumes. Siemona Mailing Service, 122 NLRB 81, 85. 3 Highland Fruit Growers, Inc., 82 NLRB 992: Siemons Mailing Service, supra. 130 NLRB No. 95. ' ST. CLOUD FOUNDRY & MACHINE COMPANY, INC. 911 the Decision and Order of July 19, 1960, insofar as it finds that the Employer is not engaged in commerce and that no question affecting commerce exists concerning the representation of employees of the Employer, and insofar as it dismisses the petition. We find that the Employer is engaged in commerce within the meaning of the Act and that a question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. As the stipulated unit herein is one which comprises all production and maintenance employees and is traditionally appropriate, we shall direct an elec- tion 5 among the following employees of the Employer whom we find constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All employees at the Employer's Clinchmore, Tennessee, coal mine,, excluding office clerical employees, engineering and technical em- ployees, professional employees, guards, foremen, and all supervisors, as defined in the Act. [The Board vacated the Decision and Order in Case No. 10-RC- 4667, dated July 19, 1960, insofar as it finds that the Employer is not engaged in commerce and that no question affecting commerce exists. concerning the representation of employees of the Employer, and insofar as it dismisses the petition herein.] [Text of Direction of Election omitted from publication.] 5 Local 104, Southern Labor Union, hereinafter called the Intervenor , was permitted to. intervene in this proceeding on the basis of a current collective -bargaining contract with the Employer which expires on March 18 , 1962. We find no merit in the Intervenor's contention that its contract is a bar to an election at the present time. The agreement contains an invalid union-security provision which is not cured for contract -bar purposes by its accompanying deferral clause. Accordingly, we find that the contract is not a bar. Keystone Coat, Apron & Towel Supply Company, et al., 121 NLRB 880, 884. Our dis- position of this issue makes it unnecessary to consider other arguments advanced by the Petitioner for removal of the contract as a bar. St. Cloud Foundry & Machine Company , Inc. and Local 176,. International Molders and Foundry Workers Union of North America, AFL-CIO. Case No. 18-CA-1113. March 1, 1961 DECISION AND ORDER On July 7, 1960, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. - 130 NLRB No. 58.