Sewanee Coal Operators' Association, Inc.

SEWANEE COAL OPERATORS' ASSOCIATION, INC. 663 Employees may communicate with the Board' s Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore, 1-7000, if they have any questions concerning this notice or compliance with its provisions. Sewanee Coal Operators' Association, Inc. and United Mine Work- ers of America, Petitioner Grundy Mining Company and Local No. 139, Southern Labor Union, Petitioner M. A. Payne, Inc. and Local No. 139, Southern Labor Union, Petitioner Stephenson Bros. Coal Co., Inc. and Local No. 139, Southern Labor Union, Petitioner. Cases Nos. 10-RC-54197,10-RC-5593,10-RC- 5604, and 10-RC-5605. May 17,1965 DECISION AND DIRECTION Pursuant to the Board's Supplemental Decision and Order dated April 28, 1964,1 and Order dated June 11, 1964,2 Trial Examiner Fan- nie Boyls issued her attached Report on Challenged Ballots and Events Affecting Composition of Unit, recommending that the Board certify the United Mine Workers of America as the collective-bargaining rep- resentative of all production and maintenance employees of coal min- ing operators who were formerly members of Sewanee Coal Operators Association, including those not now operating but who resume oper- ating old mines either before or after the conclusion of the strike, and including also those individuals who had sole or controlling interest in a corporation which was a member of Sewanee Coal Operators Association who form another corporation and operate a new or differ- ent mine in the geographic area here involved. Thereafter, Grundy Mining Company and Southern Labor Union filed exceptions to the report and supporting briefs. The Petitioner filed a brief in support of the Trial Examiner's report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 1146 NLRB 1145. On October 10, 1963, an election was held among the employees of Sewanee Coal Operators' Association At the conclusion of the election, a tally of ballots showed that 108 votes were cast for the Petitioner, 50 for the Southern Labor Union, and 421 ballots were challenged . The Board's Decision directed that a hearing be held to resolve the issue raised by the challenged ballots. 2In this Order, the Board broadened its order to permit the introduction of evidence of events since the election which might affect the propriety of the unit. 152 NLRB No. 71. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the finclings,3 conclusions, and recommendations of the Trial Examiner except as modified herein.4 [The Board directed that the Regional Director for Region 10 shall, within 10 days from the date of this Direction, open and count the challenged ballots and serve upon the parties a revised tally of ballots and an appropriate certificate.] MEMBER ZAGORIA took no part in the consideration of the above Deci- sion and Direction. 3In section II of the report the Trial Examiner misstates the stipulation of the parties. It is hereby corrected to read "That of all the eligible voters who voted an the election a ma)ority of those who actually voted voted for the 'United Mine Workers " * We interpret the situation of the parties as in effect withdrawing the challenges to the ballots. In the absence of exceptions and on the basis of the entire record herein, we find that all employees whose ballots were challenged are eligible to vote, and in the circumstances of this case, we believe that it would be best effectuate the purposes of the Act if these ballots are now opened and counted before issuing any certificate Accord- ingly, we direct that the Regional Director open and count the challenged ballots, and prepare and serve upon the parties a revised tally of ballots and the appropriate certificate. TRIAL EXAMINER'S REPORT ON CHALLENGED BALLOTS AND EVENTS AFFECTING COMPOSITION OF UNIT On April 28, 1964, the Board issued an order directing that a hearing be held before a Trial Examiner to resolve the issues raised by 421 challenged ballots, and that said Trial Examiner issue a report containing findings of fact and recommen- dations to the Board relative to the disposition of those issues. On June 11, 1964, the Board issued a further order broadening the scope of the hearing before the Trial Examiner to include an inquiry into alleged occurrences after the election of October 15, 1963, which might be relevant to the composition, or the continued existence, of the unit found appropriate. Pursuant to these orders, a hearing was held before Trial Examiner Fannie Boyls at Chattanooga, Tennessee, on June 16 and 17, 1964 Thereafter, briefs were filed by counsel for the United Mine Workers of America (herein called the UMW), by counsel for Grundy Mining Company (herein called Grundy), and by counsel for Sewanee Coal Operators' Association, Inc. (herein called Sewanee), M. A. Payne, Inc. (herein called Payne), and Stephenson Bros. Coal Co., Inc. (herein called Ste- phenson). Each brief has been carefully considered. Upon the entire record in this proceeding, and from my observation of the wit- nesses in the hearing before me, I hereby make the following: FINDINGS OF FACT 1. PRIOR STEPS IN THIS PROCEEDING Although an attempt will be made to avoid any unnecessary repetition of prior contentions of the parties and findings of the Regional Director and Board in this proceeding, a brief recitation of prior steps and findings which may be helpful to an understanding of the issues will be set forth below. 1. In September 1962, approximately 33 coal mining operators in the southeast at least in part, of bargaining collectively as a multiemployer group. Between Septem- ber 1962 and January 1963, Sewanee engaged in collective bargaining with the UMW. Tennessee area formed Sewanee Coal Operators' Association, Inc., for the purpose, 2. On December 26, 1962, the UMW called a strike, as a result of which the mines of all the operator members of Sewanee were shut down. Grundy resumed operations in May 1963. 3. On February 25, 1963, the UMW filed a representation petition with the Board, seeking an election in the employerwide bargaining unit composed of the employees of the members of Sewanee. SEWANEE COAL OPERATORS' ASSOCIATION, INC. 665 4. On May 23 and June 6, 1963, the Southern Labor Union (herein called SLU) filed representation petitions with the Board, seeking an election in single-employer units consisting of the employees of Grundy, Payne, and Stephenson. 5. Following a hearing on the consolidated cases, the Board on September 20, 1963, issued its Decision and Direction of Election, finding a multiemployer bar- gaining unit consisting of the employees of members of Sewanee appropriate, and directing an election in that unit. 6. On October 15, 1963, the election was held. The tally of ballots showed that 579 of the 660 voters cast ballots, of which 108 were for the UMW, 50 were for SLU, none was against the participating labor organizations, and 421 were chal- lenged. There -vere, however, only 280 employees listed on the eligibility list fur- nished by Sewariee and of these, 199 cast ballots. With respect to Grundy, 108 of its 155 employees listed on the eligibility list voted. 7. On October 21, 1963, Grundy and SLU filed objections to the election 8. On December 17, 1963, the Regional Director issued his report on objections and challenged ballots, recommending that certain portions of the objections relat- ing to alleged preelection violence be sustained, and that the remainder be over- ruled; that a hearing be held before a Trial Examiner to resolve the issues raised by the challenges; and that the election be set aside and a new one directed subsequent to the hearing. 9 On December 23, 1963, Sewanee filed a petition requesting the Board to amend its Decision of September 20, 1963, and specifically spell out the names of the coal companies in business whose employees were entitled to vote as members of Sewanee. UMW filed a response thereto. 10. On January 9, 1964, the UMW filed exceptions to the Regional Director's report and a supplemental brief. 11. On April 28, 1964, the Board issued its Supplemental Decision and Order, overruling the objections to the election in their entirety and directing that a hearing be held before a Trial Examiner of the Board to resolve the issues raised by the 421 ballots challenged. 12. On May 11, 1964, Grundy filed a petition for reconsideration and a motion to reopen the record. It requested that the Board set aside its April 28, 1964, Decision and affirm the findings and recommendations of the Regional Director in his report on the objections and challenges, or that the Board reopen the original record to receive evidence of occurrences since the hearing which, it alleged, sub- stantially affects the propriety of the unit. Grundy further requested that if the Board denied both its petition and motion, that the Board determine the bargaining agent of its employees independently of all other employees. On May 18, 1964, the UMW filed a response in opposition to Grundy's petition and motion. 13. On June 11, 1964, the Board issued its Order referred to in the opening para- graph of this report, denying the petition for reconsideration and motion to reopen, including the alternative request, but broadening the scope of the reopened hearing to include not only evidence relating to the challenged ballots but also evidence of events occurring after the election, which may be relevant to changes in the com- position of the unit or the continuing existence thereof. It. THE CHALLENGED BALLOTS In seeking to dispose of the issues raised by the 421 challenged ballots, the parties stipulated at the hearing that a majority of the eligible voters as of the date of the election voted for the UMW. They further stipulated that a substantial majority of the 379 voters challenged by the Regional Director voted for the UMW and that a substantial majority of the 42 voters challenged by the UMW voted for the SLU. On the basis of this stipulation and the tally of ballots, it is clear that UMW would be entitled to certification as the bargaining representative in the multi- employer bargaining unit found appropriate by the Board, unless the record shows that said unit is no longer in existence or that the composition of the unit has so changed as to make it no longer appropriate. III. BACKGROUND: COMPOSITION OF THE UNIT In its Decision and Direction of Election, dated September 20, 1963, the Board found appropriate a multiemployer bargaining unit consisting of production and maintenance employees of employer members of Sewanee. The representation peti- tion filed by the UMW has attached to it a list of 33 mine operators which, it is alleged , were members of Sewanee. A large majority of the operators listed were mining coal on property of Tennessee Consolidated Coal Company (herein called 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consolidated), or of Tennessee Products and Chemical Corporation (herein called Products), pursuant to leases or contracts with one of those two companies. The few remaining operators mined coal on the property of other owners or on their own property. Consolidated and Products do not operate any mines themselves. Following the UMW strike in December 1962, all the mine operator members of Sewanee ceased operating, but Grundy resumed operations in May 1963. The names of only 12 members of Sewanee appear on the employee voter eligibility list sub- mitted by Sewanee. Sewanee, in its petition to the Board on December 23, 1963, contended that these 12 were the only members of Sewanee who remained, or intended to remain, in business and that some 18 other members of Sewanee were no longer in business. Sewanee and Grundy now contend that further changes in the unit found appropriate by the Board have occurred which have destroyed the very existence of that unit. IV. CONTRACT AND AGREEMENT OF SUBLEASE BETWEEN PRODUCTS AND COLLINS At the time of the original hearing in this proceeding, Products owned or had leases covering about half the coal producing lands in the southeast Tennessee area here involved. At the time of the formation of Sewanee, of which Products was a member, Products had subleased its mining properties to or had mining contracts with numerous small mining operators, many of whom were likewise members of Sewanee. On February 20, 1964, Products entered into a contract and agreement of sub- lease with Stamper Collins and his wife, who were not members of Sewanee. Under this contract, Products subleased to the Collinses all its coal mining property in the area here involved, subject to the rights, if any, of other operators having subleases or contractual mining rights from Products, and agreed to give notices of cancella- tion of such subleases or contracts relating to the mining and production of coal, where such contracts or leases could legally be canceled. Subsequent to Febru- ary 20, 1964, in late April or early May, Stamper Collins entered into a collective- bargaining agreement with UMW, covering one or more mines situated on property he had leased from Products. The record does not show what employees were cov- ered by the agreement. Pursuant to the provisions of its contract with Collins, Products, on April 10, 1964, sent letters to 25 operators who had formerly operated coal mines on Prod- ucts' property, canceling as of May 10, 1964, the rights of those operators to con- tinue mining on that property. At least 9 of these 25 were members of Sewanee. The cancellation letters concluded with the statement: "If you desire to continue mining operations, we suggest that you contact Mr. Stamper Collins . to whom we have subleased our mining properties." None of the recipients of these can- cellation letters, however, has made any agreement with Collins in regard to the resumption or acquisition of coal mining operations. The nine members of Sewanee who received these cancellation letters are listed below: Basham Coal Company James M. Campbell, d/b/a Coal Creek Coal Company Cordell Coal Company, operated by C. C. Cordell Kelley Creek Coal Company, operated by Jerry A. McGowan J. H. Graham, d/b/a Ninth West Coal Company Stephenson Bros. Coal Co., Inc., operated by John Stephenson Tracy City Coal Company David Ray Sampson, d/b/a Whitwell Mountain Coal Company, Inc. O. L. Ellis Coal Company, Inc., operated by O. L. Ellis Collins, after signing an agreement with UMW, talked to several of these operators, James M. Campbell, Joseph H. Graham, and John Stephenson, about the possibility of operating under what they described as "sweetheart" contract arrangements with the UMW, but all declined to accept any such arrangements. One of the operators, Campbell, is now running a filling station in Tracy City and testified that he never intends to operate a mine again. Another, John Stephenson, bought a farm in April 1963, and testified that he is permanently out of business as a mine operator. In addition to the operators whose mining contracts were canceled by Products, there are other operators holding subleases from Products which were not subject to cancellation, and others who had no contracts but were mining at the sufferance of Products on its property. SEWANEE COAL OPERATORS' ASSOCIATION, INC. 667 Cates Coal Company was one of those mining on Products' property at its suf- ferance. Cates has not operated since the strike started and, in view of Products' contract with Collins, it would appear that it has no right to resume mining opera- tions on the property now controlled by Collins. Easy Coal Company, a corporation operated by Max Condra, has a valid lease from Products and is still in existence as a legal entity. Condra testified, however, that his generator has been destroyed, that his wire has been stolen, that he has tried unsuccessfully thus far to dispose of the property, and that he has no intention of operating the mine again. Since April 12, 1963, Condra has been working as gen- eral mine foreman for Stamper Collins and, in addition, engaging in the insurance business. Marshall Meeks Coal Company is owned by Marshall Meeks, Jr. He holds a lease obtained from Products but the latter assigned its interest in the lease to Stamper Collins and so notified Meeks on April 10, 1964. Meeks' mine equipment has been stolen, the mine is filled with water, and rock has fallen into it. Meeks discussed with Collins the possibility of operating the mine again but rejected a pro- posed plan by which he could operate with Collins under an arrangement with UMW. During the past year, Meeks has been hauling coal for Consolidated or for Grundy. He is now starting up a new mine on Consolidated property and has two employees. Leon Nunley Coal Company was operated by Leon Nunley. Like Meeks, he held a lease from Products and was informed by Products that it had subleased its mining properties to Collins. Nunley testified that the generator in his mine has been torn up, that equipment has been stolen, and that he is financially unable to resume mining operations. He is now trucking coal for his brother. Virgil Thomas, d/b/a Virgil Thomas Coal Company, also known as Thomas Coal Company, operated a mine on Whipple Mountain under a lease from Products prior to the strike, and is one of those whose lease was not subject to cancellation. Thomas is now operating a mine on Pilot Mountain between Lake City and Oliver Springs. The old mine is not being operated and a sign near the mine indicates that its equip- ment is for sale. V. MINING OPERATIONS ON PROPERTY CONTROLLED BY CONSOLIDATED Consolidated controls by lease approximately half the coal mines in the area here involved It has not directly operated a mine since March 1960, but it is the owner of subsidiary corporations, including Grundy, which are operating companies. Con- solidated sells coal mined by these companies. Grundy has the same president and the same vice president and secretary as its parent corporation, Consolidated. Grundy is the only member of Sewanee which has operated continuously since May 1963. It is by far the largest of the operators. R & S Coal Company, Inc., was at the time of the strike being operated by Harls McHone and three other stockholders in that company under a lease from Consoli- dated. The mine being then on retreat, the stockholders closed it down and sur- rendered the charter of the corporation. McHone, thereafter, on December 16, 1963, organized another corporation, Hemlock Coal Company, of which he is the sole stockholder and has since then been operating a mine formerly operated by Grundy. All the coal he produces is sold to Grundy. Howard Higgins Coal Company, Inc., was operated by Howard Higgins. In 1962, he was operating a mine under an oral lease from Consolidated. In September of that year, an explosion shut down the mine. He tried unsuccessfully to get the mine back in operation prior to the strike in December 1962, and later, about November 1963, was informed by a mining inspector that because of gas in the mine, it would be at least 5 years before the mine could be operated again. Higgins testified that he has abandoned the old mine and lease. He now has a hand-loading mine which he bought from Grundy and is operating it with the help of some of his former employees. His other former employees, or most of them, are working for Grundy. Higgins formed a new corporation to operate his present mine. Five other members of Sewanee were at the time of the strike operating coal mines under oral arrangements with Consolidated. They had contracts with Tennessee Valley Authority (herein called TVA) to supply coal, and Consolidated signed their performance bonds. About November 27, 1963, Consolidated wrote these five oper- ators a letter, informing them that TVA officails had indicated that unless deliveries of coal were resumed under the supply contracts, TVA might cancel the contracts and seek damages under the performance bonds. A few days later, after ascertain- '668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that the five operators would be unable to resume operations because of the strike, Consolidated notified them that their oral leases were being canceled. Con- solidated then substituted other producers under Grundy to supply the coal to TVA. These five Sewanee members whose leases were thus canceled are listed below. H. Willis Flynn Coal Company , Inc., was operated by H. Willis Flynn . After his oral lease was canceled, he worked as a foreman for Grundy for a while , then exer- cised an option given him by Consolidated to operate a new mine He formed a new corporation, Sycamore Coal Company , and although he had not yet signed a lease for the mining property at the time of the hearing , was in the process of open- ing the new mine with the aid of a few employees and using Grundy equipment. The equipment in Flynn's old mine had been burned up Goodspring Coal Company, Inc., was operated by Fred Morrison , Sr., its president. He is now dead . Funeral services for him were being held on the last day of the hearing. Martin Coal Company was operated by Charles Martin. He removed his equip- ment from his mine when the strike started and it is still intact . Paul B Callis , presi- dent of Consolidated as well as of Grundy, testified that due to Martin 's age, he does not intend to lease any of Consolidated 's mining property to Martin when the strike is over. North End Coal Company, Inc., was operated by Harley Bryant . He testified that the mouth of his mine has fallen in and that there is water in it but he believes that it can be cleaned up and operated again . He testified that he would like to resume mining operations when the strike is settled . Consolidated 's President Callis testified that he would be glad to try to negotiate a lease with Bryant when the strike is settled. J. W. Sanders Coal Company, Inc., was operated by John W. Sanders . He testified that although he has no arrangements whereby he may resume coal mining after the strike, it is his intention to do so if he can. Consolidated's President Callis testified, however, that due to Sanders' age, he does not intend to permit Sanders to resume operations on Consolidated's property. VI. MEMBERS OF SEWANEE WHO WERE INDEPENDENT MINE OPERATORS Hubert Fults , d/b/a Hubert Fults Coal Company , was operating under a lease from Earl Patton , who owned the mining property, in the fall or winter of 1962. Fults surrendered the lease to Patton who then operated the mine for about 6 weeks. Earl Patton's name does not appear on the list of Sewanee members attached to the representation petition, but it was agreed at the hearing that Earl Patton, as well as Hubert Fults, had applied for membership and were considered members. During the strike, Patton has been operating a small mine at Graysville in Bledsoe County. He testified that he would like to open the mine he took back from Fults if the strike is settled satisfactorily and if he is financially able to start it again. C. P. Hunziker, d/b/a C. P. Hunziker Coal Company , was operating a mine on Hunziker's own property prior to the strike. He testified that he is 69 years old, too old to start mining again , and that his mine is for sale . For the past 3 years he has been operating a motel which he bought just before the strike began. He had started operating it while still mining. Frank Hunziker Coal Company was operated by Frank Hunziker , a brother of C. P. Hunziker, prior to the strike. The latter testified that the mine operated by his brother has not been in operation since the strike. Leon Patton, d/b/a Leon Patton Coal Company, owns a mine which, prior to the strike, was operated by his father , James Patton Leon Patton has purchased a home in Chattanooga where he has been working for DuPont for about 11/z years. His mine equipment has been pulled from the mine and is for sale. James Patton testi- fied that he has no intention of going back into the coal mining business and is presently cutting timber on land which he owns. J. R. Patton Coal Company was operated by J. R . Patton . According to his brother, James Patton , he is now working as a coal loader for Willis Flynn. M. A. Payne, Inc., was shown in the prior hearing to be an independent operator, but no evidence was adduced at this heating regarding it. VII. SEWANEE : SURRENDER OF ITS CORPORATE CHARTER When the employers, in September 1962, decided to bargain on a multiemployer basis and formed Sewanee , they incorporated it On June 8, 1964, the board of directors of Sewanee met and adopted a resolution calling for the surrender of the charter of the corporation and for its dissolution . Pursuant to the resolution , Sewanee's charter was surrendered to the State of Tennessee on June 10 ,1964. SEWANEE COAL OPERATORS' ASSOCIATION, INC. 669 The resolution for dissolution of the corporation and surrender of its charter inso- far as it purports to relate to the purpose of such action, is set forth below: WHEREAS, heretofore when Sewanee Coal Operators Association, Inc. formed in September, 1962 it expressed in its purpose an idea of self-help and negotia- tions covering full properties owned by Tennessee Products & Chemical Corp. and Tennessee Consolidated Coal Co., with the operators being brought together for self-help; and WHEREAS, during the early months of its existence the operators on both sides of the mountain did cooperate fully and both big companies did cooperate with said Association and became members; and WHEREAS, its matters with regard to strike with United Mine Workers of America became worse and the parties attempted to negotiate and the entire coal fields were shut down by strike on December, 1962; and WHEREAS, in February of 1964 Tennessee Products & Chemical Corporation leased their entire leaseholdings to one Stamper Collins and wife, Susie Collins of Oak Ridge, Tennessee; and WHEREAS, Tennessee Products & Chemical Corporation exercised certain rights allegedly reserved in their leases, cancelled all leases of the operators who were members of this Association, with the exception of some very few; and WHEREAS, properties operated heretofore by Tennessee Products & Chemical Corporation were no longer within the leasehold and operations of this Associa- tion; and WHEREAS, there remains only four (4) companies of said Association who have not received cancellation, being Thomas Coal Co., Leon Nunley Coal Co, Marshall Meeks Coal Co., and Easy Coal Co., all others having been cancelled; and it further appearing that the entire purpose of said Association had been voided; .. . VIII. CONCLUSIONS AND RECOMMENDATIONS It is clear that most of the many changes reflected by the record in the status of the mine operators who formed Sewanee in September 1962, have resulted either directly or indirectly from the long and bitter strike which commenced on December 26, 1962, and is still in progress. Even the contract and agreement of sublease between Prod- ucts and the Collinses, which appears to have played such a strong role in the deci- sion of Sewanee to dissolve and surrender its corporate charter, may well have been a result of the strike and the inability of Products to furnish coal to TVA, as it had committed itself to do. This contract, as stated on its face, was intended to create a relationship in the nature of the legal status of landlord and tenant, with Products as the landlord and the Collinses as tenants. Although the contract is for a duration period of about 8 years, it has a forfeiture provision which could well result in an early reversion of the subleases to Products. Products remains in existence and is still responsible under the lease agreements to the owners of the property from which it acquired its leases, and to several of the Sewanee members to whom it subleased mining property; namely, Easy Coal Company, Marshall Meeks Coal Company, Leon Nunley Coal Company, and Virgil Thomas Coal Company. Products was an important member of Sewanee, not because of the number of its employees in the bargaining unit-for it had only three-but because it had mining contracts or leases with so many of the other Sewanee members. It cannot be assumed, however, that Products' lessee, Stamper Collins, will be any less anxious than was Products to make arrangements with operators to produce coal. Collins demonstrated his concern on this score in seeking to arrange with James M Campbell, who operated Coal Creek Coal Company, with Marshall Meeks, with Joseph H. Graham, who operated Ninth West Coal Company, and with John Stephenson to resume mining operations. Products appears to have contemplated that those mine operators who had been producing coal for it before the strike might wish to continue doing so for Collins, for in the cancellation letters sent 25 of the operators on April 10, 1964, Products suggested that if they desired to continue mining operations, they should contact Stamper Collins. Grundy argues that the signing by UMW of a separate collective-bargaining con- tract with Stamper Collins has operated to destroy the multiemployer bargaining unit. However, since Collins had never joined Sewanee and never became a part of the multiemployer bargaining unit, Grundy's contention in this respect must be rejected. Nor does the fact that Sewanee surrendered its corporate charter and dissolved itself as a corporation destroy or render inappropriate the multiemployer bargaining unit. It is of little consequence whether the employers be organized in corporate 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form or, indeed, whether they have any formal organization at all.1 More important is the fact found by the Board that coal mining operators in the area here involved had a history of successful bargaining on a multiemployer basis, and that they expressed the desire to continue bargaining on such multiemployer basis, as evi- denced by their formation of an association for that purpose, and their meetings with UMW before the strike for the purpose of attempting to reach a bargaining contract. It is obvious from the record that most of the small operators in the area here involved have little or no bargaining strength as individuals and must follow the lead of a large operator such as Grundy, or else band together as they sought to do under Sewanee and, in conjunction with Grundy, assert their collective strength in bargain- ing. The fact that many of them-because of heavy financial losses suffered during the strike, or because the mines which they had been operating are no longer operable -expressed the view that they will not be financially able to resume their business as operators if and when the strike is settled , does not, in my view, warrant a finding that the multiemployer unit no longer exists or is inappropriate . Many of these operators have operated coal mines for years or for most of their lives, and have obtained financial assistance before in starting and continuing to operate mines. Con- solidated signed the performance bonds of a number of those operators producing coal for TVA. Grundy only recently has permitted one of the operators, Flynn, to use some of its equipment in getting a new mine started . In the past, small operators on property controlled by Products have formed partnerships and obtained supply contracts with TVA, with Products signing as surety on their performance bonds. Products assisted some of them financially in other respects . Accordingly, despite the testimony of some of the operators that they have no present intention of resuming the business of operating coal mines , I am convinced that some of those so testifying will find the means of again operating their old mines or other mines in that area, and that they will continue to feel the need of collective strength in bargaining with the representative of their employees as they did when they joined Sewanee. The record shows that several of the small operators who have been found by the Board to constitute a part of the multiemployer bargaining unit operated under cor- porate names but are now operating as individuals or under different corporate names. Where an individual had the sole or controlling interest in a corporation which was a member of Sewanee, it seems only fair and realistic , for purposes of this proceed- ing, to consider him rather than the corporation as the person constituting a part of the multiemployer group. Accordingly, where the individual forms another corpora- tion and operates a new or different mine in the geographic area here involved, his employees should be treated as continuing to constitute , a part of the multiemployer bargaining unit. By the same token , it should not be considered material for the purposes of this proceeding that a member of Sewanee is now operating , or will when the strike ends be operating, a mine in the same geographic area, different from the one he operated prior to the strike. In view of the constantly shifting status of the small mine operators who were members of Sewanee, and the continuing uncertainty as to what the status of each will be when and if the strike is settled , I see no useful purpose in attempting at this stage to identify those who at the date of the reopened hearing may have appeared to be in business and those who may have appeared to be out of business as coal mining operators . It is sufficient, as the record shows, that a number of them in addi- tion to Grundy are now engaged in operating coal mines , and that others have expressed an intention or desire to resume operating their old mines or to start operat- ing new ones when and if they can. It may well be that a substantial number of those operators who were members of Sewanee before the strike started will never again operate coal mines in the area here involved. But even a substantial diminution in the membership of a multiemployer unit does not destroy that unit or render it inappropriate? Employers, of course, may effectively withdraw from multiemployer units at appro- priate times . But plainly a withdrawal after bargaining negotiations have commenced, a strike has ensued , and the union has won an election in the multiemployer unit is not an appropriate time .3 1 Belleville Employing Printers, 122 NLRB 350, 353. 2 See Puerto Rico Steamship Association, 116 NLRB 418, in which the number of em- ployers in the unit had diminished from 12 to 14, and International Restaurant Asso- c Bates for and on behalf of its members , Niblers and Crenshaw, Inc. and La Maria Corp., d/b/a Lococo's Restaurant, 133 NLRB 1088, in which the number had diminished from 10 to 2 'Retail Associates, Inc., 120 NLRB 388; Dittler Bros, Inc., at al., and Frank Carter and Julia Akins, Partners, d/b/a Superior Printing Company, 132 NLRB 444; Fair- banks Dairy, Division of Cooperdale Dairy Company, Inc., 146 NLRB 893. LOCAL 25, INT'L BROTHERHOOD, ETC. 671 The multiemployer bargaining unit heretofore found by the Board to be appro- priate was described in the Decision and Direction of Election as comprising the production and maintenance employees of all members of Sewanee, but in view of the fact that Sewanee in its corporate form has dissolved since the UMW won the election, the multiemployer unit is now more accurately described as comprising the production and maintenance employees of those coal mining operators who were formerly members of Sewanee. It is accordingly recommended that the Board certify the UMW as the collective-bargaining representative of all the production and main- tenance employees of coal mining operators who were formerly members of Sewanee, including those who are not now operating but who resume the business of operating coal mines at the end of the strike or before the conclusion of the strike. Local 25, International Brotherhood of Electrical Workers, AFL- CIO and Emmett Electric Company, Inc. and Industrial Work- ers of Allied Trades, Local 199, affiliated with the National Federation of Independent Unions; United Construction Con- tractors Association, Inc.; D-Lion Construction Co., Inc., Parties in Interest. Case No. 29-CD-8 (formerly 2-CD-316). May 17, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Emmett Elec- tric Company, Inc., herein called Emmett, alleging a violation of Sec- tion 8(b) (4) (D) of the Act by Local 25, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 25. A hearing was held before Hearing Officer Jacques Schurre on November 18, 1964, at which all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing upon the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, briefs were filed by Emmett, Local 25, and Industrial Workers of Allied Trades, Local 199, affiliated with the National Fed- eration of Independent Unions, herein called Local 199, which the Board has duly considered. Upon the entire record in the case, the National Labor Relations Board 1 makes the following findings : 1. The business of the Employer Emmett is an electrical contractor with its place of business in Levit- town, Long Island, New York. In July 1964, Emmett was engaged as an electrical subcontractor in the construction of the East End Syna- gogue, Long Beach, Long Island, New York, where the alleged dispute occurred. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 152 NLRB No. 53.