Stearns Coal & Lumber Co.

In the Matter of STEARNS COAL & LUMBER COMPANY, STEARNS, KEN- TUCKY and UNITED MINE WORKERS OF AMERICA, DISTRICT 19, STEARNS , KENTUCKY Case No. C-827.-Decided February 18, 1939 Coal Mining Industry-Settlesnent : stipulation providing for cessation of un- fair labor practices, back pay to 67 discharged employees, reinstatement of 23 of them, and dismissal of complaint as to 8 others-Order : entered on stipula- tion. Mr. Charles M. Ryan, for the Board. Mr. H. C. Gi lis, of Williamsburg, Ky., Mr. Charles I. Dawson, of Louisville, Ky., Mr. Edward E. Barthell, Jr., of Chicago, Ill., and Mr. G. W. Hatfield, of Whitley City, Ky., for the respondent. Mr. T. C. Townsend, of Charleston, W. Va., and Mr. William R. Lay, of Barbourville, Ky., for the Union. Mr. William B. Barton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Mine Workers of America, District 19, herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by Philip G. Phillips, Regional Director for the Ninth Region (Cincinnati, Ohio) issued its complaint dated February 2, 1938, against Stearns Coal and Lumber Company, Stearns, Kentucky, heroin called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. A copy of the com- plaint and notice of hearing thereon were duly served upon the respondent and the Union. Concerning the unfair labor practices, the complaint alleged, in substance, that the respondent by its officers and agents had at vari- ous times from January 25, 1936, to November 12, 1937, both dates inclusive, discharged and refused to employ 98 named persons for the 11 N. L. R. B., No. 40. 423 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason that said persons joined and assisted the Union and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection; that the respondent during Septem- ber 1935, sponsored, encouraged, and formed an organization known as the Citizens League, the purpose of said Citizens League being to interfere with and destroy the Union; that the respondent through its officers and agents at various times after July 5, 1935, made state- ments derogatory to the Union and attempted to drive the Union out of the neighborhood of Stearns, Kentucky. On February 15, 1938, the respondent filed its answer to the com- plaint, admitting its corporate existence, but denying all other ma- terial allegations of the complaint and pleading affirmatively that it was not subject to the Board's jurisdiction. Pursuant to notice, a hearing was held at Stearns, Kentucky, on March 3, 4, 5, 7, 8, 9, 10, 16, 17, 18, 19, 21, 22, 23, 24, and 25 and April 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, and 18, 1938, before James G. Ewell, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel. Nine differ- ent motions were made by the respondent at the close of the Board's case and renewed at the close of the entire case, to dismiss the com- plaint as to various individuals, and in its entirety. The Trial Ex- aminer denied the motion to dismiss the entire complaint and his ruling is hereby affirmed. The Trial Examiner reserved ruling on the other motions. The Board with the concurrence of the Union moved to dismiss the complaint as to 21 named persons 1 because of their non-appearance: The motion was granted and is hereby af- firmed. During the course of the hearing the Trial Examiner ruled on various other motions and objections to the admission of evidence. The rulings are hereby affirmed. On August 1, 1938, the Trial Examiner filed his Intermediate Re- port, finding that the respondent had engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act and recommending that the respondent cease and desist therefrom, offer reinstatement with the back pay 2 to 67 3 named employees who he found had been unlawfully 1 Those as to whom the complaint was thus dismissed were : John Phipps Charles Trebalo Clifford Anderson Ray Long Joe Davis Ross Long Earl Coffey Haston Smith John Campbell Clifford Lavender Herman Cooper Porter Worley Gaston Reynolds Raymond Chipwood Bill Thomas John Privett Joe Winchester Sylvester Walters Bill Foster Milton Dagley Clint Anderson 2 The Trial Examiner made one exception to this recommendation , to wit, that James N. Jones, one of the complainants in this group, should be made whole only for the loss of wages suffered during his lay-off. 3 This group of 67 named employees is identical with that group to whom the sum of $14,750.00 is to be paid as provided in the stipulation hereinafter set forth. STEARNS COAL & LUMBER COMPANY ET AL. 425 discharged, and take certain other affirmative action. As to seven named employees 4 he recommended a dismissal because the complaint was not sustained as to them by the evidence. Exceptions to the Intermediate Report were filed by the respondent on August 22, 1938. On February 8, 1939, the respondent, the Union and the Board's Regional Director for the Ninth Region, entered into a stipulation for the purpose of settling the case, subject to approval by the Board. The stipulation provides that upon approval of it by the Board "the respondent withdraws its exceptions to the Inter- mediate Report in this matter." On February 15, 1939, the Board issued an order approving the stipulation. Under those circum- stances, we find it unnecessary to consider the respondent's exceptions. The stipulation reads as follows : It is hereby agreed by and between the parties hereto, viz : Stearns Coal and Lumber Company, United Mine Workers of America, District 19, and Philip G. Phillips, Attorney for the National Labor Relations Board, That 1. The Stearns Coal and Lumber Company is a corporation owning and controlling a large mining and lumber operation in McCreary County, Kentucky, which borders Tennessee. It owns about 47,000 acres in fee simple and the minerals in 80,000 acres, about half in Tennessee and half in Kentucky. The principal office and place of business is at Stearns, Kentucky, situated on a branch of the Southern Railway running south from Cincin- nati through Lexington, into, Knoxville and points south. Con- necting with the Southern at Stearns is a spur known as the Kentucky and Tennessee Railway wholly owned and controlled by the respondent. This is under the supervision and jurisdic- tion of the Interstate Commerce Commission and is operated as a common carrier transporting not only coal and lumber for the respondent but passengers and freight for the general public. Through its connection with the Southern, shipments and passengers are transported into various states. 2. The properties of the Kentucky and Tennessee Railway hereafter called the K & T Railway lie wholly within the state of Kentucky, but it maintains a connecting link into Tennessee whereby lumber from respondent's Tennessee acreage is trans- ported to the respondent's sawmill at Stearns. 3. In addition to the sawmill, one of the largest in that sec- tion of the county, respondent operates about 7 coal mines located at various points along the K & T Railway covering a distance of approximately 20 miles. All mechanical operations, including hauling the coal out of the mines, is performed by electricity, 4The complainants in this group were: Edward (Bud) Calhoun , John Ellis, John Hansford. Edgar Jones. Cleveland Jones, David Keitb, and Elihu Wilson. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD generated in the Company's own plant at Stearns. The Com- pany also supplies the village of Stearns and environs with electricity, telephone service, and water. 4. In addition to the mining and lumber operations, the respondent conducts a large wholesale and retail commodity business amounting to about $700,000 anually [sic]. The retail business is done through general stores or commissaries located in the Company's mining camps; the wholesale with various storekeepers within a radius of 50 miles. This is a very important part of the Company's business. Little profit is real- ized from the mining of coal which, for several years past, has shown a loss; but this loss is partly made up by a profit from the wholesale and retail commodity business. 5. About 2,000 people are employed, all told, three-fourths of whom are occupied in mining and the rest in the lumber, commis- sary, and railway operations. 6. The lumber and coal are marketed chiefly in carload lots and are shipped to various points throughout the United States. 7. The respondent owns retail coalyards in Fort Wayne, Indiana, and Chattanooga, Tennessee, each distributing 5,000 to 20,000 tons of coal anually [sic]. Some of its principal customers elsewhere are F. S. Martin of Chicago, who accounts for from 10,000 to 15,000 tons per year; Abrahamson and Neiheim, of Luddington, Michigan, 10,000 tons per year; Standard Coosa & Thatcher of Chattanooga, Tennessee, 5,000 tons; Lawrenceburg Rolling Mills, of Lawrenceburg, Indiana, about 750 tons per year; Goodyear Tire & Rubber Company, in the State of Georgia, about 750 tons a year; and similar accounts in Alabama and Iowa. The Company also has 200 or 300 accounts consisting mostly of small dealers in various adjoining States, including the State of Ohio. Large tonnage is sold to the Southern Railway for engine fuel. 8. Lumber is sold to the National Cash Register Company at Dayton, Ohio ; N. B. Farrin Company, Cincinnati, Ohio ; and Baldwin Piano Company, Cincinnati, Ohio. At least 25 per cent of all lumber sold is sold outside of the State of Kentucky and a much larger proportion is sold to concerns which in turn ship portions of the lumber into other states. 9. Virtually all of respondent's coal and lumber enter the stream of commerce via Kentucky and Tennessee Railway Company through its connection with the Southern. The total production of coal in 1936 was 585,525.33 tons and in 1937, 707,643.10 tons. Of those amounts in 1936, 54.98 per cent was shipped out of the State of Kentucky and in 1937, 57.91 per cent. The volume enter- ing interstate commerce is more than substantial. STEARNS COAL & LUMBER COMPANY ET AL. 427 10. This settlement agreement is expressly subject to the ap- proval of the National Labor Relations Board. 11. The parties hereto waiving all right to further hearing in this matter as well as to findings of fact or conclusions by the National Labor Relations Board, consent to an entry in this pro- ceeding of the following ORDER Upon the basis of the stipulation of settlement, the pleadings, and pursuant to Section 10 (e) * of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, the Stearns Coal and Lumber Company, Stearns Kentucky, and its officers, agents, successors and assigns shall : 1. Cease and desist: (a) From interfering with, restraining, and coercing its em- ployees 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 con- certed activities, for the purpose of collective bargaining or other mutual aid or protection. (b) Discouraging membership in the United Mine Workers of America, District 19, or in any other labor organization of its employees, by discharging or threatening to discharge, or refusing to reinstate, any of its employees, or otherwise dis- criminating in regard to hire and tenure of employment, or any term or condition of employment, or by threatening such discrimination. 2. Take the following affirmative action : (a) Offer to Herman Alred Eddie Hickman Nip Barnett Ed Hines Orville Barnett Geo. Riley Hughes Albert Bowden Bill Jones Oakley Bowden Lancing Lyons Ernest Boles John Riley Reed Dewey Chitwood Bradley Roberts Alvin Clark Everett Taylor Harlan Faust Homer Taylor Marion Faust Harley Tucker James Gibson Wiley Worley Jack Haynes within fifteen days after the entry of this order, immediate and full reinstatement to their former or substantially equivalent. * Sic. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positions, without prejudice to their seniority or other rights and privileges. (b) Pay to Herman Alred Nip Barnett Orville R. Barnett H. Beard Bell William A. Bell Ernest Boles Albert Bowden Oakley Bowden Lawrence Brown Sylvan T. Carr Dewey Chitwood J. S. Chitwood Speed Chitwood Wilburn Chitwood Alvin Clark Frank Cooper Edward Daniels James Davis Elmer Duncan Joe Dupee John Dupee Buren Duvall Harlan Faust Marion F. Faust James Garland James Gibson Rufus Godsey Thomas L. Gregory J. L. Hancock George B. (Jack) Haynes Edward Hickman Edward Hines Jess Hines George Riley Hughes Andrew Jennings J. E. Johnson James N. Jones William Jones Ben Keith Elburn Keith Estil Keith James Kidd Lancing Lyons John Matthews Benjamin Harrison Morrow Luther Morrow Ralph Patton Arthur Perkins Luther Perkins Marshall Phillips Sam Price Hurshel Privett John Reed James Richards Bradley Roberts Lawrence Roberts George M. Smith Arnold Spradlin L. Jerome Stanley Everett Taylor Homer Taylor Wheeler Trammell Green B. Tucker Harley Tucker Pierce Worley Wiley Worley Israel Young the aggregate sum of $14,750.00 to be divided among the afore- mentioned individuals in such amounts as may be determined by the Regional Director of the Ninth Region of the National Labor Relations Board. (c) Immediately post notices to its employees in conspicuous places throughout its mines and properties that it will cease and desist in the manner aforesaid and maintain such notices for a period of 60 consecutive days. STEARNS COAL & LUMBER COMPANY ET AL. 429 (d) Notify the Regional Director of the Ninth Region of the National Labor Relations Board within 20 days from the date of this order what steps respondent has taken to comply there- with. It is further ordered by the Board that the complaint by and on behalf of David Keith Edgar Jones Cleveland Jones Elihu Wilson John Hansford Edward (Bud) Calhoun John Ellis Horace Price be and same is hereby dismissed. 12. It is understood that by consenting to the entry of the foregoing order, the respondent does not admit that it has been guilty of any of the unfair labor practices mentioned therein. 13. The parties hereto expressly consent that the Sixth Circuit Court of Appeals of the United States may enter an enforcement order in this matter embodying the terms of the order herein referred to and that notice for hearing on such proceeding in the aforementioned Circuit Court of Appeals is hereby expressly waived. 14. Upon the approval of this agreement by the National Labor Relations Board the respondent withdraws its exceptions to the Intermediate Report in this matter. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Stearns Coal and Lumber Company, a corporation, is engaged principally in the business of mining coal, lumbering, railroading, and merchandising. It owns properties in both Tennessee and Ken- tucky. Its principal office and place of business are at Stearns, Kentucky. The Kentucky and Tennessee Railway is wholly owned and con- trolled by the respondent. It connects with the Southern Railway at Stearns and is a common carrier transporting passengers in inter- state commerce and handling interstate freight shipments both for the respondent and the general public. It is subject to the jurisdiction of the Interstate Commerce Commission. Furthermore, through this line's connection with other railway carriers operating in Tennessee, it transports timber from the respondent's acreage in Tennessee to a sawmill of the respondent at Stearns, Kentucky. The respondent owns about seven coal mines in Kentucky at differ- ent points along the Kentucky and Tennessee Railway. The re- 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's total production of coal in 1936 was 585,525.33 tons, and in 1937, it was 707,643.10 tons. Of the production in 1936, 54.98 per cent was shipped to points outside of Kentucky, and in 1937, 57.91 per cent was shipped to such points. At least 25 per cent of the lumber produced by the respondent is sold outside of Kentucky. The respondent also conducts a large wholesale and commodity business through stores and commissaries which it owns and through sales to retailers. This business amounts to about $700,000 annually. There are a total of approximately 2,000 people employed by the respond- ent, three-fourths of whom are engaged in mining and the others in the lumbering, commissary, and railway operations. We find that the respondent through its wholly owned subsidiary, the Kentucky and Tennessee Railway, is engaged in commerce and that the above-described mining and lumbering operations of the re- spondent constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact and stipulation, and 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 Stearns Coal and Lumber Company, Stearns, Kentucky, and its officers, agents, successors, and assigns shall: 1. Cease and desist : (a) From interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or pro- tection ; (b) From discouraging membership in the United Mine Workers of America, District 19, or any other labor organization of its em- ployees, by discharging or threatening to discharge, or refusing to reinstate, any of its employees, or otherwise discriminating in regard to hire and tenure of employment or any term or condition of employment, or by threatening such discrimination. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Herman Aired, Nip Barnett, Orville Barnett, Albert Bowden, Oakley Bowden, Ernest Boles, Dewey Chitwood, Alvin Clark, Harlan Faust, Marion Faust, James Gibson, Jack Haynes, Eddie Hickman, Ed Hines, Geo. Riley Hughes, Bill Jones, Lancing Lyons, John Riley Reed, Bradley Roberts, Everett Taylor, Homer Taylor, Harley Tucker, and Wiley Worley, within fifteen days after STEARNS COAL & LUMBER COMPANY ET AL. 431 the entry of this order, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Pay to Herman Alred, Nip Barnett, Orville R. Barnett, H. Beard Bell, William A. Bell, Ernest Boles, Albert Bowden, Oakley Bowden, Lawrence Brown, Sylvan T. Carr, Dewey Chitwood, J. S. Chitwood, Speed Chitwood, Wilburn Chitwood, Alvin Clark, Frank Cooper, Edward Daniels, James Davis, Elmer Duncan, Joe Dupee, John Dupee, Buren Duvall, Harlan Faust, Marion F. Faust, James Garland, James Gibson, Rufus Godsey, Thomas L. Gregory, J. L. Hancock, George B. (Jack) Haynes, Edward Hickman, Edward Hines, Jess Hines, George Riley Hughes, Andrew Jennings, J. E. Johnson, James N. Jones, William Jones, Ben Keith, Elburn Keith, Estil Keith, James Kidd, Lancing Lyons, John Matthews, Benjamin Harrison Morrow, Luther Morrow, Ralph Patton, Arthur Perkins, Luther Perkins, Marshall Phillips, Sam Price, Hurshel Privett, John Reed, James Richards, Bradley Roberts, Lawrence Roberts, George M. Smith, Arnold Spradlin, L. Jerome Stanley, Everett Taylor, Homer Taylor, Wheeler Trammell, Green B. Tucker, Harley Tucker, Pierce Worley, Wiley Worley, and Israel Young, the aggregate sum of $14,750.00 to be divided among the afore-mentioned individuals in such amounts as may be determined by the Regional Director of the Ninth Region of the National Labor Relations Board; (c) Immediately post notices to its employees in conspicuous places throughout its mines and properties that it will cease and desist in the manner aforesaid and maintain such notices for a period of 60 consecutive days; (d) Notify the Regional Director of the Ninth Region of the National Labor Relations Board within 20 days from the date of this order what steps respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint, in so far as it pertains to David Keith, Cleveland Jones, John Hansford, John Ellis, Edgar Jones, Elihu Wilson, Edward (Bud) Calhoun, and Horace Price, be, and the same hereby is, dismissed.